SUPREME COURT OF QUEENSLAND

CITATION:	R v Collette [2022] QCA 163	
PARTIES:	R
v
COLLETTE, Richard Douglas
(appellant)	
FILE NO/S:	CA No 229 of 2021
DC No 673 of 2020	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 16 September 2021 (Lynch QC DCJ) 	
DELIVERED ON:	2 September 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	10 June 2022	
JUDGES:	McMurdo and Bond JJA and Flanagan J	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of one count of maintaining a sexual relationship with a child and four counts of indecent treatment of a child under 16 – where the counts were particularised as occurring across four calendar years – where the trial judge gave a direction as to the time of the alleged offending – where the complainant gave evidence that one of the counts occurred in the presence of her mother – where her mother denied seeing any offending – where there was evidence that her mother was an alcoholic – where there was evidence of the physical proximity of her mother to the complainant and appellant at the time of the count – whether there were fundamental contradictions in the complainant’s evidence – whether the jury was entitled to reject evidence that one of the charges had not occurred in front of the complainant’s mother – whether the verdict was unreasonable or insupportable
Criminal Code (Qld), s 668E(1)
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, followed	
COUNSEL:	S R Lewis for the appellant
G J Cummings for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	McMURDO JA:  I agree with Flanagan J.
[2]	BOND JA:  I agree with the reasons for judgment of Flanagan J and with the order proposed by his Honour.
[3]	FLANAGAN J:  After a three day trial before Judge Lynch QC, the appellant was convicted by a jury on 16 September 2021 of one count of maintaining a sexual relationship with a child (count 1) and four counts of indecent treatment of a child under 16, under 12 (counts 2 to 5).  Each of the counts were particularised as having occurred between 31 December 2009 and 1 January 2013.  The complainant was born in November 2001 and was aged between eight to 11 years for the particularised period.
[4]	The appellant appeals his convictions on the ground that the verdicts of the jury were unreasonable and could not be supported by the evidence.  The appellant identifies two aspects of the evidence in submitting that the jury could not have been satisfied beyond reasonable doubt that the offending occurred.  The first aspect concerns whether the jury could have been satisfied beyond reasonable doubt that the offending occurred in the period between 31 December 2009 and 1 January 2013.  This requirement was the subject of a specific  direction by the learned trial judge.  The second aspect relates to count 5.  The particulars of count 5 are that the appellant rubbed the complainant’s vaginal area with his hand or hands under her clothing.  This conduct occurred on a one seater in the lounge room of a house at Deception Bay in circumstances where the complainant’s mother was also in the lounge room at the relevant time sitting on a two seater.  The complainant’s mother gave evidence that she did not witness the conduct constituting count 5.  The appellant submits that in light of the complainant’s mother’s evidence the jury should have entertained a reasonable doubt in relation to count 5.  This doubt should have in turn affected the jury’s assessment of the credibility and reliability of the complainant’s evidence in relation to counts 1 to 4.
[5]	The issue raised by the ground of appeal is whether this Court, as an appellate Court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld).  On the authority of M v The Queen, this involves a determination as to “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.
[6]	In Pell v The Queen the High Court observed:
“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”
The complainant’s evidence
[7]	The complainant’s evidence consisted of two statements made pursuant to s 93A of the Evidence Act 1977 (Qld) as well as her evidence at trial.
[8]	The first s 93A statement taken on 30 December 2017 was brief.  The complainant alleged that the appellant used to touch her.  She could not say in which year this occurred but when asked how old she was at the time she stated that she was “around 10”.  When asked how many times this had occurred, the complainant replied “a lot of times” and it happened for approximately one year.
[9]	In her second and lengthier s 93A statement taken on 2 January 2018, the complainant was first asked about the last time the appellant touched her.  This evidence concerns count 5 which is referred to in the particulars as “The Last Time”.  The complainant recalled that the conduct occurred in the lounge room of the Deception Bay house.  Her mother was sitting across the room and the complainant was on the appellant’s lap.  The lounge room had a single seater and a double seater across the other side, with a TV in front.  The complainant drew a diagram of the lounge room which showed the position of the one seater, the two seater and the television.  The complainant stated that the appellant would make her face him and sit on his lap.  The appellant would hold her arms “really tight” and he would wrap one arm around her and “do stuff” with the other arm.  She stated:  “And my mum would sit there and she wouldn’t do anything”.  She recalled that this occurred when she was “like ten”.  The complainant was 16 years of age at the time of the second s 93A statement being taken.  Having been born in November 2001 the complainant would have been 10 years of age between November 2011 and November 2012.
[10]	The complainant provided further detail in relation to count 5 which is accurately summarised in paragraph 12 of the appellant’s outline as follows:
“(a)	It was night time but it wasn’t too late.
(b)	The appellant and her mother were watching TV and the complainant went to sit next to her mum but the complainant called her onto his lap.
(c)	The complainant’s mother was sitting on a two seater along the wall, and the appellant was sitting on a single sofa chair.
(d)	The complainant sat on the appellant’s lap facing the TV but he turned her around and wrapped his arm around her.  The complainant’s legs were wrapped around his waist.
(e)	The appellant whispered to her not to say anything and he had his arm wrapped around her, pushed her against his chest and slipped his hand down her pants.
(f)	He groped and rubbed her on her vagina and grabbed her butt with his other hand.  He put his hand inside her pants, grabbing her and rubbing her but he never put his fingers inside her.  He used eight out of ten force.
(g)	The complainant was wearing black denim shorts, and when the appellant was groping and rubbing her vagina, her pants were ‘still on but it was not like all the way down but it was like still on me.’
(h)	The complainant’s mother was sitting about two metres away, and the complainant was looking down the hall while this was happening.
(i)	The complainant stated that after he stopped, the appellant told her to go to bed and she went to bed.
(j)	When asked how long this went on for, the complainant responded ‘Um, I have no idea.  I would say forty minutes.’”
[11]	The complainant’s estimate of 40 minutes was in response to two questions that sought to elicit the time the complainant had been sitting on the appellant’s lap and the time that she had been in the lounge room.  It is not clear from the complainant’s evidence which aspect she was referring to when she made the estimate of 40 minutes.
[12]	Later in the interview the complainant was asked whether apart from the appellant anyone else knew what happened.  The complainant responded:  “… I think my mum knows …`Cause she like sat there on the lounge and didn’t do anything”.
[13]	The complainant was asked about the circumstances of count 2 which is referred to in the particulars as “The Dolls Time”.  The complainant recalled that she was on her bed when the appellant knocked on the door and asked if she was awake.  He entered and told her to be quiet and turned out the light.  He lay next to her and put his hand down her pants and rubbed her.  When he was finished he told her not to tell anyone otherwise he would hurt her.  In response to police questioning the complainant provided further details, which are accurately summarised in paragraph 15 of the appellant’s outline:
“(a)	She was playing with dolls in her room, on her bed.
(b)	It was night time, after dinner – they would usually eat dinner around 6pm.
(c)	She was around 10 years old.
(d)	After the appellant turned off the light, he told her to lay down, and she laid on her back.  The appellant sat on her bed and told her to roll over to her side.  He laid down next to her and she was on her side facing the wall.  He told her not to say anything, not to do anything.  While the appellant was saying these things, he put his arm over her.  He then put his hand down her pants.
(e)	She was wearing pyjamas consisting of shorts, a shirt and underwear.
(f)	The appellant put his hand down her pants slowly and rubbed her vagina [and] on her clitoris, under her underwear.
(g)	The appellant told her not to say anything otherwise he would hurt her, and told her go to sleep.”
[14]	Count 3 is referred to in the particulars as “The Easter Time”.  The incident took place on the two seater in the lounge room.  The appellant was watching television.  The complainant’s mother was not present.  The complainant’s recollection is that the incident occurred after the time that the appellant had beaten her mother.  The complainant believed it was around Easter time.  According to the complainant, the appellant said to her that she had seen what he had done to her mother and that he could do the same to her.  He then wrapped his arm around her, put his hands down her pants, pulled her underwear aside and rubbed her vagina.  The complainant recalls the appellant whispering in her ear calling her “angel” and “kitten”.  The complainant believed that the rubbing went on for a long time and after the appellant had finished he said to her that if she told anyone or did anything he was going to hurt her like he hurt her mother.  The complainant then went to the bathroom and while walking back to her room the appellant slapped her on her bottom.
[15]	Count 4 is referred to in the particulars as “The Rearranged Bedroom Time”.  The complainant recalled another time which also occurred in her bedroom although the furniture had been rearranged.  She was playing with her dolls and the appellant walked in and told her to get on the bed.  The appellant pulled the complainant’s pants down to her feet.  He held the complainant’s bottom.  The complainant stated that the appellant would do the same thing he would every time and rub her while she was on her side.  The appellant kept saying that if the complainant told anyone he would hurt her or her mother.  After he had finished the appellant told the complainant to put her clothes back on.  The appellant then left.
[16]	When further questioned by police, the complainant provided further details which are accurately summarised at paragraph 20 of the appellant’s outline:
“(a)	That this happened before dinner.
(b)	That she thought her mother was in the kitchen at the time.
(c)	That the appellant rubbed her vagina, over her clitoris.
(d)	That she thought this incident occurred before the time when the appellant bashed her mother, but within the same year of it occurring.”
[17]	In relation to the maintenance count which is count 1, the complainant thought she had moved into the Deception Bay house when she was in grade three, when she would have been eight or nine years of age.  She confirmed that the things that had occurred with the appellant was always at the Deception Bay house.  She initially lived at another house in Deception Bay which was two storeys but the Deception Bay house where the touching occurred was a one storey house.  When asked whether she thought the conduct had occurred for 12 months, the complainant replied: “Um, I don’t know.  I think like it happened during that year.  It was often but like it wouldn’t happen like every day.”  When asked if there was another time she could remember, the complainant stated that she guessed there were other times but she could not remember the specific details.  She believed that the touching occurred once or twice a week.
[18]	The complainant informed police that she had told her close friends, her father and her step-mother.  The four friends she told were Friend 1, Friend 2, Friend 3 and Friend 4.  Each of these persons were school friends of the complainant.  She stated that she informed them of the incidents while at a sleepover.  Friend 1’s evidence was that the sleepover occurred in 2017 and the complainant told the four of them that she had been sexually assaulted by her mother’s ex-partner.  At the time of this conversation the complainant and her four school friends were in grade 11.  Friend 2’s recollection is that the complainant stated that she had been touched by her mother’s partner without permission.  Friend 3’s evidence was that the complainant was talking about her mother and stated that her mother’s boyfriend at the time was touching her in front of her mother and her mother did not do anything about it.  The complainant did not go into detail about what had happened.  In cross-examination Friend 3 agreed that the complainant said that her mother “would see these things and she wouldn’t do anything about it”.  Friend 4’s recollection was that the complainant told the group that her mother’s ex-boyfriend used to touch her inappropriately.  The complainant further stated that her mother knew about it and would let him do it.  Friend 4 did not recall the complainant giving any detail as to where, when or how many times the touching occurred.
[19]	In her evidence-in-chief at trial, the complainant confirmed the truth of what she had said in the two s 93A statements.  In relation to count 5, by reference to the diagram of the lounge room, the complainant confirmed that she and the appellant were seated on the one seater which was to the right of the lounge room and her mother was sitting on the two seater which was to the left of the lounge room.
[20]	In cross-examination the complainant stated that she had not spoken to her mother at all in the last few years.  She was aware that her younger brother stayed in contact with her mother.  She commenced living with her father and step-mother in 2014 and continued to live with them after 2014.  She recalled that she had previously stayed with her father for a short time after an incident of violence between the appellant and her mother.
[21]	She was cross-examined as to the circumstances in which she came to tell her step‑mother on Christmas Day 2017 about the appellant touching her.  Her younger brother had been pestering her about seeing her mother, which resulted in the complainant slapping her brother.  The complainant was upset and that night she informed her step-mother that the appellant used to touch her.
[22]	She agreed that while living at the Deception Bay house the appellant would sometimes leave for months at a time and reside at different houses.
[23]	The complainant could not recall the first time that the appellant touched her.
[24]	In relation to count 5, she agreed that the one seater she and the appellant were sitting on was approximately two metres away from her mother.  She accepted the proposition that it was obvious to her that her mother could see what was happening.  This was the only occasion when her mother was present.
[25]	The complainant agreed that when she referred to her being approximately 10 years of age at the time of the touching, she was referring to being either side of that age.  She accepted that she may have been between nine and 11 years of age when the touching occurred but believed that she was 10 years of age for the majority of the touching which happened in the course of a year.  In explaining why she considered it happened over a year, the complainant stated “It felt that long, yes”.
[26]	The complainant recalled an incident between the appellant and her mother and the police attending.  It was after this incident that she was taken into the care of Child Safety and placed with her father for a short while.  She then returned to live with her mother for a few years.  She recalled that her mother had other boyfriends during that time but ultimately in 2014 the complainant went to live with her father and step‑mother and remained there.
[27]	When the complainant returned to her mother after staying with her father for a short while, she could not be 100 per cent sure whether the appellant was at the Deception Bay house:
“When you came back to live with your mum, I’m suggesting that Richard wasn’t there?--- I am not 100 per cent sure.
Okay.  Well, do you remember him being there?--- Maybe.
Okay?--- They were on and off for a while.  I’m not too sure, sorry.”
[28]	When it was suggested to the complainant that when her mother had new boyfriends in the following years, the appellant would not have been at the house during that time, the complainant responded, “He did come and go a lot”.  She did not tell any of the teachers at school, her guidance counsellor, police or Child Safety officers what had been happening to her.  She stated that she had been told by the appellant and her mother to lie to Child Safety about drugs and anything that happened in the house.  She accepted that she had not told the police that the appellant and her mother had instructed her to lie.
[29]	The complainant was cross-examined in relation to two meetings with Child Safety officers, the first on 9 April 2010 when she was eight years of age and subsequently on 24 May 2011 when she was approximately nine and a half years of age.  The complainant had no memory of speaking to two Child Safety officers named Karen Groves and Brad Keanan on 9 April 2010.  She accepted that these two officers may have interviewed her on that date.  She did not recall telling these officers that she had witnessed the appellant throw a fan at her mother.  Nor did she recall telling these officers that she “only saw a little bit of the fight” and mostly kept in her room and went back to sleep.  The complainant may have told the officers that she was glad that the appellant was no longer around.  She accepted that she may have told the officers that if she felt unsafe she could talk to her mother, her father, her step-mother and her teachers.  She also agreed that she may have told the officers that if she saw the appellant at her mother’s residence she would tell someone.
[30]	The appellant was shown a document which was contained in an envelope and invited by defence counsel to read the paragraphs under a particular title.  The appellant, by reference to the document, accepted that it was dated 9 April 2010 and recorded as being present at the interview Karen Groves and Brad Keanan.  Having looked at the document the complainant still could not remember speaking to these officers at all.  She accepted, however, that she could have told the officers the things recorded in the document.  Although she had been told to lie to Child Safety, she talked about the appellant committing violence against her mother.
[31]	As to the meeting on 24 May 2011 the complainant accepted that she may have said to Child Safety officers that: “It’s much better now than it had been a while ago.  Particularly since Richard left.”  She also accepted that she may have said that she had not seen the appellant “for a long time”.  Defence counsel showed the appellant a document dated 24 May 2011.  The complainant did not recognise any of the names of the Child Safety officers recorded in that document.  Having read the document the complainant accepted that she told the officers that home was much better than it had been a while ago, particularly since the appellant had left and she had not seen the appellant in a long time.
[32]	Defence counsel then asked the complainant to read the bottom paragraph of the document dated 24 May 2011.  He asked the complainant whether she accepted what was said in that paragraph.  While the complainant’s response was in the affirmative, it is not at all clear from the transcript what the complainant was accepting.  Defence counsel did not seek to tender either document which had been shown to the complainant.
[33]	In the context of defence counsel having shown the complainant the document dated 24 May 2011, the following exchange occurred:
“Okay. Do you also accept now, having read that, that Richard probably wouldn’t have come back to the house by that point, if you’re saying you haven’t seen him in a long time?--- No.
You don’t accept that?--- No.
Why do you say that?--- Because he did come and go a lot.  Whether I said he didn’t, lying to Child Safety was often---
Right.  So what, are you saying that he was still coming and – and being violent towards your mother during this time?--- No.
Right?--- But he was coming and going. We lied to Child Safety, afraid that we were going to be taken away from our mother.
Okay. All right. So between – am I right that you lived with your mum until about 2014?--- Yeah.  About that time.
And I think we’ve already been through this: you agree that your mum had other boyfriends during this particular time period?--- Yes.
And you still say that Richard was coming around to the house even when your mum had these other boyfriends?--- Yes.
Right. I – I suggest to you, at this stage … that you’re wrong about that?--- I’m not wrong.
And that Richard hadn’t come to the house since that initial incident where you were taken away and put with your dad?--- I’m telling the truth. This is how I remember it.
Okay. So if you did say that Richard – you hadn’t seen Richard in a long time, you say you were lying to the child safety officers?--- I may have been.
Well, are you – are you – are you sure about these things or are you just filling the gaps in as you go?--- What do you mean?
Okay. Good. You’re saying Richard continued to come but you’re also saying you’re not sure if you were lying or not about that?--- He did come and go. Maybe in this instance he hadn’t been there for a while but he did come and go.”
[34]	The complainant did not accept as a correct proposition that the offending could not have happened because the appellant was not living with the complainant, her mother and her younger brother when the complainant was 10 years of age.  
[35]	In re-examination in relation to count 5, the complainant was asked why she thought her mother could see what was happening:  
“How was it obvious to you that she could see what was happening?‑‑‑ Because she wasn’t that far away.  I feel as though she could see, but I couldn’t see her.
Did you say you couldn’t see her?--- No.
And why was that?--- Because I was looking down the hallway.”
The complainant’s mother’s evidence
[36]	The complainant’s mother moved to the Deception Bay house in 2008.  At the time of giving her evidence she was still residing at the Deception Bay house.  Prior to that move she had been living at a different address in Deception Bay.  At the time of giving her evidence she had not had any contact with the complainant for four years.
[37]	She first met the appellant when he was living downstairs at the first Deception Bay house.  After about a year and a half they entered into a relationship which lasted for about 10 years.
[38]	The complainant’s mother described how there was domestic violence in the relationship with the appellant being violent towards her in front of the children, including the complainant.  This occurred once a week.
[39]	The complainant’s mother was an alcoholic.  When drunk, the complainant’s mother would pass out for a few hours.  This would occur a couple of times a week.
[40]	According to the complainant’s mother, the appellant ceased living with her about five years prior to the date of the trial, which would be sometime in 2016.  Throughout the time that the appellant was living with the complainant’s mother at the Deception Bay house he would come and go.  He could be away for a period of up to 12 months.
[41]	In cross-examination, the complainant’s mother accepted that she was also violent towards the appellant.  There was one occasion when she stabbed him.
[42]	She was not sure of the year but there were times when the appellant would leave for a couple of months at a time and live elsewhere.
[43]	The complainant’s mother initially agreed that the end of the relationship was at the time of a final incident of domestic violence which resulted in the appellant being arrested.  She rejected the suggestion that the relationship with the appellant finished in 2010.  The complainant’s mother spoke to Child Safety on numerous occasions.  She could not recall the appellant moving out on Valentine’s Day in 2010 in relation to domestic violence.  After she was shown the Child Safety notes of 9 April 2010 she could not remember any incident on Valentine’s Day 2010, and in any event, the appellant came back after that.  She explained that this was because it had not been 11 years since she and the appellant had separated.  Over the 10 years they were together the appellant moved out and then moved back into the Deception Bay house on a couple of occasions.  The appellant was not living at the house when the complainant’s mother had another boyfriend.  She had three other boyfriends who would stay overnight.
[44]	When specifically asked whether the appellant had returned to the Deception Bay house after February 2010, the complainant’s mother stated that he had because it had not been 11 years since the appellant had moved out of the house.
[45]	She could remember speaking to the police about a houseboat in 2014.  She could not remember what she said to them.  She accepted that it was recorded in a police document that on 5 April 2014 she had not been in a relationship with the appellant for four years but could not remember what she said to police.  Even so, she did not break up with the appellant in 2010 because they were seeing each other after 2010.
[46]	The complainant’s mother was cross-examined in relation to the allegations concerning count 5.  She confirmed that the one seater and two seater were not far apart.  She stated that she had never seen the appellant molesting the complainant.  When it was suggested that she sat by and watched the appellant molest the complainant on one of the lounges she responded that it did not happen and she never saw that.
The step-mother’s evidence
[47]	The complainant’s step-mother recalled that on the night of Christmas Day 2017 the complainant told her that the appellant touched her inappropriately and that this had taken place in the lounge room of the Deception Bay house.  The complainant’s step‑mother asked the complainant whether when the appellant was touching her he inserted anything into her vagina.  The complainant’s response was “No, he was rubbing me”.  The complainant told her step-mother that she would have to sit on the appellant’s lap.  After this conversation a police complaint was made five days later on 30 December 2017.
[48]	The complainant’s step-mother believed that when the children, including the complainant, came to stay in 2010 that it was for approximately 24 or 48 hours.  She was not sure whether the complainant stayed with her in 2010 for some months.  The complainant and her younger brother did, however, commence to reside with her and their father on a permanent basis in 2014.  The complainant’s step-mother recalled that, prior to coming to live with her in 2014, the complainant at one time lived with her older sister.
Further evidence regarding where the appellant was living
[49]	The prosecution made Senior Constable Hamlin available for cross-examination.  She was asked whether she had obtained any leases or housing records to ascertain where the appellant was living at relevant times.  When Senior Constable Hamlin sought to refer to DV records and the police QPRIME system she was cut off by defence counsel.  Her cross‑examination was left on the basis that she had not obtained any “housing records” showing where the appellant was resident at relevant times.
The appellant’s record of interview
[50]	While the appellant did not give or call evidence, the prosecution played a recorded telephone call between Senior Constable Hamlin and the appellant conducted on 5 July 2019.  The appellant thought that he had been going out with the complainant’s mother on and off for four or five years.  When he first met the complainant’s mother the appellant thought the complainant would have been around two to three years of age.  Initially he lived downstairs at the first Deception Bay house but after around 12 months entered into a relationship with the complainant’s mother.  After about a year and a half they moved to the Deception Bay house.  He believed that the complainant was approximately six years of age when they moved.
[51]	The reason for the relationship coming to an end was domestic violence.  He thought that the complainant would have been roughly eight years of age when the relationship with her mother ceased.  Senior Constable Hamlin then questioned the appellant about incidences that occurred at the Deception Bay address for approximately one year when the complainant was about 10 years of age.  When the details of count 5 were put to him the appellant responded “that’s a load of rubbish” and “not a hope in hell”.  While the appellant accepted that the complainant may have sat on his lap, he stated that no inappropriate touching ever took place.  The thought of such inappropriate touching disgusted the appellant.
[52]	When the allegations in relation to count 2 were put to him, the appellant responded “not a hope in hell” and “never, never”.
[53]	While the appellant accepted that the complainant may have sat on the lounge with him and her mother while watching television, he denied any touching.  He also denied ever calling the complainant “angel” or “kitten”.  The appellant made similar denials in relation to the allegations concerning the other counts.  He did not even know whether the complainant was 10 years of age when he was last at the Deception Bay house.  He agreed that he looked after the complainant often as her mother “was hardly ever there”.
Formal admission
[54]	A formal admission was made at the trial that the last entry in police records relating to domestic violence between the appellant and the complainant’s mother at the Deception Bay house was on 13 February 2010.  As at that date, the complainant was eight years of age.
The learned trial judge’s direction in respect to time
[55]	The learned trial judge gave the following direction:
“Now, I need to say something further about this issue concerning the time of the alleged offences, and this applies to all five counts on the indictment.  As you will appreciate, the Prosecution alleges the conduct which is the basis of all of the charges occurred in the period between the 31st of December 2009 and the 1st of January 2013.  [The complainant was born in] November 2001.  At the start of the charged period, she was aged eight years. At the end of that period, she was aged 11 years. You will recall her evidence was consistent in that she claimed the offending all occurred over a period of about one year when she was aged around 10.  She turned 10 on the 19th of November 2011. The evidence also shows that the last police record of a domestic violence incident involving the defendant and [the complainant’s mother] was on the 13th of December 2010.  There is evidence from [the complainant] that she told child safety officers in April 2010 that she was glad the defendant was no longer around and in May 2011, that it was better since the defendant left and that she had not seen him for a long time.
The defendant said to police he was not sure he was even living at the [Deception Bay house] by the time [the complainant] turned 10.  If he did not return to the residence after the 13th of February 2010, it follows that he could not have been sexually abusing [the complainant] for about a year when she was aged about 10.  The time period charged for each offence is an essential part of the Prosecution case.  To convict the defendant of any offence, you must be satisfied beyond reasonable doubt the activity alleged occurred and that it occurred during the time period alleged for the charge.  If you concluded the activity occurred but that it must have been at some earlier time than the period charged, you could not find the charge proved.  You must be satisfied beyond reasonable doubt the activity which is the basis of each of the charges, if it occurred at all, happened during the time period alleged.  Unless you are satisfied of that beyond reasonable doubt, you must find the defendant not guilty.”
[56]	His Honour’s direction was given in circumstances where just prior to the close of the Crown’s case, the prosecutor applied to amend the starting date of each count from 31 December 2009 to 1 May 2008.  This was the date when according to the mother, they moved into the Deception Bay house.  The application was made on the basis that the jury could come to a view that the complainant was mistaken about her age at the time of the offending and that it occurred earlier in time.  In refusing the application to amend his Honour observed that the defence case was that the appellant ceased to reside at the Deception Bay house, at least on a full time basis, from 13 February 2010.  His Honour continued:
“Although the prosecution witnesses did not concede that the defendant did not return after that time, it would be open to the jury to conclude that was so and that if there were any offending, it fell outside of the timeframe now currently alleged in the indictment.” (RB 176 lines 30–34).
[57]	No complaint is made in relation to his Honour’s direction.  The direction squarely drew the jury’s attention to the relevant evidence and the significance of the date 13 February 2010.  The direction expressly required the jury to be satisfied beyond reasonable doubt that the alleged offending occurred during the time period specified in each count in order to find the appellant guilty.
Consideration
[58]	Both the appellant and the respondent accept that in convicting the appellant of all five counts the jury would have had to find that:
(a)	the complainant was a credible and reliable witness and that each of the counts had in fact occurred in accordance with her evidence; and
(b)	as directed by the learned trial judge, the activity which is the basis of each of the counts occurred during the alleged time period of 31 December 2009 to 1 January 2013.  
[59]	The appellant, however, submits that the verdicts were unreasonable because the jury having regard to the evidence could not have been satisfied beyond reasonable doubt of the particulars of the offending when considering:
(a)	the fundamental contradictions inherent in the complainant’s evidence that critically infected her testimony such that she could not be considered a credible or reliable witness; and/or
(b)	that the jury was not entitled to reject the mother’s evidence that count 5 had not occurred in front of her.  Consequently, there was a doubt which the jury ought also to have experienced.  This doubt could not have been resolved by the jury’s advantage in seeing and hearing the evidence.
[60]	The appellant further submits that had the jury properly considered the learned trial judge’s direction with respect to time, they should have entertained doubt as to whether or not the appellant was in fact residing at the house or had the opportunity to commit the offences after 13 February 2010.  This was the date of the final domestic violence event to which the police were called.  In particular, the appellant relies on what was described as inconsistent statements made by the complainant to Child Safety officers on 9 April 2010 and 24 May 2011 compared to what the complainant told police.  The appellant adds to this the statement of the mother who told police in 2014 that she had not been in a relationship with the appellant for four years, which is consistent with the appellant having left the Deception Bay house in 2010.
[61]	The difficulty with the appellant’s submissions in relation to the time issue is that neither the complainant’s statements to Child Safety officers in April 2010 and May 2011, nor the mother’s statement to police in 2014 constitute “unchallenged evidence” as that considered by the High Court in Pell.  It was by reference to the “unchallenged evidence” in Pell that the High Court observed:
“Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt.  Plainly they did.  Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”
[62]	In the present case there was evidence both from the complainant and her mother that the appellant stayed at the Deception Bay house after early 2010.
[63]	The starting point is that after early 2010 both the mother and the complainant continued to reside at the Deception Bay house.  The complainant resided for a short while with her step-mother and father after the domestic violence incident in 2010.  She continued to reside with her mother at least until she stayed with her older sister which was at a time prior to the complainant living permanently with her father and step-mother commencing in 2014.  There was therefore evidence that the jury could accept that after early 2010 both the complainant and her mother were residing at the Deception Bay house.
[64]	Both the complainant and the mother gave evidence that after early 2010 the appellant would intermittently return to the Deception Bay house.  While the complainant could not be 100 per cent certain as to whether the appellant was living with her mother after early 2010, she recalled that her mother and the appellant remained in an on and off relationship “for a while”.  In the exchange set out at [31] above, the complainant, when pressed, was emphatic that the appellant would come and go.  This was consistent with the mother’s evidence that throughout the time she was living with the appellant at the Deception Bay house he would come and go.  According to the complainant’s mother, the appellant could be away for a period of up to 12 months.  On occasions he would leave for a couple of months at a time and live elsewhere.  The complainant’s mother did not accept that the appellant did not return to the house after 2010 because it had not been 11 years since she and the appellant had separated.  Her evidence was that she and the appellant were together for approximately 10 years and that he would move out and then move back in on a couple of occasions.  The complainant’s mother’s other boyfriends would only stay overnight and she did not recall the appellant living at the house when she had another boyfriend.  The jury were entitled to accept this evidence that the appellant was coming and going from the Deception Bay house after early 2010.
[65]	The evidence of the complainant, given in the course of cross-examination, concerning her two meetings with Child Safety officers did not require the jury to have entertained reasonable doubt as to the appellant’s guilt.  As I have already observed, neither of the documents upon which the complainant was cross-examined was tendered.  At the time of these two meetings the complainant was either eight years or nine and a half years of age in circumstances where, according to the complainant, the alleged offending occurred when she was around 10.  In relation to the first meeting as outlined in [27] above, the complainant had no memory of this meeting.  While the complainant accepted that she may have told officers that she was glad that the appellant was no longer around, she had been told to lie to Child Safety both by the appellant and her mother about drugs and anything that happened in the house.
[66]	The complainant’s acceptance of the statement she made to Child Safety officers on 24 May 2011 that she had not seen the appellant in a long time is not inconsistent with the appellant coming and going from the Deception Bay house.  As explained by the complainant in the exchange at [31] above: “Maybe in this instance he hadn’t been there for a while but he did come and go”.
[67]	The appellant’s statement in his telephone interview that he did not even know whether the complainant was 10 years of age when he was last at the Deception Bay house was not such an unequivocal statement as to require the jury to resolve the issue of opportunity in favour of the appellant.  As to the formal admission, as correctly submitted by the respondent, this does not take the matter any further.  The fact that the last police entry relating to domestic violence between the appellant and the complainant’s mother at the Deception Bay house was on 13 February 2010 does not resolve the issue of whether the appellant had the opportunity to commit the offending after 13 February 2010.  Further, the efforts of Senior Constable Hamlin to give evidence from police records identifying the appellant’s addresses after February 2010 were, in effect, shut down by defence counsel.
[68]	It may therefore be accepted that the issue concerning the appellant’s opportunity to commit the offending after early 2010 consisted of factual issues which were required to be resolved by the jury.  As correctly submitted by the respondent “…the evidence on this topic involved a factual controversy not an immutable evidential obstruction to a finding of guilt as it did in Pell’s case”.
[69]	As to count 5, the appellant submits that the credibility and reliability of the complainant are impugned by her own evidence that her mother was present and in a position to see what was occurring.  Friend 3’s evidence was that the complainant told her that her mother “would see these things and she wouldn’t do anything about it”.  The complainant’s mother’s evidence was that she had never seen the appellant molesting the complainant.  The appellant submits that the jury was not entitled to reject the complainant’s mother’s evidence that the conduct constituting count 5 had not occurred in front of her.  The question is whether, in light of this evidence and its effect on the credibility and reliability of the complainant, the jury acting rationally ought to have entertained a reasonable doubt not only in relation to count 5 but all counts.
[70]	The jury were, however, entitled to accept or reject such parts of the evidence as they thought fit.  The jury were entitled to accept the complainant’s evidence of the appellant’s conduct constituting count 5 but reject her evidence that her mother was in a position to witness the conduct.  There was evidence available to the jury which if accepted permitted the rejection of this aspect of the complainant’s evidence.  First, the complainant at the time of the offending was facing the appellant, not the television or her mother.  From the diagram of the lounge room it is evident that the complainant’s line of sight was down the hallway and not towards her mother.  The complainant’s evidence in re-examination was that she felt as if her mother could see but the complainant could not see her mother because the complainant was looking down the hallway.
[71]	When asked in her second s 93A statement why she thought her mother, who she said was watching television, may have seen what was occurring, the complainant could offer no reason.  There was evidence before the jury from the complainant’s mother recorded at [37] above that she was an alcoholic who when drunk would pass out for a few hours.  This occurred a couple of times a week.  The distance between the one seater and the two seater was about two metres.  It was night time and there was no exploration of the lighting near the location of the single seater in the evidence.  Further, given the complainant’s description of how the offending occurred and the position of the complainant to the appellant, it was open to the jury to reason that the positioning of the complainant’s mother, the complainant and the appellant may have made it unlikely for the offending to be visible to the complainant’s mother.
Disposition
[72]	The appeal should be dismissed.