SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v D [2002] QCA 445 PARTIES: R v D (appellant) FILE NO/S: CA No 189 of 2002 DC No 1351 of 2002 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction & Sentence District Court at Brisbane DELIVERED ON: 25 October 2002 DELIVERED AT: Brisbane HEARING DATE: 20 August 2002 JUDGES: ORDERS: McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made Appeal against conviction and application for leave to appeal against sentence dismissed CATCHWORDS: CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON OTHER OFFENCES AGAINST THE PERSON SEXUAL OFFENCES BUGGERY AND INDECENT ASSAULT OR DEALING PROOF AND EVIDENCE where appellant was convicted of indecent dealing of the complainant on the fourth count of an indictment but acquitted of the first three counts where complainant s evidence was contradicted by her father s evidence on the first three counts but not on the fourth where complainant independently and without prompting recalled the events constituting the fourth count but required prompting for the first three whether verdict of guilty on the fourth count is unsafe and unsatisfactory due to the verdicts of acquittal on the first three counts CRIMINAL LAW JUDGMENT AND PUNISHMENT SENTENCE FACTORS TO BE TAKEN INTO ACCOUNT CIRCUMSTANCES OF OFFENCE where appellant was in position of trust in relation to complainant child where no remorse demonstrated where no plea of

2 2 guilty whether sentence manifestly excessive Jones v R (1997) 191 CLR 439, distinguished M v R (1994) 181 CLR 487, considered Mackenzie v R (1996) 190 CLR 348, followed R v Gleadhill [2002] QCA 204;CA No 326 of 2001, 14 June 2002, distinguished R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, distinguished R v Maddox [1998] QCA 413; CA No 299 of 1998, 4 December 1998, considered R v Markuleski (2001) 52 NSWLR 82, distinguished R v NEK [2001] NSWCCA 392; CA No of 2000, 3 October 2001, followed R v P [2000] 2 Qd R 401, distinguished R v S [2002] QCA 167; CA No 307 of 2001, 14 May 2002, distinguished COUNSEL: SOLICITORS: A Rafter for the appellant C W Heaton for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent [1] McMURDO P: I have read the reasons for judgment of Jerrard JA in which the facts and issues are set out. I will only repeat those necessary to explain my reasons. [2] The appellant contends the jury verdict of guilty on count 4 is unsafe and unsatisfactory because it is inconsistent with the not guilty verdicts on counts 1 to 3. The question is whether, giving due weight to the jury's verdicts, the verdicts are in all the circumstances an affront to logic and common sense: see Mackenzie v The Queen. 1 [3] I agree with Jerrard JA that there are logical reasons in this case to explain the jury's verdicts. [4] The judge explained to the jury in his summing-up that before they could convict the appellant they would have to be satisfied beyond reasonable doubt of the complainant's evidence, also explaining that they may accept parts of her evidence and reject other parts. His Honour reminded the jury that there were inconsistencies in the complainant's evidence; that her evidence had been contradicted by her father on some points and that she could not remember the earlier incidents (counts 1-3) until reminded of them; these matters may cause them to scrutinise her evidence very carefully. [5] The defence case was not that the complainant was maliciously making false allegations against the appellant, but rather that she was unreliable and confused. In summing up the defence case, his Honour reminded the jury that the complainant's evidence as to counts 1-3 was inconsistent with her father's evidence; the complainant had to be reminded about counts 1-3 and the only count that she could 1 (1996) 190 CLR 348, 368.

3 3 recall independently was count 4; the defence contends that these matters raise a reasonable doubt and the jury would acquit on all counts. [6] There was an obvious rational basis for the jury's verdicts which was consistent with the conduct of the defence at trial. The complainant had apparently no independent recollection of counts 1-3, at least before being reminded of them at some stage, but did have an independent recollection of count 4. In addition, her evidence as to counts 1-3 was contradicted by her father's evidence. [7] This is not a case where the jury's verdict of acquittal on counts 1-3 was necessarily a finding that the complainant was dishonest or so inherently unreliable as to inevitably taint her credibility or reliability on the other counts: see R v Gleadhill 2 and compare R v Markuleski; 3 R v M 4 and R v S. 5 The verdicts were not an affront to logic and common sense; there was a rational explanation on the evidence for them. The inconsistent verdicts do not render the guilty verdicts unreasonable or unsafe and unsatisfactory. [8] The appeal against conviction should be dismissed. [9] As to the application for leave to appeal against sentence, this was a comparatively minor example of indecent dealing, but nevertheless, in the absence of significantly mitigating circumstances, custodial sentences are usually imposed in such cases as a deterrence and to express the community disapproval of such conduct. The appellant was 36 years old and the complainant was only about eight years old. The appellant was the uncle of the complainant and his offending was a betrayal of trust. The appellant was convicted after a trial and does not have the mitigating circumstances of remorse or a timely plea of guilty. In the circumstances, the sentence imposed was within a sound exercise of the sentencing discretion. [10] I would refuse the application for leave to appeal against sentence. [11] JERRARD JA: The appellant D appeals against his conviction on 15 May 2002 of the offence of unlawfully and indecently dealing with his niece T, then a child under the age of 12 years. The offence was alleged to have occurred on a date unknown between 1 January 1996 and 31 December 1999, at Eight Mile Plains. He was sentenced to six months imprisonment, and it was ordered that he be on probation for the next two years. Mr D has also applied for leave to appeal against that sentence. [12] The appellant was tried on an indictment containing four counts, each alleging he unlawfully and indecently dealt with his niece T between those dates. He was acquitted of the first three counts. The sole ground of appeal is that his conviction on count four is unsafe and unsatisfactory, which argument is advanced essentially on the ground that that conviction is inconsistent with the acquittals on counts 1-3. [13] The evidence led at the trial was in short compass. A plain clothes Senior Constable, who in January 2001 was attached to the Upper Mt Gravatt Juvenile Aid Bureau, gave evidence in which that officer provided the formal proof of a video [2002] QCA 204, CA No 326 of 2001, 14 May 2002, [31]. (2001) 52 NSWLR 82. [2001] QCA 458; CA No 126 of 2001, 26 October [2002] QCA 167; CA No 307 of 2001, 14 May 2002.

4 4 taped interview between the complainant child and two police officers on 19 January The transcript of that interview reveals that in or about January 2000 the complainant child had spoken with two police officers, apparently about the same matters that were the subject of the indictment, and had told those police officers that she didn t want to say anything. When reminded of that during the video taped interview on 19 January 2001 the complainant said that she had so spoken at that time because: I was only eight and I didn t understand. The evidence did not reveal by what means police became aware in January 2000 that there was apparent reason to suspect the appellant had committed offences with respect to the complainant. [14] The complainant child was called for cross examination at the trial via a teleconference link. In cross examination she gave evidence which supported all four counts on the indictment. The video tape of the January 2001 interview had already been played to the jury in her absence. [15] The only other witness was her father K, called by the prosecution. His evidence contradicted hers in important respects. The appellant elected not to give or call any evidence. The Evidence by Video [16] The complainant s description in the video taped interview of the events which underlay the first three counts in the indictment, was that she was then living in a house on the beach front, and uncle D had touched her where he shouldn t have. That was down there, on the part of her body she called her fanny. The first occasion identified in that video taped interview on which that touching occurred, was when on one night he took me off my bed and he took me into the (sic) N s bed. Her description in that interview was that N (her elder sister) was not there that night, because N was staying at her friend s place. The described touching occurred with the appellant s finger. [17] Her description in the video taped interview was that she told the appellant to stop and he replied to the effect don t worry, it will be all right, and gave the complainant child a dollar not to tell anyone. In response to a somewhat leading question she then volunteered that, and apparently on the same occasion, the appellant had got my hand, like, and forced me to touch his doodle. She described the appellant having brang (sic) down his jeans for that purpose. [18] Her description in January 2001 was that she had told dad the next morning that the appellant had touched me where he shouldn t, and she added that: Dad was going say something but he was too scared because Uncle D is older than him. She also said about that same event that: And, um, and I was going to go and tell dad but, like, I told dad and he said, and he said nothing, because he thought, like, he didn t know what was actually happening. [19] Those matters constituted the first two counts in the indictment. Each of the first three counts alleged offences occurring at Wynnum, and K s evidence was that in

5 5 1997, and in the first part of 1998, the complainant child had lived with her parents and her brothers and sisters in the Esplanade at Wynnum. With respect to the third offence allegedly committed when the complainant lived there, her description in the video taped interview was that a few days after the first occasion the family had crab for dinner and I spewed up. Afterwards she was going to go and sit on her father s lap and he was watching TV, and so I sat on Uncle D s lap and he touched me there again. This touching was described as the appellant having stuck his hand down in the front down there and touched me, with that touching occurring on the inside of her undies. The described touching was with a finger. Her description in the video taped interview was that: I told dad again. and further that I told mum and dad when they were living together that Uncle D had touched me there. [20] At that part of the video taped interview, she corrected herself as to the sequence of events, describing the occurrence said to have happened after the meal of crab as being the first time I m not sure, I think this was the first time, and the other one was the second time ; and then described how mum told dad to get him out of the house but he didn t. Like he did, but Uncle D wouldn t go. It appears from that answer that the appellant was being described by the complainant child as then living with her parents and family. [21] K s evidence was that the appellant was his younger brother, who did not ever live with the family at the address at the Esplanade at Wynnum. K s evidence was that the appellant occasionally visited that address, but never stayed there overnight. He also swore that during that period none of the children had stayed overnight at friends places, and specifically that N had not done so when the family lived at Wynnum. His evidence included the description of himself having not been there of a night time because he was doing a night shift at the Brisbane Convention Centre. He denied that any occasion ever arose when he was present watching television with the appellant present, and with his daughter T on his brother s lap. [22] More importantly, he swore on cross examination that on no occasion when the family were living at Wynnum had the complainant child complained about the appellant touching her in any inappropriate way. Thus, with respect to all three of the first counts K contradicted his daughter, both as to the actual opportunity or occasion on which the offences could have been committed as described by her in that interview, and as to any complaint having ever been made at the time to him. If his evidence was accurate there was simply never an occasion on which N s bed was empty by reason of N being absent for the night, and nor had the two brothers been sitting watching television together on any evening, whether or not the complainant child had been psychically unwell after eating crab. The Evidence by Teleconference [23] When giving evidence in cross examination, the complainant child described how she had lived near the beach front at Wynnum at a household that included her three brothers, two sisters, parents and grandfather. Uncle D had visited but not often, and stayed overnight once.

6 6 [24] She described as the first occasion when any impropriety had occurred that occasion when she had had crab to eat. Her description was that her mother and father were sitting on a big couch watching television as were her grandfather, brother A, and the appellant. The latter was sitting on a single couch, and invited her to sit on his lap. While she did, he put his hand inside her clothes, and started touching me on her private. [25] Her evidence at first was that she did not tell either her father or her mother about this abuse of her, which had occurred in their presence. She then recalled that she did tell one or other of them once or twice, apparently about the appellant. [26] She described the next occasion on which abuse occurred as being when still living in the same house, and this was the time when she said she was taken out of her bed and placed in N s by the appellant. She repeated the description that N had been staying at a friend s house, and that the appellant was sleeping in N s bed. She described the appellant as having touched my private again on that occasion, and also how he had asked her to put her hand on his doodle. She said she had refused, and had then been forced to do it. She also said in evidence that she did not actually recall (until a few days before giving her evidence) any of those described events, but had been reminded of them by someone outside the court. She did not describe any one dollar bribe to remain silent, or specifically that she had told either parent about what the appellant had done in that bedroom. [27] To that extent, that is, the absence of a claim in her evidence of having told her father about it, her father s evidence was less damaging to her actual evidence in cross examination than it was to her account given a little over a year earlier to the two police officers. It was not clear from her evidence in cross examination that she claimed to have ever told her father about any event at Wynnum. However, her father s evidence still contradicted hers as to the possibility of there being an occasion when the appellant had been sleeping in N s bed in the bedroom the three girls shared, and denied the possibility of an occasion when the two brothers, the complainant, and others were seated watching television together in that house. In light of the evidence of K contradicting both the complainant s evidence on those first three counts, as well as her description in the interview of those matters, it is hardly surprising that the jury acquitted the appellant on those. Indeed the appellant would have had a good argument that any convictions on those three counts was unsafe and unsatisfactory by reason of K s evidence. Count Four [28] K s evidence offered less contradiction to the complainant child in respect of count four. The complainant s description, both in the video taped interview and in cross examination, was that that incident occurred when she was living with both parents, her brothers, and sisters at her grandmother s house at Eight Mile Plains. Her video taped interview described an occasion on which she had been sitting on the appellant s lap playing a game, and the appellant had touched me there. This was done with one finger which had been inserted inside her clothes. Her account in the interview was that: S asked what was he doing because I told him to stop it and S asked what he was doing and um I didn t tell her until after the game because like I didn t want Uncle D to know. (S is a younger sister).

7 7 [29] She went on to say that she had told this other guy living with us, JC (presumably about the incident) who was my cousin s friend. She described that in interview how she told JC, who told her father, and then, Dad told him to leave again and he wouldn t. She went on to describe how dad told Nana, and how Nana wanted to speak to Uncle D and he asked um, Nana asked me if he didn t, did do it and he said no but he actually did. [30] A not dissimilar account was given in evidence which was that the appellant was living in that same house for a little while, and that when the appellant was playing a card game the complainant had sat upon his lap because she was helping him to play the game. Her evidence went on:. And then my little S (sic) come in and sat on his lap and he touched me again on the private part and S asked what are you doing? What is he doing? I said don t worry about it. I ll tell you later. Then I whispered to her what had happened and, yeah, and then I went and told JC. A little later in evidence she added that she had not told her parents but that N told my dad. [31] There are some discrepancies between the account given in the interview, and that given in evidence. The latter omits the chain of communication which resulted in the grandmother questioning either the appellant or the complainant about the matter. Both accounts include the self corroboration of having told S and JC. [32] K s evidence on this count included the assertion that when the family lived at that address in Eight Mile Plains, his daughter T did not ever complain to him about anything, which in the context of the cross examination clearly meant any inappropriate touching by the appellant. He was not asked in cross examination if either N or JC had told him anything about any asserted inappropriate touching of the complainant child by the appellant. [33] There was no evidence from any other person of any fresh complaint made by the complainant child about the behaviour alleged in count four. There was no corroboration of her evidence at all. That is not fatal to a conviction, and considered in isolation the admissible evidence on that account does not demonstrate that a conviction on it is unsafe and unsatisfactory. K s evidence was that the appellant did live for a period of time in the house at Eight Mile Plains, when the children including the complainant were living there. On K s evidence the children s residence there ended in December 1999, when they went into foster care, and K himself then went to live at a different address. K s evidence on count four thus confirmed at least the possible opportunity for the appellant as a coresident at Eight Mile Plains to commit the offence alleged against him, and the jury may well have noted that the complainant child did not say in either the video taped interview, or her evidence in cross examination, that she had directly complained to her father about the commission of that particular offence. The jury may also have noticed that the cross examiner was apparently careful not to ask if anyone else had told him at the relevant time, of a complaint by his daughter T that the appellant had indecently dealt with her at that house at Eight Mile Plains.

8 8 [34] The appellant submits that his conviction on count four is rendered unsafe and unsatisfactory by reason of the acquittals on the first three counts. The submission is that the verdicts are inconsistent. The appellant s argument, refers first to the decision of Gaudron, McHugh and Gummow JJ in Jones v R (1997) 191 CLR 439, in which their Honours were determining an appeal in which that appellant had been convicted on the first and third of three counts alleging sexual intercourse between that appellant and a female child, at a time when he was an instructor at a gymnastics academy at which the complainant child was a pupil. The appellant was acquitted on the second count. The first two acts had allegedly occurred in the gymnasium after training sessions, and the third in the appellant s home. That appellant had called and given evidence denying commission of the offences, and challenging even the possible opportunity on which to commit them. [35] After referring to and accepting the test formulated in the majority judgment in M v R (1994) 181 CLR 487 at 494, as the test for determining whether a verdict is unsafe or unsatisfactory, their Honours went on in Jones v R to remark that the jury s rejection of the complainant s account on the second count diminished her overall credibility. They further considered that there was nothing in the complainant s evidence or the surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count. 6 They considered that given the jury s findings on the second count, it was not open to them on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Their Honours noted the evidence given by the appellant s wife and daughter, to the effect that each had been present during and after the gymnasium classes at the relevant times; and their Honours went on to observe that once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the crown case on the first and third counts wore a different completion. For it meant, that when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. As we have already said, nothing in the complainant s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third counts than it was in respect of the second count. 7 [36] The same point is probably available here. The jury may have found that the complainant s evidence with respect to the first three counts lacked sufficient cogency to convict, when set against the evidence of her father. However, there is a feature present in this case, and not present in the matters under consideration in Jones v R. This is that there is a ground for considering the quality of the complainant s evidence being higher in respect of the fourth count than in respect of the first three. This was her evidence in cross examination that in respect of the first three counts she had been reminded in the last few days prior to being cross examined of the events described by her in cross examination about those counts, and that prior to being so reminded she had not remembered any of those events. In contrast she swore that she had remembered that one, when being further cross examined about her description of the events constituting count 4. [37] The joint judgment of Thomas JA and Chesterman J of this Court, in R v P [2000] 2 Qd R 401 at 410, holds that there will be a significant possibility that an innocent 6 7 Jones v R at CLR page 453. Jones v R at 455.

9 9 person has been convicted when there is no discernable rational basis for differing verdicts by a jury. Absent that the discernable rational basis, the fact of differing verdicts demonstrates that the jury could not reasonably have come to the conclusion (of guilty) that it did. Applying that analysis, there appear to be two discernable bases for the differing verdicts which would not show a miscarriage of justice. These are firstly that the complainant s evidence on the fourth count is not contradicted by her father s as on the first three counts, and the second the fact of her assertedly own independent and unprompted recall of the events constituting the fourth count, when compared to her admittedly prompted description of the first three. [38] No complaint is made on this appeal of the fact that evidence was led of the complainant s self description of her having complained to JC after the commission of the fourth offence, and her further account in the video taped interview of the chain of progression of that complaint ending in her grandmother s having confronted the appellant. The jury was instructed as to the use it might properly make of any recent complaint which it accepted the complainant child herself had made. (The record showed the learned judge was told early in the trial, in submissions by the appellant s counsel, that the complainant s evidence at the committal hearing was that a complaint made to her father was repeated by her father in her presence, and by her grandmother in her presence, and there had been a conference in the complainant s presence between her father and grandmother about the matter. This was not led in cross examination; it undoubtedly explains the absence of complaint by counsel). [39] No directions were sought at the trial which reflected a recent development in the law in cases of this nature. This is the view that in such cases, as a general rule, a trial judge should direct the jury that a reasonable doubt with respect to the complainant s evidence on any count ought to be taken into account in their assessment of the complainant s credibility generally. McPherson JA and Jones J considered in R v M [2001] QCA 458 that a majority of the New South Wales Court of Appeal had so held in R v Markuleski [2001] 52 NSWLR 82. McPherson JA and Jones J respectfully agreed that in some, perhaps many, cases of this kind, it is desirable that such a direction be given. When giving the judgment of the court in R v S [2002] QCA 167 McPherson JA held that in that particular case that qualifying direction ought to have been given. [40] In this case it was not, and the learned judge directed the jury in more conventional terms that they might accept parts of the evidence as they thought fit, and that it was a question for them as to what evidence they accepted, and what evidence they rejected. I consider that in cases of this nature both those more conventional directions, and the qualifying direction suggested in R v M and R v S are appropriate. After all it is only a common sense observation, and probably one that most juries make most of the time, that a reasonable doubt about a complainant s evidence on one count should be taken into consideration when assessing credibility generally. It does not follow at all that differing verdicts on differing counts will be judged inconsistent on appeal. That will still depend upon whether, as described in R v P, there is a discernable rational basis for the differing verdicts. [41] Much the same was said by the New South Wales Court of Criminal Appeal in R v NEK [2001] NSWCCA 392, where Priestley JA, giving the judgment of the court, said of the decision in Markuleski that the judgment of Spigelman CJ therein had, as

10 10 its principal point, that the decision (of the High Court in Jones v R) was not authority requiring Courts of Criminal Appeal to regard mixed verdicts of acquittals and guilty, when all depended upon the evidence of a complainant, as necessarily showing inconsistency by the jury. Priestley JA went on to remark 8 that in light of the authorities as interpreted in Markuleski, the question for Courts of Criminal Appeal when considering an inconsistency ground of appeal was whether, as a matter of logic and reasonableness, the court is satisfied, after considering all the relevant circumstances of the case, that there is an acceptable explanation for the differentiation between the divergent verdicts. It appears to me that the Queensland Court of Appeal had reached the same position in R v P. [42] Had the direction suggested in R v M and R v S been given in this case it would still have been open to the jury to return a verdict of guilty on count four. Had that occurred the appellant would have had a more difficult argument in complaining that the verdicts were inconsistent, since the effect of an R v M direction is that the jurors would be required to take notice of their own acquittals on counts 1, 2 and 3 when determining whether the complainant s evidence, when scrutinised carefully, persuaded them beyond reasonable doubt on count four. An R v M direction was not sought in this case, and I do not consider its omission deprived the appellant of any legitimate chance of an acquittal. The jurors were entitled to take a different view of count 4 from counts 1, 2 and 3; and they did. [43] Regarding the application for leave to appeal against sentence, the applicant has a relatively minor record of findings of guilty for drug offences (apparently prohibited plants or cannabis sativa) in 1985, 1986, 1990, 1999 and There is also recorded a finding of guilt in respect of the possession of a weapon whilst not being the holder of a licence, for which matter he was placed on probation for 18 months in September When the circumstances of the commission of the offence in count 4 are considered, in which the critical fact is that the applicant was in a position of trust in relation to the complainant child, and considered against the background of even that relatively minor history of other appearances in court, the sentence imposed by the learned judge of the District Court does not appear to be manifestly excessive in a matter in which no remorse at all was demonstrated. Observations on Procedures [44] I think it appropriate to remark upon the sparsity of the evidence upon which the jury was asked to form views about the reliability of the complainant s evidence, and her father s, and upon the issue of the occurrence of sexual abuse beyond reasonable doubt. I make these comments because of my experience in serving as a Judge in the Family Court of Australia for four years. In that court, if there were proceedings involving this child in which an issue was the level of risk that the appellant posed to her if he was allowed contact with her, or if the issue was the capacity of her father, (or mother for that matter), to satisfy the complainant child s need for protection from the risk of exploitative sexual behaviour by males in the father s household including the appellant, a judge would ordinarily have expected far more evidence to have been given. The usual procedures and practices of that court would have resulted in the child being separately represented, and a careful assessment being made by an experienced social worker or psychologist (or both), of the relevant family and extended family members, and their interrelationships. 8 Paragraph 32 of the decision in NEK.

11 11 This would have included an assessment of the parents, the child, and the appellant. Ordinarily, if the father was defending his brother s behaviour with the complainant child, and asserting that the appellant presented no risk to the child, the father would be expected to ensure the attendance of the appellant for those assessments, and to ensure that the affidavit evidence in the father s case included one from the appellant. [45] The child representative would ordinarily ensure that all other apparently relevant adults either swore affidavits and provided themselves for cross examination, or were subpoenaed to attend, and were cross examined. Those would include all of the adults said to have been recipients of fresh complaints, or to have passed on those fresh complaints, or to have discussed those with the appellant. A careful examination would have been made of the records held by all bodies such as the Department of Families, the Police, the child s General Practitioner, and the like, which recorded any statements made by either parent, the appellant, or the child, relevant to the fact or probability of the occurrence or non occurrence of the sexual abuse of the child by the appellant. All relevant adults would have been cross examined, and no children would be. The video taped interview would be admitted into evidence, as would be the record of all that each parent said the child had said (or not said) about the matter; and what the child had said to any other adult apparently concerned with the child s welfare, such as officers of the Department of Families, and the professionals who assessed the child and her family relationship on behalf of the child s representative. The result of all that would be that the court would have a considerable body of evidence upon which to draw when making a decision about the reliability and accuracy of the complaint recorded in the video taped conference. [46] Others may share my view that it is an unacceptable oddity in this 21 st Century that the criminal processes in this State place the entire evidentiary burden of proof of the serious charges brought against the appellant upon the evidence of a child who was only 11 and a half years old in May 2002, whereas other courts making equally important determinations on the same topic of the sexual abuse of children by family or extended family members routinely, and almost invariably, gain information from many other sources, and positively discourage the concept that truth can be ascertained by the cross examination of a child. My opinion after observing and participating over a long period in the practices of the criminal jurisdictions of courts in this State as a Barrister, and for a brief period as an acting judge of the District Court, when comparing those practices to that of the Family Court of Australia from the position of four years experience in it as a Judge, is that the practices and procedures of the latter court provide a sound and satisfactory basis for judgment, and that those routinely engaged practices and procedures are far more a search for the truth than the procedures of the State criminal courts. I suggest that in cases of this nature, the focus of the inquiry ought to be upon what has happened in the child s life rather than upon proof of a criminal charge, although the enquiry into what has happened may well establish that a criminal offence has been committed; and the procedures routinely used in the criminal jurisdiction should be radically reconsidered. This would require a paradigm shift, but would assist those who are wrongly accused in having that fact identified. [47] I would order that the appeal against conviction and the application for leave to appeal against sentence be dismissed.

12 12 [48] HOLMES J: The fundamental question in the appeal against conviction is whether there is any rational basis for distinguishing between the evidence which resulted in a verdict of acquittal on counts one to three of the indictment and that on count four, on which the appellant was convicted. 9 There were, as Jerrard JA has identified, two possible bases of distinction. The first was that the complainant s evidence on the first three counts was contradicted by her father s evidence to the effect that she had made no complaint of sexual assault to him and that the opportunity for such assaults by his brother did not exist; and the second, the complaint s concession that she had forgotten, until reminded, about the events involving the first three counts, while recalling the circumstances of the fourth. [49] The first of those bases, of course, raises the question whether, if it was the father s evidence which caused the jury to have a reasonable doubt in respect of the first three counts, there should have been a corresponding impact on its view of her reliability in respect of the fourth count. But it is not inevitably the case that a jury must have a doubt on uncorroborated evidence where on other counts there has been evidence contradictory of the complainant s evidence: Any conclusion about this matter depends on the full range of relevant circumstances 10. Certainly a direction of the kind referred to in R v Markuleski 11 has the advantage of easing the task of an appellate court in determining that a jury has decided to accept a complainant s account on a particular charge, notwithstanding evidence which may contradict him or her on other counts. But the existence of contradictory evidence does not automatically affect credibility; and I am inclined to think that where it does, common sense will indicate to a jury that if a witness truthfulness or reliability is in doubt on one aspect, it may be suspect on others. Here, it was made clear to the jury that their view of the complainant s credibility was fundamental, and it was suggested to them by the learned trial judge that if they accepted the evidence of her father, it might cause them to scrutinise her evidence very carefully. I do not think there is cause for concern in the absence of a specific direction in Markuleski terms. [50] And the second of the bases of distinction does amount to a feature of the complainant s evidence which gives ground for supposing that her evidence was more reliable in relation to [the fourth count] than it was in relation to the [other counts] 12. The complainant s confidence in remembering the events giving rise to count four, as opposed to the other counts, gave her evidence on count four a very different quality, such that there is no necessary conclusion of inconsistency. The jury had this advantage over an appellate court: they saw and heard the complainant, albeit by closed-circuit television link, as she gave her evidence and made her point about the count she could remember without prompting. That advantage is capable of resolving any doubt here, so as to enable a conclusion that there was no miscarriage of justice. 13 [51] The sentence imposed does not seem to me to be outside the range of a proper exercise of sentencing discretion. Accordingly, I agree with the orders proposed by Jerrard JA in respect of both appeal against conviction and application for leave to appeal against sentence R v Maddox (1998) QCA 413; R v P [2000] 2 Qd R 401 at 404. R v Markuleski (2001) 52 NSWLR 82 at 111. at p Jones v R (1997) 191 CLR 439. M v The Queen (1994) 181 CLR 487 at 494.

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