GAX v The Queen [2017] HCATrans 96 (5 May 2017)

Last Updated: 5 May 2017

[2017] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2016

B e t w e e n -

GAX

Appellant

and

THE QUEEN

Respondent

BELL J
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MAY 2017, AT 10.00 AM

Copyright in the High Court of Australia

MR M.J. COPLEY, QC: If the Court pleases, I appear on behalf of the appellant. (instructed by Macrossan & Amiet Solicitors)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MS S.J. FARNDEN, on behalf of the respondent. (instructed by the Director of Public Prosecutions (Qld))

BELL J: Yes, Mr Copley.

MR COPLEY: Your Honours, in this matter, at appeal book 288, at paragraph [23], her Honour Justice Atkinson noted that the first ground of appeal that the court was taxed with in the Court of Appeal was a complaint that the verdict of guilty on count 3 was unreasonable. At paragraph [25] on the same page, her Honour stated what the test was for a court of appeal confronted with a complaint that a verdict was unreasonable, drawing upon this Court’s statements in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, at 20 to 22.

It is submitted that her Honour Justice Atkinson correctly identified that the task involved the consideration of the whole of the evidence in order to determine whether or not it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt on count 3. One must then, in my submission, turn to the end of the judgment to see her Honour’s conclusion, and that appears at page 293 of the record book, in paragraph [49], in the sentence which begins “It also shows that the verdict”.

My submission is that the word “It” is a reference to the evidence for count 3 because the sentence must be read with the preceding sentence. Her Honour there concluded that the verdict was not unreasonable, and then at paragraph [50] of the judgment, which is one sentence long, contains an evaluation of one aspect of the evidence, namely, the then adult complainant’s “cordial, even close, relationship with her father”, the appellant.

But beyond the sentence in [49] and paragraph [50], the contention is that there was no assessment of the sufficiency or of the quality of the evidence or of the capacity of the evidence relevant to count 3 to support the verdict. So, put simply, the correct test was stated at paragraph [25] but never applied to arrive at the conclusions at [49] and [50].

Now, the point is not, of course, made good by this but nevertheless I say that what her Honour Justice Atkinson did there could be contrasted with the manner in which the President approached the matter, but I can come back to that shortly.

This Court in BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387 at paragraph [31] said that the principles applicable to determining whether a verdict was reasonable were “well-established”, and neither party here wishes to ask the Court to reconsider any of those principles. The Court said in BCM at [31] that the principles were “collected in SKA” at paragraphs [11] to [14] and the Court said in BCM at [31]:

Prominent in the majority’s discussion in SKA . . . is the requirement that the appellate court’s reasons disclose its assessment of the capacity of the evidence to support the verdict.

NETTLE J: Mr Copley, what about paragraph [44]? That refers to the superior quality of the evidence adduced in support of count 3 to the inconsistencies and how they could be resolved on the grounds of them being minor and also to the jury being entitled to exclude the possibility of reconstruction?

MR COPLEY: Yes, the contention, your Honour, is that that is one of a number of paragraphs that are only concerned with whether the verdict on count 3 was inconsistent with the verdicts on counts 1 and 2. I can perhaps go to that now. Your Honours will see that under the heading “Consideration” at the foot of 291 in paragraph [43], it begins with:

The complainant’s evidence was supported in important ways by her mother and sister –

That is true. Then at paragraph [44], the phrase at the beginning of the sentence is:

The conviction on count three can be accounted for by the fact that –

My submission is that that is language indicating that her Honour was there considering why the jury might have returned a verdict of guilty on three but not guilty on the other counts. The point perhaps becomes a little clearer when it is noticed that at paragraph [46] it begins with:

The difference in the strength of evidence on count three readily accounts for the difference in the verdicts. The different verdicts tend to suggest –

her Honour said, and then halfway through the paragraph:

There was a rational distinction between the strength of the evidence on each of the three counts –

All of that language is redolent of the language relevant to an inconsistent verdict because the test there is whether or not there is a proper way to reconcile an acquittal or acquittals with a conviction.

At paragraph [47], her Honour makes the observation that the evidence given by the complainant was much more detailed with regard to count 3. Simply because it is much more detailed does not say anything about the reasonableness of the verdict but it is a relevant reason to understand why verdicts might be not inconsistent if the evidence about the other counts was not detailed. Indeed, earlier in her Honour’s judgment at paragraph [35] in the last sentence on 290, her Honour said:

The complainant’s evidence of these counts –

meaning 1 and 2:

was vague and uncertain.

So, bearing in mind that conclusion, which was made on the way through, her Honour was only saying here at paragraph [47] that the verdicts are not inconsistent for, among other reasons, her evidence was much more detailed about count 3. Her Honour then proceeded to cite the well-known passage from MacKenzie v The Queen 190 CLR 348 at 368 in paragraph [47], which is again about an inconsistent verdict, and then at [48] it becomes more manifest again. Her Honour said:

The cases in which inconsistency of verdicts undermine the legitimacy of a guilty verdict are found in the following circumstances -

and again that is a quote from MacKenzie v The Queen. Then at [49] her Honour concludes:

This is not such a case.

So this is not a case of inconsistent verdicts.

BELL J: Accepting that her Honour’s focus in the paragraphs to which you have taken us was addressed to the inconsistency of verdicts ground, nonetheless, returning to paragraph [44], to the extent that her Honour referred to the question of the risk of reconstruction and suggested that it was open to the jury to consider that that was avoided because after the complainant said words to the effect, “From what I’ve been told, she was given a direction to only give an account of what she herself recalled and after that she referred to the appellant’s fingers being somewhere near her undies”, or something to that effect.

MR COPLEY: Yes.

BELL J: It was not necessary, was it, for the Court of Appeal majority to go back and repeat that when dealing with the first count?

MR COPLEY: It was not necessary for the majority to set out the evidence again. Certainly, the evidence relevant to count 3 had been set out effectively at [27] to [29] at 289. I recall that at the special leave hearing, your Honour the presiding Judge asked me did I have any particular complaint that that was not a complete – or a wholesome recitation of the evidence. On that day I said no, that I did not, as I checked the transcript this morning.

But having gone back and looked at the matter since then, the contention is that the court perhaps did not appreciate the extent of the reconstruction because of the way the evidence there was set out. This is – I hope to make plain – an effort to answer your Honour Justice Bell’s question about why is the consideration at [44] not sufficient – that is the conclusion. I say to your Honours it is an insufficient – it is not a proper consideration, it is not a proper weighing of the evidence because the recitation of the evidence at [27] to [29] leaves out an important aspect of it and if I could just ask you to note the following things about [27] to [29]?

EDELMAN J: Just before you do, do I understand then, your submission – it is not that the only reasoning really is contained within [49] and [50] and that there is some fatal error by failing in [49] and [50] to refer back to earlier discussion and to contain a sentence “given what I had said earlier, in light of that evidence it was open for the jury to convict”, but it was the fact that the earlier evidence is itself incomplete and does not contain a sufficient weighing, or balancing of the relative competing evidence.

MR COPLEY: To the second aspect of your question, yes, your Honour. In relation to the first aspect though, I should make myself plainer. I say to your Honours that everything under the heading “Consideration” prior to that sentence in [49] that begins “It also shows” was, in my submission, only a consideration of the question of inconsistency of verdict. It was not, in my submission, a consideration of reasonableness and if I betrayed some concession from that earlier, I apologise. But I say, no, there is no proper consideration of reasonableness until paragraph [49], last sentence.

EDELMAN J: None of the earlier discussion can in any way feed into [49] or [50]. They must be read as completely divorced considerations.

MR COPLEY: That is my submission. The basis of the submission really is this, that the context of paragraph [49] – when one reads what follows in [46], [47] and [48] – shows that, in my submission, very much the focus is only upon the second ground of appeal, inconsistent verdict, at that point.

NETTLE J: But your alternative is that there is a not sufficient attention to aspects of the evidence at [27] to [29], leading to an underestimation of the risk of reconstruction.

MR COPLEY: Alternative or additional point, yes.

NETTLE J: You are about to take us to what is missed out at [27]?

MR COPLEY: I will, yes. So if I can just get you to notice this about [27] and [28]. The recitation of the evidence at paragraph [27] – and you will appreciate this probably already but certainly will when we go to page 23 of the appeal book – begins with the complainant’s version of it as she was asked to remember it. So that is where it begins. Then at paragraph [29] her Honour said “Importantly, the learned prosecutor interrupted her to tell her only what she remembered”. Her recitation of that passage begins:

Well, I was asleep before and ended up finding out what happened -

But if we go to page 23 of the appeal book there is a very important sentence that has not been noted there apparently by Justice Atkinson and it appears between lines 25 and 30:

How did your underwear get down to your ankles?---Time, I didn’t know.

Probably the words “possibly at the time” or “at the” was missed by the transcriber. I will just read it:

Time, I didn’t know. All I knew was my Dad had just hopped off the bed.

That is, in my submission, a very significant pointer that all the complainant knew was that her dad had just got off her bed.

NETTLE J: But then there is line 30 as well, to which the President refers.

MR COPLEY: Yes, and that was the line that Justice Atkinson reproduced in [29] at line 30 of her judgment, but her Honour did not reproduce this question and answer before. Can I just ask you to notice as well that down the bottom on each of these pages it says “XXN”, meaning cross-examination, “MR COLLINS”. That is a mistake; it is Mr Wallis, the Crown Prosecutor who is asking all these questions. When one reads the answer:

Time, I didn’t know. All I knew was my Dad had just hopped off the bed.

with:

Well, I was asleep before and ended up finding out what happened . . .

that really does, in my submission, demonstrate a grave concern that the complainant had no proper – her own personal recollection of the incident.

GORDON J: In that context, can I ask you two questions about paragraphs [43] and [45] which deal with, at the top of page 292, what seems to be an alternative hypothesis, and [45], which seems to be a conclusion that Justice Atkinson draws that the mother put the asterisk on the calendar being the date when she caught the appellant sexually abusing their daughter. Do you make anything of those two matters in this context?

MR COPLEY: So far as [45] is concerned, to state it that she caught the appellant sexually abusing the daughter is to overstate the position. The mother might have believed that she had found that but she did not see it. She could not see under the blanket. Indeed, what she saw was far less sinister than what the daughter or the sister claimed they saw which was underwear around the ankles. She just saw knickers or panties folded down an inch or so. But it represents at [45] an overstatement, in my submission, of the evidence. It is more a - - -

GORDON J: The reason why I put it to you, as I understand this second and alternative and additional point, is that the evidence is incomplete. Is there also a contention that the evidence is overstated?

MR COPLEY: Yes, I do make that contention there, that her Honour has overstated what the mother’s evidence is.

GORDON J: Was the alternative hypothesis at the top of page 292 put below?

MR COPLEY: Well, it was left by the learned trial judge as a matter that the jury would have to exclude, certainly. It was left by his Honour as a proposition in the summing-up, but the father did indeed testify that he – well, first of all, he was not in the bed on an occasion when found by mother and daughter, and he said he did not get in the bed to check whether she had wet the bed.

So it was an hypothesis that his Honour had left because the complainant gave evidence that she often wet the bed until she was in high school and she from time to time would – whether she was awake or not take her knickers off and they would either end up in the bed or on the floor on the occasions when the bed was wet. But there was no evidence in this case that on this day or night the bed was wet. People were asked did they notice anything about the bed and they said, well, no.

So that probably the proper inference to draw from that, if anything, is that it was not wet but the other way is to say, well, there was no evidence one way or the other. But one would think, in the circumstances, if the bed had been wet it would have been noticed by someone there.

BELL J: Do I take it you accept President McMurdo’s analysis which is it was open to the jury to reject in its entirety the appellant’s evidence to accept that an occasion occurred when the appellant was in the bed with the complaint, a circumstance that might attract a degree of suspicion, but that at the end of the day one could not be satisfied of the commission of the act of indecent dealing beyond reasonable doubt in light of the fragility of the complainant’s evidence?

MR COPLEY: Yes, your Honour.

BELL J: In that regard, if you go back to paragraph [44] where Justice Atkinson deals with the issue of the risk of reconstruction, President McMurdo’s approach was to say that on her review of the whole of the evidence she could not eliminate that risk as a reasonable possibility. In the concluding sentence of paragraph [44], Justice Atkinson’s attention is directed to an account of how one might reconcile the verdicts on counts 1 and 2 and count 3 by reference to what it was open to the jury to conclude and is not an assessment of her Honour’s view as to the elimination of reconstruction as a reasonable possibility.

MR COPLEY: Yes, yes, I do not wish to disagree with anything that your Honour put to me just then. So far as the risk of reconstruction is concerned, and this - - -

EDELMAN J: With the passage you have taken us to on page 23 of the appeal book - that is the key passage where the complainant – or the passages where the complainant describes what she felt.

MR COPLEY: Well, I would say to you it begins on 23 at line 15, and it ends on 24 at line 19.

EDELMAN J: Yes, and then 31 where she described the recollection of the main incident being when he was caught.

MR COPLEY: That is right.

EDELMAN J: Where is it put to her that it is not an independent recollection, that it may be a reconstruction?

MR COPLEY: Well, it is not put to her like that at all by the learned defence counsel. He just put to her that there was no such incident as described, which was the way he was defending the whole case, that neither counts 1, 2 nor 3 had occurred, and you can see that at page 38, line – say, 7 to 39. So he was putting to her that the whole occasion just never occurred. He was not caught in the bed with her, let alone that he was doing anything with her.

So no, it was not put that it was a reconstruction in those terms, and it was not, I must concede reading defence counsel’s address to the jury which has been included in the appeal books, I must concede it is not put to the jury in those terms either. I cannot say that they were taken precisely to what we now have as page 23, which was numbered differently below, and this was read out to them and asked to evaluate it very carefully.

EDELMAN J: The case is run on the basis that nothing happened.

MR COPLEY: Yes.

EDELMAN J: Not that something might have happened but she has reconstructed in her mind that touching occurred or something like that.

MR COPLEY: That is the way the case was run by the defence, yes, but in the Court of Appeal and in this Court my contention is necessarily different because the jury had had the benefit of seeing/hearing the appellant and they rejected his evidence. Now, unless there was something like alibi or half a dozen other witnesses to say he was not there on these occasions, then it was open to the jury to reject his evidence, obviously otherwise why have trials.

But the position then remained, it is submitted, that there was open a reasonable doubt still, even rejecting the appellant’s evidence, about whether the count as particularised had occurred, and I say that just because the learned defence counsel did not have that alternative proposition to put to the jury does not mean that the appellant cannot of course ask the Court of Appeal to look at it that way. Tactically it might not have been the best approach for defence counsel to have had a fall-back position. His conduct of the matter was arguably effective enough in that he secured an acquittal on counts 1 and 2.

BELL J: He secured that acquittal upon a general attack as to the complainant’s admittedly unreliable memory.

MR COPLEY: Yes.

BELL J: One distinction which was the subject of some emphasis in dealing with the inconsistent verdicts was that there was support for acceptance of the complainant in relation to the third count.

MR COPLEY: Yes.

BELL J: But, as I think in the discussions concerning directions made clear, that support fell short of legal corroboration – not that I am suggesting it was required, but to make the point it supported that there had been an occasion when the father had been in the bed with the child but not the happening of the event.

MR COPLEY: Yes, your Honour, and reading the address of defence counsel below, his approach to count 3 was to emphasise the differences between the mother, the daughter and the sister about the circumstances in which he was caught. The thrust of his case seemed to be more that you cannot be satisfied there was ever even any such occasion as alleged because all three persons give very different versions about it. But, nevertheless - - -

BELL J: On the mother’s account, the complainant’s eyes were, as she put it, “scrunched up the whole time”, and the complainant did not obviously wake during the – what I will describe as the beginning phase of it when the mother took the blanket or covering off the child. Is that right?

MR COPLEY: That is right, yes. That is right. So, I probably have said sufficient about the first ground of appeal, that there was not the proper weighing or consideration of the evidence. The next issue then becomes whether or not this Court should perform that task for itself. Obviously, the Court is not obliged to and, in some cases, does not, but in this particular case the approach should be adopted the way it was in BCM – the Court should take the view - it was a very short case. The evidence was completed in two days. The evidence that we are directly concerned with runs over less than a page of transcript. In my submission, the Court should go on for itself to determine now whether this verdict was reasonable or not.

So, my submissions now are directed to that issue. The fundamental contention is that it was not open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that he had touched the girl on or near, on or near her vagina because when regard is had to the only apparently direct evidence on the point – page 23 – it can be seen that she had, in my submission, no actual recollection of being either touched on or near the vagina.

What you see at page 23 is, in my submission, a reconstruction. It is an inference perhaps that she has drawn that if my father is in my bed and my underwear is down something – something must have happened, something must have been going on here.

NETTLE J: That is what she says at line 30. She says it in terms - “I was asleep, I only woke up when I was told”.

MR COPLEY: Yes, but even if she had never been particularly told anything, even if she had never been told anything, if she woke up to find her mother remonstrating with her father and she is upset and angry and her knickers are around her ankles, then it would not be difficult for a girl of that age – who was 12 – to have drawn an inference that something untoward has gone on here and it is focused upon where my underwear should be because they are not there.

One explanation for – this is working on the basis, of course, that it was open to the jury to find that he was in the bed – one explanation for how her underwear can have been down – and the difficulty now with this for me is that, on her version, they are down around her ankles, on her mother’s version, they are only folded down an inch or so - but, either way, one explanation could be that it was due to her own actions because, your Honours, it was not uncommon for her to take her underwear off in bed.

Now, I hasten to add I know that this was in the context of wetting the bed and I would just direct you to page 60 at line 37. Again, the question and answer there is to the effect of what I have just stated but it was asked, of course, in the context of the question and answer before which was, “You were a regular bedwetter” and she said that she was.

But it is not difficult to imagine that if a child is a regular bedwetter, there might be possibly a half-conscious or a sleepy effort to remove underwear prior to the bed even being wet. But it is important, in my submission, to bear in mind that there was that difficulty with her sleeping because it does perhaps provide some explanation for why the underwear are not properly positioned. That might have been a coincidental development.

The difficulty with that proposition could be this. I say to your Honours that, on the mother’s version, she came home at 7.30 or 8 o’clock on a Friday night. Dinner had not been had; she had been out to get the dinner. It seems odd that a child of 12 would be asleep in her bed by then - there is no evidence that she was sick – and it would seem odd, of course, that she would be in a position where she might be going to wet the bed so early in the evening, but of course the complainant’s version was that she was asleep and that her sister was asleep in the other bed in the bedroom and her sister’s version is no, she had gone with the mother to get the takeaway food.

So there are all these, as it were, inconsistencies that do impact upon everything when one considers the evidence as a whole and when I make certain propositions to your Honours about, well, there could be a reason she might have taken the knickers down innocently, the force of that is detracted from if one does think, it is only 7.30 to eight in the night. One would not think she would be inclined to wet the bed that early in the evening. Nevertheless, that was the mother’s evidence about the timing.

What your Honours do know, and this is the more important submission – I suppose the three important submissions are these: that the evidence discloses at 23 that this is a reconstruction but the next and allied submission is the one concerning her memory. She accepted that she did not have, generally speaking, a reliable memory and I direct you to page 31, line 17, where that proposition was put and accepted.

Lest it be thought that she was a young woman who was just agreeing with defence counsel for whatever reason, I direct you to page 56 of the appeal book where, between lines 1 and 3, defence counsel said:

the simple reality of the matter is – and we’ve already established that you have an unreliable memory – this is a problem you’ve had most of your life, isn’t it?---Yes.

Again, guarding against the possibility that it might be thought that she was a particularly compliant witness, I would ask you to note page 92 in the mother’s evidence, between lines 23 and 29 – I hasten to add that all of these references are in my written submission, so they will be found, but I am just emphasising some – her mother was asked, in the context of her general - - -

GORDON J: What line is this?

MR COPLEY: Page 92 about lines 23 to 26 - that she had difficulty sustaining attention, concentration and working memory, according to a report, and her mother said “she hasn’t got a long-term memory”. It is “not good”. That is a really important point, in my submission, to bear in mind when considering reconstruction, that is to say, a self-confessed difficulty with memory and a difficulty noted by her mother who was, it must be said, otherwise a very supportive witness for her daughter.

Lastly, I would ask your Honours to take the view that there was a concrete manifestation of the difficulty with her memory in this very case. If your Honours were to look at page 27 of the appeal book between lines 30 and 36 - this is again in evidence-in-chief - Mr Wallis, the prosecutor, said:

you said you couldn’t sit on a couch because it wasn’t a normal father-daughter relationship?

She reiterated:

I couldn’t sit on his chair with him.

Why? She said – at line 34:

I don’t know how it would end up starting, but it would end up – it was just a very unappropriate -

That word is used again by her so she must have used the word “unappropriate”, not “inappropriate”, but we know what she means. He said:

I want you to tell us what happened. Were there times on the couch that you can recall?---I don’t remember.

So she remembers something inappropriate happening on the couch. That is her evidence-in-chief – not particular enough to form the subject of account but nevertheless admissible, one might say, as other discreditable conduct, evidence that might show on some level a sexual passion by the father for his daughter.

But we see at page 38 of the appeal book between lines 1 and 28 that the complainant agrees with these propositions that in neither of the two statements she had given to the Queensland Police – this is lines 1 to 3 – had she made any allegation about anything inappropriate occurring in the chair. At lines 19 to 20 it is put to her that she gave full evidence and was cross-examined concerning this matter - and it cannot be the chair; he must mean what the trial is about:

on the 19th of March 2015, you made no reference to anything happening in a lounge chair, either, did you?---No.

So she then accepted, really, that it was the first time she had mentioned it:

So this is the first time that’s popped out; is that right?---It was an accident.

Then at page 39, lines 10 to 17 she agreed that that was an example of her unreliable long-term memory.

BELL J: Just before you move from her account to the police at the time of her complaint, there is some suggestion, I think, that the terms of her original complaint –or perhaps it was her evidence at the first trial – was of penetration of the vagina on the occasion charged in the third count. Where do we get that evidence?

MR COPLEY: That emerged in cross-examination, and it emerged coincidentally, perhaps. If you could look at page 35 of the appeal book, at lines 14 to 16, that is where it emerged from, and it was not a matter that the defence counsel ever revisited with her, about digital penetration.

BELL J: So, I mean, that was a more broadly stated allegation, that does not suggest that she was necessarily ever giving an inconsistent account in relation to the third – the events charged in count 3.

MR COPLEY: No, it does not, no.

BELL J: Yes, I understand.

MR COPLEY: But I wanted to go to just look at the way the matter had been particularised at the commencement of the trial, and at page 17 a document marked MFIA for identification was recorded which contained the particulars, and then that is reproduced at 269 of the record book. So these were the particulars before amendment - - -

BELL J: Yes.

MR COPLEY: - - - and it was that he touched her on the vagina, not in it. So the Crown case must have been only that there was a touching on based upon some proof of evidence or something that they had from the child and any allegation of digital penetration was something that was unparticularised or not sufficiently particularised enough to give rise to a count.

BELL J: I raise the matter with you because at paragraph [6] of President McMurdo’s reasons on page 285, her Honour appears to be under the misapprehension that there had been an earlier inconsistent account of count 3.

MR COPLEY: Yes, she does seem to take that view and that does not seem to be correct. Your Honours, moving then from the three principal reasons why the Court should find that the verdict was unreasonable, I just want to add these subsidiary submissions now. The mother’s evidence shows that the mother was agitated about her husband’s presence in the daughter’s bed and to her the discovery of him being there was significant.

If she is to be accepted as truthful, she yelled at him and she put the asterisks in the calendar the next morning. Then later that year she said she even told someone about what she had seen even though she knew, she said, that no one would believe what she was asserting. The point of all of that is this, that given those reactions by the mother, it is submitted that it is inherently unlikely that the mother – it is inherently likely rather that the mother would have either discussed in terms with the child what she had seen or – and I do not have a basis really in the evidence for that submission – or that the child would have discerned perhaps from things the mother had said or how the mother was behaving that there was a problem about her father’s presence in the bed.

BELL J: The difficulty with that is this matter was not explored with the mother or the complainant.

MR COPLEY: No. All I can, I suppose, really point to is that in the mother’s evidence there were two occasions where she said something that was quite suggestive of her having conveyed something to the sister and to her sons, and she was stopped – probably correctly – from giving that evidence. I will just see if I have a note of that. Yes, it is at page 76 of the appeal book at line 20 – 19 to 20. The sister said that after the complainant ran from the room:

mum kept asking dad what he’s doing and then she told me and my two brothers -

She was stopped from saying that. Then they wanted to know whether the conversation was one that was in the appellant’s presence with the mother – at line 32. The sister said:

My mum told me and my brothers –

and she stopped again. An inference open is that the mother has related to other children what she has seen. Then, I say, it is not inherently implausible that the other siblings could not have said something to the complainant, hence, reinforcing in the complainant’s mind that something untoward had happened when she was asleep.

The other three points can be summarised very briefly. There was a very, very substantial delay in this matter, as your Honours know, in the order of over a decade. The complainant was easily led and believed what her parents said. I draw your attention to page 57 of the appeal book for that proposition. It appears in the first two sentences. When she was at College – it is evidence from the Bar table. So, it may be that she is only agreeing she was easily led in high school.

GAGELER J: Sorry, which page?

MR COPLEY: Page 57.

BELL J: I think the mother agreed with the proposition that she was an easily-led child.

MR COPLEY: She did. At page 92, line 42. The mother said at page 93, line 4, that on a previous occasion the mother had acknowledged she had said that the complainant would believe:

what anyone told her –

So they are an unusual combination of circumstances in this case where it is said that all of those things have a really relevant and direct bearing upon whether the danger of reconstruction here was sufficiently eliminated by the instruction from the prosecutor or the request from the prosecutor just to “tell us what you remember”.

Although I have not, in terms, take your Honours to this, when one looks at what she says she remembers it is extraordinarily vague. She feels hands down near where her underwear was supposed to be but she does not know what the hands were doing. Then she says his fingers were near my vagina and I do not remember what was happening.

That could be interpreted by some as implying that the fingers were touching because how would she know if they were or were not near her vagina unless they were touching – that it was more a conclusion drawn from what she felt. But, in my submission, that is not a safe basis for a conviction because if, indeed, the father was in the bed with her and if, indeed, her knickers were down at all, or even if they were not down, if his hand touched as they lay side by side, just the side of her upper leg here, that could have been an entirely innocent or unremarkable touching. So, unless there are any other matters, they are my submissions.

BELL J: Thank you, Mr Copley. Mr Byrne.

MR BYRNE: Your Honours, it is clear that there are overlapping considerations in the two grounds before this Court. I will try not to repeat but I do want to approach the grounds individually, if I may. The submission from my learned friend is accepted to the effect that neither party is asking this Court to interfere with any of the principles of the cases from this Court – MFA v The Queen, SKA v The Queen, BCM v The Queen.

The approach by Justice Atkinson, with whom Justice Morrison agreed, was to largely blend or overlap the considerations for the two grounds of appeal before that court. It is our submission that that was an appropriate approach in the particular circumstances. Those two grounds of appeal are not mutually exclusive in the factors which are required for consideration. Each requires the appellate court to undertake a detailed assessment of the evidence.

On the one hand, when considering the inconsistent verdicts ground, which is really a genre of the species of an unsafe and unsatisfactory allegation, to use the rubric of the standard appeal form in the legislation, the court must scrutinise the evidence to see if the differing verdicts are in fact reconcilable as a matter of logic.

In our written material, we have taken the Court to MacKenzie v The Queen. I do not need to take your Honours to that particular case. It is perhaps sufficient to note that two of the well-known passages are found at appeal book 292 through to 293 at paragraphs 47 and 48 of Justice Atkinson’s judgment. I shall not repeat them.

In those circumstances, on the one hand, the Queensland Court of Appeal was considering inconsistent verdicts as a ground of appeal and, on the other hand, was required, according to the cases that I have just mentioned in my oral submissions, to undertake its own independent assessment of the whole of the evidence. There is very much an overlap in that approach.

It is, as I have submitted, the case that Justice Atkinson has conducted that in a blended manner – “concurrently” may be another way of describing it – but we do not accept the appellant’s assessment as to how the judgment is attributed to different grounds because we, quite frankly, submit that it is impossible in that blended way to do so.

Could I take the Court - start under the heading at appeal book 291 at paragraph [43]. We have, your Honours will appreciate, no doubt, in our written material submitted that there was already a qualitative assessment of the evidence at paragraph [29] where her Honour prefaced the paragraph with the word “Importantly” – that is when the instruction was given by the prosecutor to the witness to relate only that which she remembered – and at [35], the last sentence, her Honour concluded that:

The complainant’s evidence on –

the first and second counts:

was vague and uncertain.

But turning to the consideration of count 3:

The complainant’s evidence –

her Honour wrote:

was supported in important ways –

Now, I pause there. That is clearly a reference to count 3. It is our submission that [43], [44], [45] clearly deal with count 3, that at least the first sentences of [46] and [47], and I have turned to appeal book 292, deal with count 3 and onto the next page of the appeal book [49] and [50] deal with count 3.

Now, that does not mean that they deal with count 3 to the exclusion of the consideration of the inconsistent verdicts, but it is a qualitative assessment, in our respectful submission. I will not traverse the ground too much that had been covered in discussion with my learned friend concerning the importance of paragraph [49] and then [44], but it is inherent in the submission that I have just made, or implicit I should say perhaps from the submission that I have just made, that we do rely upon [44] very much as a qualitative assessment, an assessment and weighing of the evidence.

BELL J: Can I take this up with you about paragraph [44]?

MR BYRNE: Yes, your Honour.

BELL J: It is the matter that I raised with Mr Copley. Clearly, her Honour’s attention was directed in paragraph [44] to the question of inconsistent verdicts. I am not putting to one side your point as to substantial overlap, but that was the focus since her concludes the paragraph saying:

The jury were entitled to accept that the risk of reconstruction was avoided by the –

prosecutor’s advice to the complainant. What her Honour does not do there – and it might be said does not do anywhere – is address how upon the appellate court’s independent assessment of the capacity of the evidence to support the verdict her Honour excluded that as a reasonable possibility? Really the high point is at page 23, line about 43. After the complainant has twice made statements suggestive of not having been awake at the time, she then says:

His fingers were near my vagina, and I don’t remember what was happening.

That is the high point of the Crown case.

MR BYRNE: I am sorry; I was just making sure your Honour had finished.

BELL J: The matter I am raising with you, Mr Byrne, is a simple point. As a matter of law, that line makes good the proposition that there was some evidence to support count 3. The task that the court had in relation to the first ground of appeal was a factual one. Where does one find any analysis of the assessment undertaken by the court?

MR BYRNE: I understand the question your Honour asked. I apologise, I thought you were going to go on to say something more before.

BELL J: Not a bit, Mr Byrne.

MR BYRNE: Our submission is this, that it is in [49] primarily. The second and third sentences in paragraph [49] deal firstly with a:

different quality of the evidence for count three –

that is, as against counts 1 and 2 – independently of the evidence of support:

given by the evidence of two other witnesses -

The use of the word “and” indicates a separation of the considerations, in our submission, by her Honour there. One then, we submit, looks at the third sentence and it shows and as has been submitted by my learned friend, if I understood the oral submission correctly, it shows or it also shows, but the “it” is the quality of the evidence or perhaps the different quality of the evidence. But that different quality of the evidence relates to at least the account of the complainant. It may be open to interpretation that “it”, in the third sentence, is the overall issue of the evidence. We accept that, but it at the very least talks about the quality of the evidence of the complainant.

Can I at this stage start to confuse the two grounds? Your Honour has taken me to appeal book 23, and I will come back to this when I am dealing with ground 2 more fully, but can I make this submission given that it has been raised now? We accept, of course, what is plain on the face of the appeal book that the complainant at line 30 says:

Well, I was asleep before and ended up finding out what happened -

and she is then stopped. We place emphasis on the word “before”. I was asleep “before” and then rhetorically, if I may be permitted to make the submission in this way, “before” what? “Before”, we say, she woke up, which is when at line 35, she could:

feel hands down near where my underwear were - were supposed to be.

Then, at line 42, after being asked whether she could say in particular where the hands were:

His fingers were near my vagina, and I don’t remember what was happening.

Now, we recognise the last part of that sentence as a statement that she does not remember what was happening with the fingers but it is our submission that that is a clear passage reflecting her recollection of the sensation of touch. It is our submission that the evidence should be understood that she had been asleep - and I am paraphrasing - she had been asleep, she woke, could feel hands down near where her underwear was supposed to be and in a more focused answer, she could feel his fingers near her vagina but she does not recall what otherwise was happening. Now, I have paraphrased but that is the essence that, we submit, that passage should be understood as.

We have, in our written material at paragraph 15 - and I do not intend to repeat it, I simply refer to it - gone into more detail as to qualitative assessment that has been undertaken by her Honour. But, if I may, with respect, observe that the discussions that have occurred today have appropriately focused on paragraphs [44] and [49], in particular, as getting to the nub of the issue and I have made submissions on those topics.

We of course have also made written submissions dealing with what is required in terms of sufficiency of reasons. Again, I shall not repeat those. Our essential submission is that in the circumstances of the grounds which confronted the Court of Appeal the concurrent or blended consideration of the two grounds was appropriate and that it necessarily means that Justice Atkinson, with whom of course Justice Morrison agreed, had considered matters of sufficiency and weight of the evidence.

If it is convenient, I would turn to ground 2, if I may. Again, it is clear, not only from the written material but from oral submissions today, that the nub of the issue here is not whether it was open to the jury - and for the purposes of this Court, reassessing the evidence – to find that the appellant was found in bed with his daughter at a time when her underwear was, shall I say, disorganised. It was, on the account of two of the witnesses, at her ankles; that is, the complainant and the sister. On the account of their mother, it had been folded down about an inch. There was also some discussion about the state of the singlet.

We simply say this, that regardless of what, if anything, had happened with the singlet, it was open to the jury to accept, and it is open on an assessment by this Court, it would be found, we submit, that it was open to the jury to accept that the underwear was around her ankles or at the very least disorganised. I should, for the purposes of that, make a clarifying submission. There is no issue that the complainant suggested that the underwear was around her ankles. At page 76 of the appeal book the evidence of the sister, about lines 17 and 18 was that she:

saw my sister get up from the bed which she had her undies right down –

In cross-examination that was clarified at page 80 of the appeal book, at lines 1 and 2:

I just remember being pulled up and she was wearing underwear that were down to her ankles.

BELL J: On the sister’s account the complainant got up and ran out of the room crying.

MR BYRNE: Yes.

BELL J: That was inconsistent with anything the mother saw or the complainant asserted.

MR BYRNE: Yes. We observe but recognise there are limitations in the submission, that it is a matter of passage of time and there may be differences of recollection. We make the observation and ask the Court to consider that factor. I have already in the course of confusing two separate grounds made submissions as to the effect of appeal book 23 and the relevant passage. I supplement those submissions by making this observation and this is not, as I understand it, in issue subject to the last oral submission made by my learned friend that if there was, in fact, a touching that occurred in the circumstances that is sufficient for proof of indecency.

My learned friend has submitted that there is a possibility of an innocent touching, as it were. We had already in a slightly different context in the written material observed that the account of the appellant was that this did not happen, never in the bed, just did not happen. Whilst it was open to the jury, as her Honour Justice McMurdo, in effect, found to discount anything said by him, this is the very issue that was considered by this Court recently in Baden-Clay at paragraph 57, that even if the account of the appellant is to be discarded, it does not mean it does not have any relevance in terms of an assessment of an innocent hypothesis. So we - - -

BELL J: We are not so much in the area of that analysis, are we? It is a question of the sufficiency of the complainant’s evidence to establish the commission of the offence. She gave direct evidence, queried the sufficiency of the evidence that she gave to establish that which was asserted.

MR BYRNE: I accept that. I am really responding to the last submission that was made, that is all.

BELL J: Yes, I understand.

MR BYRNE: Now, as the nub of the issue before this Court and certainly the Court of Appeal was whether it was open to accept that the complainant was accurately recounting or whether there was a reconstruction, be it by suggestion or by inference but whether it was an accurate recount, I do ask that the Court give consideration to some passages which are footnoted from our paragraph 22 in the written material and I will take the Court, if I may be permitted, to them individually here.

Our submission is quite simply that there are a number of passages that shows that even if there had been a discussion by the mother with the children, and I pause there to put our position that the evidence does not establish it. We submit that is speculative. But even if there had been, the complainant was instructed and there can be some faith put in the fact that she followed the instruction to only relate that which she recalled. Could I take the Court, if I may, to page 31? This is in cross-examination. She was cross-examined from line 32 about prior evidence given the year before in March of 2015. It was quoted to her at about line 39. Question at line 44:

Well, that was your – that was the evidence you gave?---But at the moment, I don’t recall.

Page 33 of the appeal book, this is cross-examination dealing specifically with count 1 at line 23:

And you’ve got no greater memory than that. Was this the only time that you were ever underneath the table?---What I remember, yes.

Similarly, at line 47 on the same page or starting at 45, she was asked whether – and I paraphrase – would concede a possibility of other occasions under the table – answer:

there might have been, but I just don’t remember.

I do not wish to labour the point. I will not take the Court through every reference that we have made at footnote 21, but I should in fairness go to the next page – page 34. So it continued:

I just remember what I remember.

Then she clarified that by:

I just remember what goes through my head every single day.

Insofar as that detracts from our submission which we submitted does not to a great deal but we bring it to the Court’s attention. There are other passages in the footnote; I will not labour the point in oral submissions. We simply say that there is a good indication that the complainant was diligent in testifying as to what she remembered which gives faith to the proposition that she followed the instruction.

It also counters against a proposition that she is necessarily always easily led – at least by the time of trial. For the purposes of the assessment this Court must undertake, we point in very general and quickly to the support, as it has been described by your Honour Justice Bell, of the fact of the finding of the father in the bed.

Can I come back to something that your Honour Justice Bell raised with my learned friend and it is concerned with the passage at paragraph 6 in Justice McMurdo’s judgment? The concession has been, in my respectful submission, appropriately made but insofar as her Honour seems to have confused a generalised allegation with the specifics in count 3, that concession is correct.

Now, I make these submissions well aware that of course, to use the vernacular, chipping away at the minority judgment does not assure of success by the respondent on the appeal, but I do wish to expand on that which has been touched upon, if I may.

It is our submission that her Honour did, with respect, misapprehend this aspect of the evidence. We note that, from paragraph [6] her Honour seems to have thought that the initial allegation was digital penetration. The particulars, which the Court has already been taken to at page 269, clearly referred to at that time touching the complainant on the vagina, not of digital penetration. They were of course later amended. And the opening, at page 16 of the appeal book, at line 6, refers to a “touching of her vaginal area” – and I am quoting those words.

Now, there is further support for the proposition that the complaint of digital penetration was, to adopt the phraseology if I heard it correctly from Justice Bell, a more broadly stated allegation. Could I ask the Court to go to page 21? At line 26 or 25 – and this is by way of introduction to the point, after having earlier used the phrase “What he had been doing” she explained that that was when:

he had started touching me when I was a young age –

and it continued. Then, at line 45 on the same page, there is a question designed to be more specific as to what he did start doing:

unappropriate – things, but at the time I thought it was normal.

Over the page:

He would touch me and under my clothes.

Whereabouts?---On my boobs and down in my vagina.

The questioning in evidence-in-chief and, again, this is a passage where the transcript incorrectly relates the questioner’s name at the bottom, then continues specifically to count 1 from page 22, line 10 and moves on to count 3 at page 23, which the Court is well familiar with, and count 2 on page 27, at line 44. So it is our submission it is clear from that that it was a general allegation. That is consistent with the passage of cross-examination that my learned friend took the Court to at page 35 where it is incidentally brought out in cross-examination. And, as has been noted by my learned friend, the cross-examiner did not return to the topic to suggest inconsistency.

Finally, it was left for the jury’s consideration as uncharged acts or the phrase used of “discreditable conduct”, at application book 206, lines 39 to 44, and page 207, line 18, to page 208, line16.

Having said that, and given that my learned friend at one point suggested today that there can be a contrast between the approach of Justice McMurdo and that of the majority and again, bearing in mind the caveat that we recognise chipping away at the minority judgment gets us only so far, we do nonetheless say that this error carried through into paragraph [17] of Justice McMurdo’s judgment which is one of the pivotal paragraphs in the dissenting minority judgment.

Her Honour, with respect, accurately at the first and second sentences noted the issue. We do not cavil with the proposition that “Particular caution was needed” in the circumstances. We will return to the propositions very shortly as to the fact of the mother commencing a property and maintenance claim and that the complainant was prone to suggestion – I am sorry, I have already dealt with that – prone to suggestion. That certainly comes from the evidence of the mother. The only supplementary aspect of that was at page 92 of the appeal book. The mother accepted she was easily led. The next question in cross-examination was:

And she would believe what anyone told her?---Not really, no.

But it then moves to the crucial passage for the purposes of this submission. Whilst accepting, as we do, the observation by her Honour that the complainant had what was said to be a poor unreliable long-term memory, her Honour then repeats the complaint about digital penetration, and then contrasts in the next sentence with the word “but”:

But her evidence at trial –

suggesting that her Honour considered there was a direct inconsistency which, we submit, on a reading of that paragraph became one of the – not the only but one of the very material considerations, because after repeating her evidence at trial:

This evidence in combination raised real uncertainty as to what, if anything, happened with the appellant’s fingers.

If the issue of the reasonableness or the safety and satisfactoriness of the verdict is to be considered through the prism of Justice McMurdo’s judgment, we do point out those issues which we say are in error. Now, finally I think, the issue of the property and maintenance claim which was raised by her Honour Justice McMurdo requires, we respectfully submit, some observations.

In doing so, I will be expanding upon what is contained in paragraph 30 of our written submissions. Could I take the Court to page 137 of the record book? This is the evidence-in-chief of the appellant. I recognise that I have already made the submission that it was open to the jury to dismiss anything said by the appellant but nonetheless this was uncontested evidence. At line 34 he was asked if he:

when you recall if you first received any communications from lawyers . . . about . . . spousal maintenance?

and he indicated at line 36 –

It was in about the third week of November 2013.

That then, in our submission, sits in contrast to the cross-examination of the complainant at page 35, where she was cross-examined on that statement, and that is where the issue of digital penetration incidentally came out. It was established from lines 6 through to 14 that the first occasion she went to a police station was 2 November 2013. It was initially said “2003”, but that was clearly a slip of the tongue and counsel was corrected, which he accepted.

So that is at least a couple - a few weeks prior to being told of spousal maintenance. There was evidence to support the date by the appellant at page 97, coming from the mother, where she was taken to an affidavit she had prepared for the purposes of the spousal maintenance. The whole passage started at page 96, line 40, but in particular the date of the affidavit is shown at page 97, line 22, to be:

21st of the 11th 2013.

The chronology, clearly enough, is that the complainant went to police in early November and that there was no notification of any spousal maintenance until around 21 November, thereabouts.

NETTLE J: That was after he was arrested, was it?

MR BYRNE: Yes. There is no clear date of the arrest, I should say, but it appears in the context – and I will have to get the page reference – that there was evidence from the mother that she was paid $1,300 - - -

NETTLE J: Which stopped when he got arrested.

MR BYRNE: Yes, exactly.

NETTLE J: That is when she made her application.

MR BYRNE: She made the application for the spousal maintenance, but I do reiterate that there is no evidence of an actual arrest date per se, but it seems clear enough from that time line that that is what happened.

BELL J: Up to the arrest I think the evidence was he had been a hardworking individual and presumably providing support.

MR BYRNE: Yes.

BELL J: So the spousal maintenance followed, as night day, when he ceased working consequent upon the arrest, which I think was his evidence.

MR BYRNE: Yes, and hence when the informal maintenance – if I can put it that way - ceased.

BELL J: Yes.

MR BYRNE: We do also note that there was no suggestion in any of the cross-examination of any link between the property claim and the complaint at least.

BELL J: Yes.

MR BYRNE: Your Honours, we submit – I am being handed the passage, I think – the evidence of the mother at page 137 – I beg your pardon, the appellant’s evidence at 137 he said that he was charged by police and placed on bail on 4 November – I apologise: I misled Justice Nettle. I had not picked that.

BELL J: Mr Byrne, the situation is I think he was sentenced to a term of imprisonment for 12 months with 5 months before eligibility for parole, is that – or suspension?

MR BYRNE: Suspension, I think it was. He has served the five months.

BELL J: Yes, very well.

MR BYRNE: Just finally, we make this observation and it perhaps has been assumed throughout the whole of the proceedings but for the sake of clarity, should the respondent not succeed on ground 1 it is our submission that the Court would, given that ground 2 has been brought up through the special leave process, be considered by the Court. So that should it be that the respondent does not succeed on ground 1, we are again, to use a vernacular phrase, still floating in the water dependent upon the determination of this Court on count 2 according to the usual principles. May I assist any further?

BELL J: Thank you, Mr Byrne. Anything in reply, Mr Copley?

MR COPLEY: Only one matter, your Honours. My learned friend’s construction of page 23, line 30 about “Well, I was asleep before”, his construction, in my respectful submission to him, does not accommodate the answer that went before which was that she did not know and that all she knew was that her dad hopped off the bed and if she woke up then she had missed whatever had occurred in the bed.

BELL J: Thank you, Mr Copley. The Court will reserve its decision in this matter. Adjourn the Court to 10.15 am on Tuesday, 9 May.

AT 11.17 AM THE MATTER WAS ADJOURNED