R v Pau

[2016] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAU [2016] QCA 197

PARTIES:

R
v
PAU
(appellant)

FILE NO/S:

CA No 162 of 2015
DC No 1326 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 July 2015

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the complainant’s evidence was supported by other evidence – where the jury was entitled to reject the appellant’s evidence – where the primary judge gave appropriate judicial directions that the jury must not convict unless satisfied of the complainant’s evidence beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant alleges inadmissible evidence of past acquittals was improperly before the jury in the complainant’s statement to police – where the appellant alleges the primary judge did not warn the jury as to the use of the inadmissible evidence – where the evidence referred to uncharged acts and was not about the counts on which the appellant had been acquitted at an earlier trial – where the primary judge directed the jury about two other episodes of uncharged acts relied on by the prosecution – where a specific direction about the evidence would have unnecessarily drawn the jury’s attention to imprecise language of a 13 year old – whether there was a miscarriage of justice

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v GAP [2013] 1 Qd R 427; [2012] QCA 193, cited
R v PAS[2014] QCA 289, related

COUNSEL:

The appellant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  The appellant, PAU was convicted after a four day jury trial of deprivation of liberty (count 1); indecent treatment of a child under 12 under care (count 2) and three counts of rape (counts 3, 4 and 5).  He has appealed against his convictions on two grounds.  The first is that the verdicts were unsafe and unsatisfactory.  The second is that justice miscarried due to irregularities and defects, namely admitting inadmissible evidence in respect of which the appellant had already been acquitted, and that the trial judge erred by not directing the jury as to the disclosure of his previous acquittal.  A consideration of these grounds of appeal requires this Court to review the evidence at trial and relevant aspects of the judge’s directions.

   Background

2. The case against the appellant originally went to trial in March 2014 on a different indictment.  On that occasion, the appellant was convicted of three counts of rape, deprivation of liberty and aggravated indecent treatment and acquitted of two counts (indecent treatment and attempted rape).  He successfully appealed against his convictions, a retrial was ordered[1] and the indictment with which the present appeal is concerned was presented.  It did not charge the two offences on which the appellant had been acquitted.

   [1]R v PAS [2014] QCA 289.

   The evidence at trial

3. The complainant was born in July 1997.  The appellant was her mother’s partner.  The events the subject of the charges occurred on a single occasion on an unknown date between 1 April 2006 and 1 April 2008 when the complainant was between eight and 10 years old.

4. The appellant formally admitted the complainant’s date of birth; that between 30  October  2006 and 1 April 2008 he was the registered owner of a white Ford Falcon utility, registration number 872 CAJ; that in 2012 and 2013 the complainant’s mother was in a relationship with and living with BR; and that, on an unknown date between mid-2012 and early 2013, BR, when cleaning his house, found four pages of notes written by the complainant which he showed to the complainant’s mother and were provided to police on 20 March 2013.

5. The complainant gave a detailed statement to police in an interview conducted in June 2011 when she was 13 years old. This was tendered under s 93A Evidence Act 1977 (Qld).[2]  It had excised from it all reference to the two charges on which the appellant was acquitted.

   [2]Exhibit 3.

6. When police asked her what she had come to talk to them about she gave the following account.  She was raped when she was seven or eight by her former stepfather, the appellant.  In 2005 they moved into her grandfather’s house.  The appellant and her mother were living there in a caravan and the complainant was sharing a bedroom in the house with her brother.  One morning the appellant “snuck” in and said he had a fight with her mother.  He asked her to let him stay for a while before he went to work.  She told him to get out but he started feeling her “boobs” and her vagina.  She told him to stop but he would not listen.  She slowly started to scream.  He left because her grandfather was in the lounge room.[3]  (This conduct was not the subject of any charge.)

   [3]Police interview, p 8, AB 184.

7. Nothing further happened for some time.  She moved with her family to another house.  The appellant would always beat her mother; put knives against her head and the back of her throat; pull her hair; drag her upstairs and bash her.  He sometimes threatened to kill her.  At this new house she and her younger sister, T, shared a bedroom.

8. One night when she was about 10 or 11, she went with him in his car to get dinner from McDonald’s.  They drove past McDonald’s.  He said they were going to Subway.  They drove past Subway.  He said it was shut and drove to Hungry Jack’s.  He started to feel up her leg and his hand moved towards her vagina.  She told him to stop and he did.  They collected dinner from Hungry Jack’s.  He drove straight past their house.  She asked why there were not going home and said she wanted to go home.  He told her she was not going home and they drove past her grandfather’s house a couple of times.  She tried to jump out but the appellant grabbed her, punched her across the face and locked the car door.  She was crying.  They drove past her grandfather’s friend’s house.  She was screaming to be let out saying that she just wanted to go home and see her Mum.  He told her that she was “not fucking going home;” she was staying with him.  She kept screaming and crying.  He drove to an industrial area (count 1: deprivation of liberty).[4]

   [4]Above, p 9, AB 185.

9. As he was driving he played with her vagina inside her underwear, “inside it … not on top of it.”[5]  She did not know what he had inside her (count 2: aggravated indecent treatment).

   [5]Above, p 38, AB 214.

10. After he stopped the vehicle he pushed her head down towards his penis and made her suck it, moving her head up and down.  He said she was really good at it.  As she was sucking his penis, a police car drove past.  He told her if she screamed or made a noise or moved he would kill her and she would not see her mother again.  He pretended to be on his mobile phone.  After the police car drove away, he pushed her head down and made her suck his penis again (count 3: rape).[6]

    [6]Above, p 41, AB 217.

11. He then drove her to another location.  He pushed her up against the dashboard of the vehicle and “stuck” his penis inside her vagina from behind.  She was telling him to stop.  She was screaming (count 4: rape).  After a while he stopped and made her suck his penis again (count 5: rape).[7]

    [7]Above, p 42, AB 218.

12. They drove off and went to the shops.  He bought her a drink.  He said that if she told anyone about what happened he would find and kill her.  He kept threatening her.  They were gone for about two hours in all.  When they got home her mother was crying and asking what happened.  All her brothers, her sister and her grandad were concerned about her.

13. A couple of days later the appellant came into her bedroom during the night and was feeling up her arm.  She screamed out to her mother that he was under her bed and her mother came in.  He said that he had seen a mouse and was trying to catch it.[8]

    [8]Above, p 46, AB 222.

14. She stated that in 2006 she told her aunty that he “snuck” into her bed and played with her vagina and boobs.[9]  Her aunty told her to tell her mother.  She tried to tell her mother when they were living at her grandfather’s house.  Her mother said she was just a little girl, only eight years old and she wouldn’t know; the appellant would not touch her; he was not like that.[10]

    [9]Above, p 24, AB 200.

    [10]Above, p 11, AB 187.

15. The appellant then began to hit and punch her when her mother was not home.  He would also punch her sister in the face and bash her mother, pull her hair, and stick knives against her head.  Her mother would tell the children to go upstairs.  That happened for about two years.  Her mother would not leave the appellant as she loved him.  He once chased her mother around her grandfather’s house with a knife in the presence of her uncle and her great-aunty.  Her mother ran outside.  The appellant was swearing at her mother in front of the complainant’s grandfather, calling her “a fucking stupid slut” and threatening to “fucking kill” her.[11]

    [11]Above, p 11, AB 187.

16. The appellant only raped her vaginally once and that was on the occasion when they were gone for about two hours.  When asked what else she remembered happening she said, “He’d always try and make me, like, suck his penis and stuff.  But I’d always refuse.  But one time, he made me do it, ‘cause he punched me in the face and he’d always beat me up if I didn –, like, refuse to do it.”  That kept happening until 2008 when she and her sister, T, went to Melbourne.  There were no charges concerning these matters.

17. She told family members that the appellant had “touched [her] and stuff” but she did not tell them that he raped her.  She has only seen the appellant a couple of times since 2008.  On one occasion he rang and asked to speak to her mother.  He said, “I’m sorry what happened that Saturday night, I didn’t mean to do it.”  She responded, “Get lost, you putrid cunt.”  She saw him once in 2009 and he gave her “a cheeky look” which made her worried and scared that he was coming to get her.[12]

    [12]Above, p 12, AB 188.

18. She gave additional pre-recorded evidence on 19 December 2013 when she was 16 years old.  She identified four pages of diary notes which she made when she was in high school before she spoke to police; she did not remember which year.  The notes recorded an account of counts 1 to 5 which was broadly consistent with her account to police.[13]  She was cross-examined from 10.30 am until 2.20 pm, with one six minute and one 30 minute break.  She maintained that the appellant committed each of the charged acts and that her account to police was accurate.  When asked about her statement to police that the appellant put his fingers inside her vagina, she said that when she spoke to police she did not understand what “inside” or “outside” meant; she thought “inside” meant “inside her vagina flaps.”  She now understood “inside” to mean “inside her vagina hole.”  She remembered the appellant touched her on the top of her skin.  He did not put his fingers “inside her vagina hole.”[14]

    [13]Exhibit 7, AB 166 – 169.

    [14]Police interview, p 32, AB 257.

19. She said that she complained to her aunty, her mother and father in Melbourne and to the Victorian police about the initial incident that was not the subject of any charge.  She did not give evidence that she complained about the appellant to her sister, T.

20. The complainant’s mother gave evidence that she was in a relationship with the appellant for five or six years from 2003.  She then had three children: the complainant, her daughter T, and a son, J.  She and the appellant had three more boys together.  She did not give evidence that the complainant told her, when they were in Melbourne, about any incident with the appellant.

21. In 2005, she had a conversation with the appellant about him climbing into bed with the complainant.  He said it was cold and she reminded him of his daughter.

22. The mother remembered an incident when the complainant was nine or 10 years old.  The appellant and the complainant went to get takeaway food and were gone for at least a couple of hours.  They were going to McDonald’s; a return trip using the drive-through should have taken between five to 10 minutes.  She was really worried when they did not return.  The appellant was not answering his mobile phone; it was switched off.  When they arrived home she knew something was wrong.  The complainant was upset.  The mother questioned her but she made it plain she wanted to be left alone and went straight to her room.  Hungry Jack’s was about a 20 minute drive one way.  The mother said that, after this incident, the complainant stayed at her grandfather’s house.  The mother confirmed that the appellant was frequently violent towards her in front of the complainant.  On one occasion he dragged the mother upstairs, holding a big bread knife behind her neck.  She was not aware of any rats in the girls’ bedroom when the appellant lived with them.  On one occasion her daughters woke her and told her that the appellant was underneath the complainant’s bed.  He said he was there because he saw a rat or a mouse.  The complainant never spoke directly to her about the things which the complainant wrote about in an old exercise book, found by the mother’s subsequent partner, BR, in early 2013.  The mother went with the complainant to speak to police in May 2011.

23. T gave evidence that she remembered an incident when she and the complainant were sleeping in their bedroom in their grandfather’s house.  The complainant was on the bed and T was on the floor on a mattress.  The complainant woke her up because the appellant was under the bed.  T saw his silhouette.  The girls called out to their mother.  The appellant said something about a rat.  She had never seen any rats in their room.  At the beginning of  2011 the complainant told her that, on the night the complainant and the appellant were late returning from McDonald’s, the appellant had driven to Hungry Jack’s and then into bushland where he made her suck his penis.  She said that he punched her in the face and they stopped somewhere else; he pulled down her pants and raped her “in her bottom”.[15]  The complainant said that they drove past her grandparents’ house and she tried to jump out but he had locked the doors and that they brought back the McDonald’s but it was cold.  T could not remember the conversation word for word.  The complainant was upset and scared; her voice was shaky.  She told T not to tell anyone.

    [15]T2-35, AB 71.

24. In April 2011, T told their mother what the complainant had said.  T recalled that on the night the complainant and the appellant returned late with the takeaway food, they were gone for about two hours in the appellant’s white work utility.  T recalled her mother trying to phone the appellant to find out where they were.  Her brothers were asleep but she and her mother were awake.  The complainant looked like she had been crying and had puffy cheeks and eyes and streaks down her face.  She went straight upstairs to the bedroom and T did not see her again that night.  T had no recollection of the appellant’s utility ever breaking down.  In cross-examination, T agreed she said at the earlier trial that the complainant told her the appellant had raped her in the bottom and she understood this to mean he had anally raped her.

25. Police officer Bowman gave evidence that the complainant’s aunty did not wish to provide a statement.  Photographs of the exterior[16] and interior[17] of the appellant’s utility which he was driving at the time of the alleged offences were tendered.

    [16]Exhibit 9, AB 174.

    [17]Exhibit 10, AB 175.

26. The appellant gave evidence about his relationship with the complainant’s mother, the complainant and her siblings.  He admitted there was violence between he and the mother.[18]  He would often buy the family takeaway food, generally a few times a week.  On no occasion was he away with the complainant in his utility for two hours to pick up takeaway food.  He denied all the complainant’s allegations.  In cross-examination he denied he told the complainant’s mother in 2005 that he got into the complainant’s bed because he was cold.  He denied telling the complainant’s mother, after being away with the complainant for two hours to collect takeaway food that his utility had broken down.  He denied ever getting into bed with the complainant.  He accepted that on one occasion he was under the complainant’s bed chasing a rat.  He accepted that there were times when he was alone with the complainant in his utility, a reliable vehicle.  On no occasion did he return with takeaway food that was cold and inedible, although takeaway food from Hungry Jack’s may have been slightly cold.

    [18]T3-4, AB 86.

    Relevant aspects of the judge’s summing-up

27. The trial judge gave the following directions in respect of uncharged acts:

    “in addition to the evidence of the complainant concerning those five offences charged on the indictment, you also heard evidence of her – of other alleged accidents [sic] in which she says sexual activity involving the [appellant] occurred.  There’s the 2005 incident when she says he climbed into bed with her and touched her on the breast and the vaginal area...and also there’s the final incident when the complainant says that the [appellant] was under the bed touching her on the arm and the Prosecution suggestion is that once again that was because he had a sexual interest in this particular child.  Now, in respect of that evidence of both of those alleged incidents, you can only use it if you accept it beyond reasonable doubt that those incidents occurred.

    In respect of the first incident, the one of climbing into bed, the mother says the [appellant] admitted getting into bed with the girl, but gave an innocent explanation for why he did.  He denies having said that to the mother.  You can act on that admission if you find it was said and if you find it was true, but if – but only if you find he said it to the mother and if you find that when he said that, he was truthfully admitting something that he’d actually done and, of course, if you accept that, well, in the same way, you have to be satisfied that these incidents, the climbing into the bed or being under the bed on the later occasion, you have to be satisfied they occurred beyond reasonable doubt.

    If you do not accept that, then, your failure to accept it will bear upon whether or not you accept the complainant’s evidence relating to the charges before you beyond reasonable doubt.  If you do accept the complainant’s evidence that these other acts of a sexual nature took place, then you can only use that against the [appellant] in relation to the charges before you if you are satisfied that the evidence demonstrates that the [appellant] had a sexual interest in the complainant and the [appellant] had been willing to give effect to that interest by doing those other acts.  If you are persuaded of that, you may think it’s more likely that the [appellant] did what is alleged in the charges under consideration.  If you’re not so satisfied, then the evidence cannot be used by you as proof of the charges before you.

    Now, of course, whether any of those other acts occurred, and if they did, whether those occurrences make it more likely that on a different occasion the [appellant] did the acts of which he is charged is a matter for you to determine.  Remember, even if you are satisfied that some or all of those acts did occur, it doesn’t necessarily follow that you’d find him guilty of the acts the subject of the charges.  You must always decide whether, having regard to the whole of the evidence, the offences charged have been established to your satisfaction beyond reasonable doubt.

    There was also evidence placed before you on the Crown case of domestic violence in the home by the [appellant].  The [appellant] in his evidence accepted he was violent at times in the home.  This evidence has been led only for the purpose of putting the complainant’s conduct into context as showing that the course of violent conduct by the [appellant] might explain the complainant’s failure to complain at an earlier time, to explain why she says that she found the threats she alleges made to her by the complainant [sic] of physical violence plausible.

    You can only use that evidence if you are satisfied of it once again beyond reasonable doubt.  If you do not accept the evidence of domestic violence occurring, then that finding would bear upon whether you accept the complainant’s evidence relating to the charges.  If you do accept the evidence, then it can only be used by you in relation to the charges before you in the specific way in which I now direct.  The evidence may be used by you to find why the complainant did not make a complaint at an earlier time, but it may be only used for that purpose.  Of course, in relation to all of these incidents which aren’t the subject of charges, if you do not accept the complainant’s evidence relating to those incidents, you then take that into account in considering her evidence relating to the alleged events the subject of the charges before you.

    I warn you of this: you should have regard to this evidence of the incidents not the subject of charges only if you find it reliable.  If you accept it, you must not use it to conclude that the [appellant] is someone who has a tendency to commit the type of offence with which he is charged.  It would be quite wrong for you to reason you are satisfied he did acts on other occasions, whether they might be sexual acts towards the complainant or domestic violence, and therefore he is – it’s likely he committed a charged offence or offences.  Even if you are satisfied he did those other acts, it doesn’t logically follow that he committed these offences charged on the occasions charged.  Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose – purposes mentioned and before you can find the [appellant] guilty of any charge, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge.”[19]

    [19]Summing Up, 15 – 16, AB 125 – 126.

1. His Honour pointed out to the jury the considerable delay between the commission of the alleged offences and the complainant’s reporting of them to police and that this may have made it more difficult for the appellant to test and meet the complainant’s allegations.  For that reason they should scrutinise the complainant’s evidence with great care before concluding the appellant was guilty.  The jury should also consider that the complainant was only 10 or 11 years old at the time.  His Honour warned the jury that it was dangerous to convict on the complainant’s evidence alone unless, after considering the evidence with this warning and with all the other evidence in the case, they were satisfied beyond reasonable doubt of its truth and accuracy.

2. The judge fairly summarised the defence case as follows.  The appellant frankly admitted his domestic violence but that did not mean he had committed the charged sexual abuse of the complainant.  The judge reminded the jury not to approach their task by reasoning that because the appellant had done some unacceptable acts in the past he therefore committed the charged acts, and to act on the evidence on accounts before them and only convict if satisfied beyond reasonable doubt.  The judge reminded the jury that the defence case was that, had there been a vaginal rape of an 11 year old girl she would have been expected to complain of pain and resulting injury and yet this was not her evidence.  This raised a doubt as to whether there was penetration.  If the jury had a doubt about that, they would have a doubt about her evidence on all counts.  Defence counsel reminded the jury of the inconsistency between the evidence of the complainant and T as to the details of the complaint to T and that the complainant said she told her mother about the rape but her mother gave evidence that no such complaint was made to her.  These matters would cause the jury to have a reasonable doubt about the complainant’s credibility generally and they would acquit on all five charges.

3. Neither counsel sought any redirections.

   Unreasonable verdict

4. The appellant, who is self-represented in this appeal, contends the verdict was unreasonable and against the weight of the evidence.  This ground of appeal requires the court to consider whether, after making an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt : MFA v The Queen.[20]

   [20](2002) 213 CLR 606, 614 – 615.

5. The jury were entitled to reject the appellant’s evidence.  Unlike the appellant’s evidence, the complainant’s evidence was supported by other evidence.  The complainant’s mother said that in 2005 he admitted being in the complainant’s bed.  The jury were entitled to reject his innocent explanation and to consider this supported the complainant’s account of his subsequent conduct.  The complainant’s mother and T confirmed there was an episode when the complainant and the appellant went for takeaway food and were away for several hours in the appellant’s utility when the trip should have taken no more than 40 minutes.  On their return, according to the complainant’s mother, the food was cold.  Both the mother and T recalled that the complainant was upset and went straight to her room.  He therefore had the opportunity to commit the offences.

6. The appellant emphasises that neither the mother nor T gave evidence of any injuries to the complainant’s face, either when she returned or in the days following, and submits that this was inconsistent with the complainant’s evidence that he had punched her to the face on several occasions.  The jury, however, may have considered that the punches were not so forceful as to leave significant marks or bruising and, in any case, T stated that the complainant’s cheeks were “puffy”.  The absence of evidence of actual bruising or serious injury to the cheeks was no reason to reject the complainant’s evidence.  The complainant was distressed after the incident.  Her diary notes, were broadly consistent with her evidence.  Although not located until after her complaint to police, they were made some years before the complaint.  The lateness of her complaint was entirely consistent with her claimed fear of the appellant who had admitted to being violent towards the mother.  The jury were given appropriate judicial directions that they must not convict unless satisfied of the complainant’s evidence beyond reasonable doubt.

7. The appellant’s admission in evidence that he was under the complainant’s bed at night in suspicious circumstances gave some support to aspects of the complainant’s evidence, and his explanation that he was chasing a rat was fanciful.

8. The appellant contends the complainant’s evidence should not be accepted because it was inconsistent with the photograph of the utility’s interior[21] but there was nothing in the complainant’s evidence that was inconsistent with this.  This contention is not made out.

   [21]Exhibit 10.

9. The appellant emphasises that the complainant originally told police that the appellant put his fingers inside her vagina but later in cross-examination she said that he had only put his fingers on the outside of her vagina.  Her explanation for this inconsistency, he contended, was implausible and required the rejection of her evidence.  The jury, however, were entitled to accept her explanation for the inconsistency set out at [18] of these reasons.

10. Having reviewed the whole of the evidence at trial, I am satisfied it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on each count.  The first ground of appeal is not made out.

    Inadmissible evidence

11. The appellant alleges that evidence of his acquittals of indecent treatment and attempted rape were improperly before the jury.  He contends that justice miscarried due to the admission of inadmissible evidence of which he had already been acquitted and that the judge erred in not directing or warning the jury as to the use that could be made of the complainant’s evidence that “he’d always try and make me, like, suck his penis and stuff.  But I’d always refuse.”  The evidence he relies on in making this contention is set out at [16] of these reasons.[22] He contends the trial judge erred in allowing that evidence to be led and in not warning the jury. That contention seems to be misconceived. Affidavit material tendered by the respondent sets out the complainant’s evidence by way of her statement to police under s 93A at the first trial. When this is compared to her evidence at this trial, it is clear that her evidence of the counts on which the appellant was acquitted at the first trial was not before the jury at this trial. The complainant’s diary notes were also edited to exclude any reference to the offences on which he was acquitted. All this was done with the consent of the appellant’s experienced counsel at his second trial.[23]

    [22]Appellant’s Outline, [16].

    [23]T1-5, l 40 – l 45, AB 12.

12. It is true, as the appellant contends, that at two points in the complainant’s interview with police she used the expression that the appellant “would always.”[24]  These statements were arguably allegations by the complainant of uncharged acts but there was no reason to consider they referred to the occasions on which the appellant was found not guilty at the earlier trial.  As I have noted, the judge gave appropriate directions about the two episodes of uncharged acts relied on in the prosecution case at this trial.  Whilst the judge said nothing to the jury about the complainant’s allegations that the appellant “would always” do things to her, no emphasis was placed on these allegations at trial, either by the prosecution or the defence.  To have referred to them in the judicial directions as to uncharged acts would have unnecessarily drawn attention to what was most likely no more than the loose and imprecise language of a 13 year old.  A specific direction was unnecessary.  Had the jury been inclined to place any weight on the comments, the judge’s careful jury directions as to how to deal with evidence of uncharged acts and the appellant’s domestic violence would have left them in no doubt that the comments could not be used to reason that, because the appellant “would always” do those things, he was therefore guilty of the specific charged acts.  The fact that experienced defence counsel did not ask for the direction now sought is consistent with my view that such a direction would not have been helpful to the appellant.  This conclusion is also consistent with the approach of this Court in R v GAP.[25]

    [24]Police interview, p 10, line 44 and p 11, l 52 – l 53, AB 186 – 187.

    [25][2013] 1 Qd R 427, [96].

13. For these reasons this ground of appeal is not made out.

    Conclusion

14. As the appellant has not made out either ground of appeal, the appeal against conviction must be dismissed.

15. MORRISON JA:  I have read the reasons of Margaret McMurdo P and agree with those reasons and the order her Honour proposes.

16. ATKINSON J:  I have had the advantage of reading the reasons for judgment of McMurdo P.  I agree with those reasons and with the order her Honour proposes.