R v Bickell
[2020] QCA 37
•6 March 2020
SUPREME COURT OF QUEENSLAND
CITATION:
R v Bickell [2020] QCA 37
PARTIES:
R
v
BICKELL, Stephen Roderick
(appellant)FILE NO/S:
CA No 213 of 2019
DC No 1439 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 9 August 2019 (Rafter SC DCJ)
DELIVERED ON:
6 March 2020
DELIVERED AT:
Brisbane
HEARING DATE:
27 September 2019
JUDGES:
Morrison and McMurdo JJA and Crow J
ORDERS:
1. The appeal be allowed.
2. The appellant’s convictions be set aside and a verdict of acquittal entered on each Count.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL – ALLOWED – where the appellant was convicted of two counts of indecently dealing with a child under 12 years of age and attempted indecent dealing – where the appellant was acquitted of rape – where the appellant appeals the conviction on the basis that the verdicts of the jury were unreasonable or cannot be supported having regard to the evidence – where the appellant alleges the complainant cannot be considered a credible witness due to the inconsistencies between her preliminary complaints and the allegations in her evidence – whether the jury ought to have harboured a doubt as to guilt – whether the doubt persists notwithstanding the advantages of the jury – whether upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty
Criminal Code (Qld), s 668E(1)
Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited
James v The Queen (2014) 253 CLR 475; [2014] HCA 6, considered
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pate (a Pseudonym) v The Queen [2019] VSCA 170, cited
Pell v The Queen [2019] VSCA 186, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Chai (2002) 76 ALJR 628; [2002] HCA 12, cited
R v Coutts [2006] 1 WLR 2154; [2006] UKHL 39, cited
R v Holzinger[2016] QCA 160, considered
R v PBA[2018] QCA 213, considered
R v Sun[2018] QCA 24, cited
R v Tesic[2019] QCA 195, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, appliedCOUNSEL:
A J Glynn QC for the appellant
C N Marco for the respondentSOLICITORS:
Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: On 9 August 2019 a jury found the appellant guilty on two counts of indecently dealing with a girl under 12 years, and one count of attempting to do so.
The complainant was the daughter of the appellant’s friends, and the offending conduct occurred on two occasions when the appellant stayed over at their house while visiting from London. On each occasion the complainant was in bed, after her parents had gone to bed.
Count 1 (indecent dealing) and Count 2 (rape) were alleged to have occurred on 31 January when the complainant had just turned eight years old. Count 3 (attempted indecent dealing) was alleged to have occurred on 15 March 2010, when the complainant was about nine.
The appellant was convicted on Counts 1 and 3. He was acquitted on Count 2, but found guilty of the alternative count of indecent dealing.
The complainant did not tell anyone about the events of 31 January 2009 until 2015 when she revealed a little to a friend, FFC. Then in 2016 she revealed some more information to another friend, SFM. Then in 2017 she told another friend, TFJ, her counsellor/therapist and her mother. Formal complaint was made to the police in 2017 after the complainant told her mother.
The appellant challenges his convictions on two grounds:
(a)that the verdicts are unreasonable or cannot be supported by the evidence; and
(b)that there was an error in directing the jury that an alternative verdict was open on Count 2 (rape).
The legal test
The principles governing how the first ground of appeal must be approached are not in doubt. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
[1](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494.
This Court has often repeated the principles derived from M v The Queen,[2] which govern the role of an intermediate appellate court when the ground of appeal is that the verdict is unreasonable. The plurality said:[3]
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
It was with those considerations in mind that some members of this Court have thought it necessary to qualify the statement by Barwick CJ in Ratten v. The Queen that: “It is the reasonable doubt in the mind of the court which is the operative factor”. Barwick CJ went on to say:
‘It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration.’
The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be 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 accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”
[2](1994) 181 CLR 487; [1994] HCA 63.
[3]M v The Queen at 493-495; emphasis added; internal citations omitted.
The High Court restated the pre-eminence of the jury in R v Baden-Clay.[4] As summarised by this Court recently in R v Sun,[5] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[6] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[7]
[4](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.
[5][2018] QCA 24, at [31].
[6]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.
[7]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.
Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:
“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”
The complainant’s evidence
[8][2018] QCA 213 at [80].
Counts 1 & 2 – 31 January 2009
Counts 1 & 2 occurred on 31 January 2009, when the complaint had just turned eight years old. The appellant, a friend of her parents, was visiting them from London. She said the appellant came into her room, and touched her through the bars of her bunk bed, firstly in a general way between the legs, on her genitals (Count 1), then a second time, including using his finger or fingers to penetrate her vagina (Count 2).
In her s 93A police interview,[9] as is often the case with such interviews, the complainant’s account took place in two parts, the first a relatively uninterrupted narrative, and the second consisting of responses under questioning. The narrative account included these components:
[9]Appeal Book (AB) 491.
(a)“I woke up and … he was … standing up … kind of like next to the bunk bed and I was on the top bunk”;
(b)“I can’t fully remember but … I think I woke up from him moving the sheets”;
(c)“he tried to move the sheets and I wasn’t quite sure what he was doing and … I was facing towards the railing”;
(d)“he put his hands through the bars and … moved the sheets out the way”;
(e)“he put his hands … in through my … pants and then … he started trying to … touch me”;
(f)“he tried putting his … finger in between … my genitals”;
(g)“I can’t remember how long that was going on for until I … decided to pretend as if I slightly woke up and moved”;
(h)“he went down to the bottom bunk again”;
(i)“he stood back up and I couldn’t see him ‘cause I was facing the other way and he put … his hands … back through the bars and tried … he put his hands like through … through my pants again and tried … touching me but … through my legs and he … put … like he … I don’t know how to phrase it. He, like he just, he um, he put, he penetrated me through … with his hands”;
(j)“I don’t know how long that was until I decided to sit up and he put, he … got back down onto the bottom bunk”; and
(k)“I got out of the bed … and said … where my parents are and he said … he thought they were outside … in the … lounge room and I don’t remember how long this whole period was because … by that stage my dad was … in the lounge room but he was passed out ‘cause he’d been drinking and he was snoring … and the T-V was on and then I went and found my mum in her bedroom but … she was sleeping and I wasn’t quite sure what to do so … I went back into my room and I went to sleep”.
The complainant’s account under questioning then contained the following responses as to the events:
(a)she had woken up because someone moved her sheets;
(b)it “felt … like trying to pull my pants down”;
(c)the appellant pulled down the pants but not completely;
(d)“he put his hands … in my underwear”;
(e)“he was like … he’s touching the front of my … genitals and then … he tried putting … one of his fingers in … further … in between my legs but … I think my legs were on top of, like rolled over or they were on top of each other so … he couldn’t really … get far enough”;
(f)“he just kept putting his finger further and further until I … moved over, moved around”; by “further and further” she meant: “I’m guessing until … he could … penetrate me I guess but … he couldn’t, he couldn’t really reach far enough”; he was not rubbing his hand up and down but: “I think he was just trying to get further until he could put his finger in, into me”;
(g)she rolled over and he stopped;
(h)then: “he put his hand … in my underwear again and … he put his hand, his fingers back through … and tried and then ‘cause he could, he put his fingers … through in between my legs and then … inside me. I don't remember … how many fingers”;
(i)he “Put his … hand through … between my bottom and through and then … into my vagina”; and
(j)she didn't scream: “I don’t think I … made any sounds because I don’t know, I can’t remember how long he did that for until I moved but … I don’t think I said anything”.
When asked how she knew she had been penetrated the complainant said:[10]
(a)“I don’t know how to answer that, I don’t know what you mean”;
(b)“I know it felt different then when he was trying to do it from the front”;
(c)“I obviously didn’t know anything about that stuff at eight but I know it felt different from the front and … yeah, just felt different”; and
(d)“I could feel him going further inside me then it was just on the front, … I could feel it going … it was in … I don’t know I can’t explain that very well but … I could feel it inside me”.
[10]AB 500-501.
On the complainant’s account to the police, during the appellant’s first time of touching (Count 1) he did not penetrate her, but touched her on the vagina.
As to the second time of touching (Count 2), she was asked what happened when he penetrated her. She responded: “… like I said I can’t really remember how long it was but I did move and he noticed that I moved and … pulled his hand out straight away and … I seem to recall he ducked under because … I can’t remember what bed … he was on but I feel like … he was under on the bunk, underneath ‘cause he ducked under pretty quickly”.
The complainant did not tell her mother about the incidents in 2009 until 2017. In the meantime she told a best friend, FFC, in 2015, and another best friend, SFM, in 2016. Then in 2017 she told another friend, TFJ, a counsellor/therapist, and finally her mother.
Count 3 – 15 March 2010
The appellant was visiting from London. He stayed with the complainant’s parents again, and slept on the lounge.
In her narrative account in the police interview the complainant said these events were not comparable to those in 2010, “… it’s nothing as bad though”. She said:
(a)“I remember … a lot more about that night than any other night because … it was like, I was a bit older obviously but … because I knew him and I was wary of what … he had done so … he like stepped into my room to have a look at it with my mum or my dad and then walked back out and then that night … I like promised myself I wouldn’t go to sleep. 'Cause I felt like he was going to do it again and this time I’d be awake for it. But I fell asleep and … I was on the bottom bunk this time … and I was facing towards the wall with the sheet over the top of me and … he’d walked in, I’m pretty sure I used to keep my door shut. … and I didn’t hear the door open but he came in and he sat, he actually sat on the bed, … next to me and kind of … faced outwards but sitting on the bed and I woke up from him moving the sheets again. But I didn’t … just like wake up, I woke up and I turned over and … I could see like a light … he had … a light on his phone or something. … moving around and he got up and then walked out like really fast”;
(b)“I went into my parent’s room and I … I told them that he was in my room and he’d sat on the bed and I saw a light and stuff and they went out and talked to him and I couldn’t tell you what they said because … I had to stay in my room”;
(c)“he had to go sleep in his car ‘cause he was still … had alcohol in him”; and
(d)“I slept in my mum and dads room for the rest of the night”.
Under questioning the complainant maintained her account that the appellant did not touch her, but just moved the sheets.
Trial – complainant’s evidence in chief
In her evidence in chief, given when the complainant was 18 years old, she affirmed that what she told the police was the truth. She also said that her handwritten notes,[11] which had been given to police, were correct. She said those notes were written by her because “I’m not very good at talking” and “I’m really bad at talking and remembering things under pressure”.
[11]Exhibit 2, AB 457.
Having identified various plans she had done for the police, she was then asked about those to whom she had spoken about the events. She said she did not remember what she said to FFC, nor how much detail she went into. Though she said they spoke at school in about grade 8 or 9.
The same was the case with SFM. She said they spoke in a carpark where SFM lived, but could not remember what was said, or the detail.
She said she told TFJ in a Facebook conversation, which was reflected in a note which became Exhibit 6. However, she said the Facebook message was not completely accurate.
She told her counsellor/therapist in 2017. She said she did not tell her much detail but could not remember much more than that.
She told her mother that night after speaking to the counsellor/therapist. Once again she could not remember the terms of the conversation, nor the detail. Between then and when the complainant saw the police she wrote the notes that became Exhibit 2. Those notes were read to the jury. Relevantly they recorded her account much as she gave in the police interview.
Trial - complainant’s cross-examination
The complainant was subjected to a lengthy cross-examination, during the course of which it was put to her that:
(a)she had rote learned her account before speaking to police;
(b)it was not true that it was her idea to write down her notes in a book;
(c)she was a liar, who lied with SFM about wagging school, and lied to TFJ in her Facebook message;
(d)she tried to convince SFM to change her recollection of what she had been told by putting pressure on her; and
(e)she was an unmitigated liar about the events; this was put in various ways, but directly as “you knew it was a false story”[12] and “you have made up these allegations”,[13] and that “you can’t now admit that you lied to [your parents] … and made up this story”.[14]
[12]AB 244 line 23.
[13]AB 245 line 20.
[14]AB 245 lines 38-44.
The essential aspects of the complainant’s evidence in cross-examination included the following.
She had once messaged SFM about needing similar stories “for when we get in trouble about wagging” school. She spoke to her about how she and SFM could get away with wagging if they told lies.
She knew after she spoke to police that they were going to speak to those people she had spoken to, i.e. the preliminary complaint witnesses.
TFJ told her a “sordid tale” of his own sexual abuse. She responded that her experience was “nothing compared to yours”. It was put to her that she lied to TFJ. She denied that but said that she “embellished the story” and “exaggerated” it. She agreed that she lied about certain details to TFJ: e.g. that the appellant would grab her and stroke her stomach; that she was scared by that; that he violently grabbed her; that he continued to do it for as long as her parents didn’t know. And in what she said to TFJ, she did not mention that in 2010 he sat on her bed or shone a light.
Asked whether she was trying to get sympathy from TFJ, she said: “Possibly. I was 16 and he had just told me that story. I guess I was trying to do the same – trying to make it …”.
She agreed she had not told her parents about what happened in 2009. Initially she said she did not remember whether she had said anything to them, then as to the events in 2010 she agreed that she told her parents that she had been woken by a light in her room, but not that he sat on the bed or moved the covers.
She was asked about her evidence at the committal as to the 2010 events and what she told her parents. She agreed that she then said she had been questioned by her mother as to whether he had touched her, and said he had not.
At the committal she had been asked about the mother’s questioning as at the 2010 occasion. The next day she had been asked if he touched her that time, and she said she told her mother that he had not. She was then asked if she had “deliberately decided” not to mention the 2009 occasion, and she had said yes. She agreed that that answer was the truth, she had not told them about the 2009 occasion. She then explained why:
(a)“I was 10. I still had no idea what was going on”;[15]
(b)“I wasn’t sure of what had happened, and I didn’t – I was scared to tell them. I didn’t know what – didn’t know what to say”;[16]
(c)“I don’t remember my exact feelings, but I was scared. I remember I was scared”;[17]
(d)[answer at the committal]: “I was confused about the whole situation, and I didn’t feel comfortable. And, again, I don’t remember clearly what I was thinking, but I didn’t tell her because I wasn’t sure what was going on”;[18] and
(e)she explained why she had not said she felt scared at the committal: “Both [answers] are true. It’s just another emotion I was feeling, and I didn’t mention it.”
[15]AB 194 line 29.
[16]AB 196 line 5.
[17]AB 196 line 9.
[18]AB 196 line 31.
Part of why she did not tell her parents the first time was: “I went to go tell her. Like I said in my statement, I went to get up and go find my parents, but, again, I just – I don’t know what I was thinking at the time, but I didn’t – because they were both asleep, I just went back to bed.”[19]
[19]AB 197 line 15.
She was questioned about what she told FFC, and said she could not remember what she said or the details.[20]
[20]AB 200 lines 10-14; AB 204 lines 40-45.
She could not remember what she told another friend ZNC,[21] but agreed that she did not mention telling ZNC in her notes or to the police.[22] She explained why she did not tell ZNC about the penetration: “There’s no need to go into detail with that kind of information”.[23]
[21]AB 207.
[22]AB 208.
[23]AB 208 line 27.
She could not remember what she had told SFM, either exact words or details.[24] As to the text messages between them, when it was put to her that she knew it was important that their stories line up, she responded: “No, I – I did – I said to her to say whatever she remembered.”[25]
[24]AB 209 lines 1-34.
[25]AB 209 line 45.
In the course of the text conversation being put to her, and the part where SFM denied being told about penetration, she accepted that she had not told SFM that aspect.[26] In the texts, she told SFM to tell police that “I said he touched me”, because “that’s what she remembered”.[27]
[26]AB 213 lines 20-24; AB 221 line 6; AB 222 line 4.
[27]AB 214.
She denied the suggestion of schooling: “I kept telling her that she tells what she remembers. I was telling her what was the truth and what I was – what I remember, and I told her to tell her story. I don’t – aligning our stories doesn’t help anything.”[28]
[28]AB 219 line 17.
She explained why she did not tell the first psychologist she saw: “I didn’t feel comfortable. He was a guy. I didn’t really feel comfortable with that. And I couldn’t – I was 15, 16. I couldn’t do it to a stranger.”[29]
[29]AB 223 line 22.
She did tell the counsellor/therapist, but she could not recall what she said or the exact words.[30] She did not mention penetration to her but explained why: “It’s a very uncomfortable thing to talk to anyone about”.[31]
[30]AB 225-226.
[31]AB 226 line 35.
As a result of talking to the counsellor/therapist she told her mother. She had thought about doing so “many, many times”.[32]
[32]AB 226 line 43.
She told her mother that on the 2009 occasion the appellant touched her with his hands: “He didn’t rape me, but he put his hands in my pants”.[33] She did not use the word rape “Because it was my mum. I had to very much clarify what he’d done. Using that word is quite broad”,[34] but when her mother asked if he had put his fingers inside her, she responded “yes”.[35]
[33]AB 228 line 6.
[34]AB 228 line 23.
[35]AB 228 line 37.
The complainant denied all suggestions that the events had not occurred or that the appellant had never touched her as she said in evidence.
In re-examination the complainant maintained her account.
FFC’s evidence
FFC said she had a conversation with the complainant in 2015, when they were in grade 9. She could not remember the discussion. She gave a statement to police in 2017 in which she said what she could recall of what the complainant told her: “she just said that he touched her. I don’t … That was it.”[36]
[36]AB 251 line 20.
FFC’s evidence was that they spoke about whether to see the school counsellor, but neither of them wanted to do so. When asked if the complainant did not wish to do so, FFC was unsure.[37]
[37]AB 251 lines 28-35.
SFM’s evidence
SFM described what she had been told in relation to the first occasion in 2009:[38] “She said that she was at home one night. She was in bed, and one of her parent’s friends walked in, … he thought she was sleeping, but she wasn’t, but she pretended to be asleep because she didn’t know what to do. And he sat down on the bed, and he started feeling … over the top of the covers, and then he went under the covers, and started touching her. And she said that there was two different occasions … that this sort of thing happened to her.”
[38]AB 253 line 19.
As to the second occasion in 2010, she recalled:[39] “I remember vaguely it was something to do with a photo, and she said that he had took a photo of her sleeping, or something, and said that it calmed him down because he had insomnia, or something like that.”
[39]AB 253 line 28.
SFM added:[40] “I don’t think after that we really had a conversation about it until she brought up that she was reporting it to the police. And at that point, she told me that I would need to make a statement, and she – she told me that it was going to be a rape charge, and I didn’t understand how, if there was no penetration, because I didn’t realize there was penetration until she said to me there was.”
[40]AB 253 line 37.
SFM originally told police that she had been told about the first occasion in 2009: the appellant “… sat down right next to her on the bed, and was sort of moving hands, like, around her on top of the covers”, and “when he started, like, sort of moving his hands around her, she pretended that she was, like, waking up”.[41]
[41]AB 256.
She told police that she was told as to the 2010 occasion: “he came in and sort of did the same thing … her parents … saw a light … he told her parents that he had trouble sleeping … and it helped him to watch children sleep”.[42]
[42]AB 256.
SFM was not told that the complainant had been touched on her vagina, or that the appellant put his fingers into her vagina. At the time of the text messages she had no idea that the complainant was saying she had been touched on the vagina and in the vagina.[43]
[43]AB 263.
Counsellor/therapist
She was told by the complainant that she had been sexually abused by the appellant.[44]
[44]AB 266.
She took notes of what she had been told about the 2009 occasion:[45]
“A family friend had come to stay and she was sleeping in her bunk bed and this man was meant to be sleeping on the other bunk bed. She was on the top bunk and she woke to someone touching her between her legs and moving the blankets. This frightened her and she moved her legs and kept moving until he gave up and went back to sleep. … she did get up to go and tell her parents, but they were asleep and she decided to go back to her bed, feeling very scared and worried. She – when she awoke in the morning, she didn’t know what to do and she just tried to block it out. … she didn’t want to cause any upset, so she decided to try and keep it to herself what had happened.”
[45]AB 267.
Her notes of what she was told as to the 2010 occasion were:[46]
“ … he came to visit again and she promised herself she would stay awake all night, so it couldn’t happen again. However, she did fall asleep and, when she awoke, the same man was now sitting on her bed with his light on in his phone, which is what woke her up. She moved around, letting him know she was awake.”
[46]AB 267.
The complainant did not tell her that she was touched on her vagina, nor penetrated.[47]
[47]AB 274.
The complainant’s mother
At the time of the 2010 events the complainant told her that the appellant was on her bed and shining a light in her face.[48]
[48]AB 279.
The complainant’s father questioned the appellant about what he was doing in the complainant’s room. He kept changing explanations; one was that he was looking for sleeping pills, another that he liked watching children sleeping, as it calmed him.[49]
[49]AB 281.
In 2017 the complainant, speaking of the first occasion in 2009, told her that the appellant touched her with his hands. She asked where and the complainant indicated her groin. She asked if he put his fingers inside and the complainant said “yes”.[50]
[50]AB 299.
The mother said that on the morning after the appellant stayed over in 2009 she saw him asleep on the bottom bunk, in the complainant’s room. As it was early she decided not to wake either of them.
In her police statement, she said the complainant had pointed to her groin when explaining what occurred, and when she asked the complainant what he touched her with, the complainant said: “His hands. He didn’t rape me, but he put his hands in my pants”; then she asked if he put his fingers inside, and the answer was “yes”.[51]
[51]AB 307 line 3.
The complainant’s father
He said that the complainant’s account of the 2010 occasion was that the appellant was sitting on her bed with a light.[52]
[52]AB 321.
The appellant’s explanation was that he needed a sleeping tablet which was in his wallet, he could not find the wallet, and it soothed him to watch the complainant sleep.[53]
[53]AB 321.
In his statement to police the father said the complainant did not say the appellant was sitting on her bed, just in the room with a light, and the appellant said that he was using his phone to look at the complainant sleeping.[54]
[54]AB 333.
The appellant’s evidence
The appellant admitted sleeping over on the first occasion in the bottom bunk in the complainant’s room. On the second occasion in 2010, he was looking for his wallet when he may have momentarily entered the complainant’s room, being unfamiliar with the house. He denied that any of the alleged events occurred or that he had ever touched the complainant.
The defence case
The defence opening highlighted the way the complainant’s story had changed:
(a)“From 2009 when she made no complaint at all, in fact you’ll hear evidence that she engaged in polite conversation with him the next morning. To 2010 when she simply told her parents, depending on which view you accept, that she was awoken by a light in a room. Denied that she was touched at all on that occasion. To 2015, 2016 and 2017 in which her story changed dramatically from when she told [FFC] something to when she told [SFM] something to when she told [TFJ] … something that she herself accepts is not true about what happened in 2009, 2010.”[55]
(b)“… it’s particularly important to pay close attention to the way her story’s changed over the years”.[56]
[55]AB (Vol 1) 16-17.
[56]AB (Vol 1) 17.
The defence case that the complainant was a liar continued throughout the defence address, with the jury being urged, inter alia:
(a)“how could you possibly treat her as a witness of truth?”;[57]
(b)“It’s uncomfortable to talk of a young person telling lies or being a liar, yet that is what she has shown herself to be, not just about anything, but about the very subject matter of these proceedings”;[58]
(c)“So either way you look at it, she’s told lies. And these are only the lies we know about. Basic honesty isn’t something that you need a lot of practice to get right. You don’t need to do a university degree to learn how to be honest. It’s something that you either are or you are not. And these are only the lies we know about that what we see here is a pattern of being prepared to say whatever she needs to say and whatever she thinks she can get away with”;[59]
(d)“Unless you’re satisfied that she’s a truthful and reliable witness beyond reasonable doubt, you cannot convict [the appellant] on any count. It is as simple as that. The prosecution case depends upon her evidence, the evidence of a witness who admits lying and has been caught out lying about this very topic”;[60] and
(e)the complainant did not have a good enough memory to be a successful liar.[61]
[57]AB (Vol 1) 26 line 21.
[58]AB (Vol 1) 28 lines 7-9.
[59]AB (Vol 1) 34 lines 16-21.
[60]AB (Vol 1) 47 lines 11-14.
[61]AB (Vol 1) 51 lines 12-17.
On the appeal before this Court the appellant’s Senior Counsel did not seek that the Court give any consideration to the appellant’s evidence, nor did he make any submissions based upon it, as it was “clear that the jury rejected it”.[62]
[62]Appeal transcript T1-31 line 43.
Consideration
The appellant relied upon a number of matters to contend that the complainant’s evidence should have been rejected by the jury, or there is a significant possibility that an innocent person has been convicted:[63]
(a)the complainant’s admitted lies to TFJ about the charged acts;
(b)the complainant’s inconsistent words and conduct in the aftermath of the alleged incidents;
(c)the extended delay in her complaint;
(d)her reasons for the delay;
(e)the remarkable variances in the complainant’s accounts to the preliminary complaint witnesses; and
(f)the complainant’s texts to SFM after she had been interviewed by police.
[63]Paras 35-36.
Chronology
The relevant chronology starts in 2009 with Counts 1 and 2 which occurred on 31 January 2009.[64] The complainant’s evidence was that:
(a)she asked the appellant where her parents were, then went to find her mother and father but they were asleep;
(b)in the police interview she said “I wasn’t quite sure what to do so … I went back into my room and I went to sleep”;[65]
(c)at the trial she explained what she did: “I went to go tell her. Like I said in my statement, I went to get up and go find my parents, but, again, I just – I don’t know what I was thinking at the time, but I didn’t – because they were both asleep, I just went back to bed”;[66] and
(d)she then said nothing about what had happened until 2015 when she spoke to FFC; then she told SFM in 2016; then in 2017, she told TFJ, her counsellor/therapist, and then her mother.
[64]She was born on 2 February 2001. Counts 1 and 2 were on 31 January 2009. Count 3 was on 15 March 2010.
[65]AB 495.
[66]AB 197 lines 14-18.
Count 3 occurred when the complainant was just over nine years old. Her evidence as to what followed was:
(a)she went to her parents room;
(b)“I told them that he was in my room and he’d sat on the bed and I saw a light and stuff and they went out and talked to him and I couldn’t tell you what they said because … I had to stay in my room”;[67]
(c)in cross-examination she agreed that she told her parents that she had been woken by a light in her room, but not that he sat on the bed or moved the covers;
(d)according to her parents, she said the appellant was in her room and shining a light;
(e)there was an immediate confrontation between her father and the appellant, as a result of which the appellant was told to leave the house; and
(f)she agreed that she had been questioned by her mother as to whether the appellant had touched her in this incident, and she said he had not.
[67]AB 509.
At the committal she was asked if, at the time of the second occasion, she had “deliberately decided” not to mention the first occasion in 2009, and she had said yes. She agreed that that answer was the truth, i.e. she had not told them about the first occasion.[68] She explained why:
(a)“I was 10. I still had no idea what was going on”;[69]
(b)“I wasn’t sure of what had happened, and I didn’t – I was scared to tell them. I didn’t know what – didn’t know what to say”;[70]
(c)“I don’t remember my exact feelings, but I was scared. I remember I was scared”;[71]
(d)[answer at the committal]: “I was confused about the whole situation, and I didn’t feel comfortable. And, again, I don’t remember clearly what I was thinking, but I didn’t tell her because I wasn’t sure what was going on”;[72] and
(e)she explained why she had not said she felt scared at the committal: “Both [answers] are true. It’s just another emotion I was feeling, and I didn’t mention it.”[73]
[68]AB 194.
[69]AB 194 line 29.
[70]AB 196 line 5.
[71]AB 196 line 9.
[72]AB 197 line 1.
[73]AB 197 line 1.
Mother’s evidence about 15 March 2010
The complainant’s mother gave evidence as to what she asked the complainant after she was told that the appellant had been in the complainant’s room in 2010. The complainant told her that he was on her bed and shining a light in her face.[74] She asked the complainant whether she had been touched, but the questions related only to that occasion and not to the events in 2009:[75]
“Now, in fact, back on the night in 2010, you had questioned [the complainant] many times in the day or so after the incident to find out if [the appellant] had touched her in any way. Didn’t she?---We asked about that night in 2010.
All right. She had been adamant that he hadn’t touched her at all?---On that night he hadn’t.
Right. Are you seriously suggesting that you didn’t ask your daughter, “What about the only other time he slept over”?---I didn’t know that anything had happened. How can I ask a question about a night I didn’t know about.
All right. Are you seriously suggesting that, given that you found him asleep on the bottom bunk in her room on that previous occasion – the only other occasion he’d stayed over, you didn’t ask her, “What about the time at the other house”?---I don’t recall that I did, no.
You don’t recall whether you did or you didn’t?---No, I said I don’t recall asking her about that particular night.
Right?---I’m certain I would have asked, you know – I – I don’t recall that I asked about that night, because I had basically forgotten about that night. There were many, many nights that [the appellant] had been at our house before he moved to London, so …”
[74]AB 279.
[75]AB 307 lines 25-47; emphasis added.
The mother’s evidence on this aspect could hardly have been doubted by the jury, given that the complainant herself said she had not told her parents about what occurred in 2009, and that was not challenged. Indeed, the fact that she had not told them was at the centre of the defence case.
Preliminary complaint evidence
The preliminary complaint evidence as to what happened in 2009 came admittedly much later than the events in question. FFC was the first told anything, and that was in 2015, six years after the events. She could not recall much apart from the fact that the complainant had been “touched”.
SFM was told next. As to the 2009 events, she was told the appellant touched her but she did not realise that the complainant was saying she had been touched skin on skin, on the vagina and in the vagina. SFM told police that she had been told about the first occasion in 2009 that the complainant had been touched but over the covers: He “sat down right next to her on the bed, and was sort of moving his hands … around her on top of the covers”, and “when he started, like, sort of moving his hands around her, she pretended that she was … waking up”. In her text messages she recorded that she had been told “he touched you over the blankets”. But she went on to add that “you said more but it’s too hard to type it all”. In her text account she was told the appellant was trying to get his hand under the blankets. At the trial she said she was told “he started feeling … over the top of the covers, and then he went under the covers, and started touching her”.
The account given to TFJ was next in time, in early 2017. It included that the appellant had touched her including to penetrate her vagina.
The account to the counsellor/therapist in 2017 was that he had touched her between her legs.
Then the last account, to her mother, was that she had been touched by the appellant putting his hand in her pants, and she had been penetrated.
What was said to TFJ
TFJ told the complainant that his mother was a drug addict and he had been abused mentally and physically by his mother, and others, since he was six or seven years old. Further, that he had been repeatedly raped by his mother’s partner, and that he was psychologically harmed to the point of cutting himself.
She told him (as to Counts 1 and 2): the appellant would try and grab her and stroke her stomach; he touched her and “started to finger me”, and “violently grab me”; and he “continued to do it for as long as my parents didn’t know”.
She told him (as to Count 3): she “woke up with him taking the covers off my bed, so I sat up and he left”.
In her evidence in chief the complainant said that her account to TFJ was not completely accurate.[76]
[76]AB 170 lines 4-9.
It was put to her in cross-examination that she had lied to TFJ. She denied she had lied but did say that she “embellished the story” and “exaggerated” it.[77] She then agreed that she lied about certain details to TFJ: e.g. he grabbed her and stroked her stomach; she was scared by that; he violently grabbed her; he continued to do it for as long as her parents didn’t know.[78]
[77]AB 186 line 44; AB 187 line 45.
[78]AB 188 line 10; AB 189 line 14.
She offered an explanation as to why she said what she said to TFJ. Asked if she was trying to get sympathy from TFJ, she said: “Possibly. I was 16 and he had just told me that story. I guess I was trying to do the same – trying to make it …”.
The text messages with SFM
The appellant submitted that these text messages evidence an attempt by the complainant to coach or school SFM in what to say, contrary to her own memory. I disagree with that contention. The text exchanges were between two teenage girls, then good friends who texted each day. The complainant had just finished her police interview which, it can hardly be doubted, was an upsetting experience for her. Their conversation started with a dispute about whether the complainant had mentioned penetration before, SFM saying not, and the complainant being sure she had. Their different memories over that issue does not suggest coaching or an attempt to suborn a witness, but rather a frank exchange at a time when the complainant was exhausted from the day’s events.
The texts start at 5.53 pm on 11 September 2017. The opening conversation, between texts 589-606,[79] commences with the complainant saying that the police “are going to classify it as rape”, and that SFM and others will be interviewed. SFM responds “As rape? Why are they classifying it as that?” SFM was evidently not surprised by the contact or the subject matter, which compels the inference that there was a discussion between them prior to 589. Whether that was earlier that day, or before that day cannot be determined.
[79]In what follows I shall refer to the texts by their assigned number in the Appeal Book.
In 592, SFM responds “Penetration ?????”, and the complainant answers, “So it’s called rape by penetration idk[80] something like that but they are classifying the case as a rape case”. SFM then responded “… but there wasn’t any penetration ??” In context SFM was asking the question, was there penetration, rather than stating the fact that there was not.
[80]The letters “idk” mean “I don’t know”.
The message in 597, “Dude you never said that. Not once. Ever.”, drew the complainant’s response as to what happened (the defendant “fingered me”), and her discomfort at discussing the topic, “I hate talking about this. It makes me so uncomfortable”, and her response “But I’m sure I said that”: 602.
When SFM affirmed her memory that it had not been said, the complainant responded, “Oh okay well idk why I didn’t say it but I think it’s cause I didn’t maybe want to say it so I just said he touched me”: 606. The complainant thereby conceded to her friend that she may not have said there was penetration, even though that happened.
It is at this point that SFM takes the conversation into new territory by asking, “Yeah okay but what do I say to them”: 607. Plainly SFM was asking what she was to say to the police. It was not the complainant who raised that topic. The following texts, 609-612, show that the complainant told SFM that she should tell the police “What I told you”, “Yeah tell them that I said he touched me”. The complainant here was not suggesting that SFM alter her recollection at all, but that she tell the police exactly what she recalled being told.
The balance of that day’s texts, 613-624, finishing at 10.09 pm, reveal exchanges about what was said originally, SFM saying that it was that the complainant had been “touched … over the blankets”, and the complainant disagreeing that she would have said that.
The text conversation resumed the following day at 7.45 am with SFM asking the complainant if she was okay: 628. The complainant said “Yeah just worried. What you remember could throw my entire case because it’s wrong”: 629 and 630. They resumed the debate about what the complainant had originally told SFM. The complainant said that she “would have never ever said over the blankets”, in 633, and SFM maintained that she did, in 634, and “You said more but it’s too hard to type it all”, in 635.
The complainant then said in 636-639:
“Because I wouldn’t lie to you. I understand if I didn’t tell you in every detail or tell you about penetration because that’s embarrassing and I didn’t even tell [FFC] … But I would never say over the sheets because I know that’s not true and would never say that ... I don’t know if you should do a statement if you have a different story … People won’t think I’m telling the truth”
SFM responded by saying that they needed to talk at morning tea. The complainant responded in 641:
“I don’t want to talk about it that’s the thing I just had to sit for two hours in front of a detective and tell them everything. I can’t do it again I’ll cry and I’m over talking about it. If you don’t remember whatever if you think I said over the sheets they say that I don’t care anymore he’s not gonna get charged whatever”
That the complainant was under stress is evident from that response, as it was to SFM, who said to the complainant “You sound like you’re literally pissed at me”: 642. The complainant responded: “I’m not sure don’t make this about you … I’m pissed that the stories aren’t lining up”: 643-644.
The complainant’s response does indicate that she was worried because of the differing recollections, but the tenor of the exchange does not suggest an attempt to suborn a witness by getting them to change the story. SFM’s next two responses put such a suggestion to rest: “Okay that’s not my fault tho. You need to stop taking it out on me”, in 645, and she immediately reiterated her version of what the complainant had told her: 646.
In response the complainant reiterated her version, in 648-650, pointing out that the two incidents had been combined in SFM’s response, and that on the first occasion the defendant had “touched me completely”. She pointed out that she had not told her parents about the first occasion until “like a month ago on that Friday”, and “That’s why I was so upset and why when I told you you were saying I had to tell my mum but I didn’t want to upset her”: 650.
The next exchange, in 651-652, is important in that it reveals there was no suggestion of an attempt to suborn SFM:
SFM:“Okay but I’m supposed to tell them what you told me not what happened. So I will tell them that but I will say that I didn’t realise until very recently that when you said ‘touched’ the first time you meant penetration”
Comp:“Yeah tell them the truth because otherwise I’m fucked but yeah tell them what you remember me saying”.
In the exchange that followed SFM again set out her version of what she had been told, in 658 and 668, unwavering in the account. The exchanges ended with the complainant again telling SFM that she should tell the police what she (SFM) remembered “because u cant lie”: 669 and 673. She also added:
“Yeah well I explained everything on that Friday night over the phone bout my telling my parents and stuff and I said in detail because I knew you’d need to tell someone idk how it got lost in translation”: 676; and
“I understand if I didn’t tell you the penetration part but everything else I dont understand how it got messed up”: 677.
In my view, the jury were entitled to see the text exchanges for what they were, a tense conversation between teenage friends about a matter deeply embarrassing to the complainant, who was under a great deal of stress as a result of telling her parents and upsetting them, and then undergoing the ordeal of a police interview in which she had to disclose details that were embarrassing to her, rather than an attempt to convince SFM that she should change her account. The complainant was, no doubt, scared and fearful of the events that had occurred, and took out her stress on her friend, but that does not mean she should be seen as having attempted to suborn SFM. I do not consider that the jury were compelled to form the view from the text exchanges that the complainant’s credibility was so damaged that her evidence had to be rejected.
The earliest preliminary complaint came about six years after the events in 2009. No notes were made except by the counsellor/therapist in 2017, and the only recording of any version by the complainant came in 2017, by the Facebook entries between the complainant and TFJ, and the text messages between the complainant and SFM. The jury had to assess the veracity of the preliminary complaint witnesses. Given the time that had elapsed between the events and what they were told, and between when they were told and when they had to recall that discussion, the jury were not compelled to regard either FFC or SFM as giving a reliable or complete account.
Further, given the exchange between the complainant and SFM in the texts, it was open to the jury to conclude that there was likely a misunderstanding on SFM’s part, or that the complainant intended to convey penetrative touching, but did not.
It is true to say that there were differences between the accounts from the preliminary complaint witnesses. But there were consistent elements, namely that the complainant had been touched by the appellant’s hand or hands, while she was in bed. The mode of touching was inconsistently given, but the jury might have considered that to reflect the complainant’s reluctance to reveal deeply personal and embarrassing matters even to friends, or differing recollections, rather than revealing any critical lack of reliability in the complainant. As the complainant said to SFM in her texts, “I hate talking about this. It makes me so uncomfortable”, and she may not have mentioned the fact of penetration because “I didn’t maybe want to say it so I just said he touched me”. If the jury accepted that evidence as accurately reflecting how she felt when she was 16 and a half years old, and speaking to a best friend, they could reason that her reluctance to give details would likely have been more acute at earlier times when she was younger.
I am not persuaded that the inconsistencies in the preliminary complaint evidence were such that the jury could not have accepted the complainant’s evidence as credible and reliable.
The appellant’s central contention at the trial was that the complainant was not an honest witness, and that her evidence should be rejected on that basis rather than on issues of reliability. That contention was maintained before this Court on the appeal, it being submitted that the complainant’s credibility was irretrievably damaged because her complaint history was “chequered with inconsistencies”. It is therefore necessary to turn to the inconsistencies upon which the appeal relied.
The first was that the complainant had denied that she had been touched by the appellant when she first spoke to her parents on 15 March 2010, after the events which constituted Count 3.
As outlined above, when the complainant went to her parents on 15 March 2010 it was to tell them that she had been woken by the appellant shining a light in her room. Whilst her account to the police referred to him sitting on the bed and moving the sheets, at no time did she say to the police that he had touched her. In cross-examination at the trial she agreed that she had told her parents she had been woken by a light, but not that the appellant had sat on the bed or moved the covers.
The contended inconsistency comes from the fact that on 15 March 2010, and the next morning when her mother questioned her, the complainant did not reveal the events that happened in 2009. In other words, when being questioned about whether she had been touched on the evening of 15 March 2010, she did not reveal that she had been touched in January 2009.
A proper understanding of the evidence given by the complainant and her mother reveals that questioning about touching in 2010 was confined to whether the appellant had touched her on 15 March 2010. The questions did not extend to any other time. There is, therefore, no inconsistency in the complainant’s evidence. What is left is a contention that the complainant should have spoken up and revealed the events of 2009, and her failure to do so somehow suggests that she has been dishonest in her account.
That contention should, in my respectful view, be rejected. The complainant explained why she had not told them about the events of 2009. Her explanation included that she was young, had no idea what was going on, was not sure of what had happened, was scared to tell her parents and did not know what to say, was confused about the whole situation and uncomfortable in revealing it. Given that she was only eight years old at the time of the events in 2009, and nine years old at the time of the events in 2010, the jury were entitled to conclude that the complainant would not necessarily react as an adult might, or even an older person might. Her account of confusion, uncertainty, fear and embarrassment was not inherently incredible, or unreasonable. The jury could well conclude that is exactly the sort of reaction one might expect from a very young girl confronted by a situation she did not understand.
Part of this contention also centred on a question and answer in cross-examination, to the effect that the complainant had “deliberately decided” not to disclose the events of 2009. The passages concerning that question and answer are set out above: see paragraph [75].
It is not obvious, in my respectful view, that the complainant’s answer was necessarily an acceptance of a deliberate decision. When first asked,[81] the question had a number of components including the events that happened a year earlier, she had woken up with the appellant in her room, and had not told her parents. The latter was coupled with “deliberately decided not to”. Added to that is the fact that within one or two questions later, it was evident that the complainant needed a break. When the trial resumed the topic was whether she had not told her parents because she was scared.[82]
[81]AB 194 lines 25-27.
[82]AB 196 lines 1-23.
In that context she was reminded of a question asked at the committal which involved the phrase “deliberately decided not to mention”. She was also reminded about her answer: “I was confused about the whole situation, and I didn’t feel comfortable. And, again, I don’t remember clearly what I was thinking, but I didn’t tell her because I wasn’t sure what was going on.”[83] Once the answer is seen in context it becomes apparent, in my respectful view, that the complainant was not necessarily adopting the description that she had made a deliberate decision. In fact, she said she did not remember clearly what she was thinking at the time but remembers being confused, uncomfortable and scared. Her responses do not suggest that she, in fact, made a conscious or deliberate decision not to reveal the 2009 events.
[83]AB 196 lines 33-35.
The same conclusion should be drawn about another aspect of the evidence upon which the appellant relies in this respect. That is, that the mother’s evidence was to the effect that on 15 March 2010 the complainant was “adamant” that the applicant had not touched her.[84] That word was used in the question:[85] “She had been adamant that he hadn’t touched her at all?” The answer was “On that night he hadn’t”. Seen in context the answer did not necessarily adopt the adjective “adamant”. Even if it did, it adds nothing. The complainant did not say that she had been touched on 15 March 2010, and did not tell her parents that she had.
[84]Appellant’s outline para 20.
[85]AB 307 line 29.
The second inconsistency was said to be “prior inconsistent statements to her mother in 2011/2012”.[86] This concerned a short piece of evidence that in 2011 or 2012 the complainant and her mother were in a car when the complainant thought she saw the appellant. The complainant’s evidence is as follows:[87]
“Do you remember in around about 2011 or 2012, before you went to the Philippines, you were out and about in the car, and you thought you saw [the appellant]?---I don’t remember that.
Do you remember saying to your mum, “That’s [the appellant], the man who came into my room. He looked at me”?---I – I was told that I did later on, but I don’t remember.
All right. Do you accept that you said that to your mum?---I guess so.”
[86]Appellant’s outline para 16(b).
[87]AB 198 lines 19-26.
The mother’s evidence as to this incident was equally uncertain:[88]
“Do you remember at that time, [the complainant] thought she saw [the appellant] in a car down at Redland Bay Road at Capalaba?---Sometime before we moved to the Philippines, you mean.
Yes?---Yeah.
You thought it was maybe in 2011?---Yeah.
And do you remember [the complainant] said:
That’s [the appellant] in that car. You know [the appellant]. The man who came into my room. He looked at me.
Correct?---Something like that, yes.”
[88]AB 309 lines 9-22.
The contents of SFM’s evidence given on 6 August 2019 does not accord with that which is contained in the text messages above on 11 to 12 September 2017. In my view, it is reasonable to accord more weight to the contents of the fresh complaint evidence of the complainant said to have occurred in late 2015 or early 2016 in accordance with the SMS messages of 11 September 2017 rather than SFM’s evidence on 6 August 2019. That is consistent with a complaint of touching over the blankets with no penetration. The evidence of the fresh complaint is inconsistent with the complainant’s allegations with respect to digital penetration the subject of count 2. The complaint was of no penetration but rather the moving of the hands over the top of the blankets whilst the appellant was sitting down on the bed.[230] It is also inconsistent with count 1.
[230]As per text messages at [232].
Fifth Alleged Inconsistency – Lack of complaint to psychologist Barton in 2016
In June and August 2016, the complainant consulted a psychologist, Lincoln Barton, of Headspace on three separate occasions. The complainant was then aged 15 to 16 years. The complainant admitted that she did not tell Mr Barton about any issues relating to sexual abuse because “I didn’t feel comfortable. He was a guy. I didn’t really feel comfortable with that.”[231]
[231]AB2 223/22-23.
The opportunity to tell the psychologist Barton of sexual abuse arose, however, it is unsurprising that the complainant did not volunteer the sexual abuse. Perhaps the only relevant evidence from the psychological sessions in 2016 is the complainant admitted that she could talk to her mother about most things.[232]
[232]AB2 222/44-45.
Sixth Alleged Inconsistency – Facebook complaint to TFJ in early 2017
In early 2017 when the complainant was aged 16 years and approximately 6-7 months before her police complaint, the complainant made disclosures concerning the appellant via Facebook which is recorded in Exhibit 6.[233]
[233]Exhibit 6, AB2 464.
TFJ, a male friend of the complainant, sent a Facebook message to the complainant telling her that when he was a boy an older man had raped him for three years.[234] The complainant responded to TFJ’s Facebook message by stating that she also had been raped as a child.
[234]Exhibit 6, AB2 464.
In Exhibit 6, the complainant said that when she was 10 an old family friend would try and grab me and stroke my stomach and later when she was asleep the appellant started touching her, started to finger her, and violently grabbed her. The complainant said of that conduct:[235]
“He continued to do it for as long as my parents didn’t know. He tried again when I was 11 or so and came to stay again. I actually promised myself to stay awake the entire night and not do anything. but [sic] I fell asleep and woke up with him taking the covers off my bed, so I sat up and he left. I told mum and dad about him in my room and they called the cops but I never mentioned that he raped me a year ago.”
[235]Exhibit 6, AB2 464.
Exhibit 6 contains inaccuracies that the first occasion of abuse was at age 10 and the second at age 11 which are perhaps understandable. Exhibit 6 also contains deliberate lies, namely, the allegation that the appellant stroked the complainant’s stomach on a regular basis, and that when the digital penetration occurred, it occurred after the appellant had violently grabbed the complainant. The complainant lied that the appellant “continued to do it for as long as my parents didn’t know.” When cross examined on her Facebook allegations the complainant said “I didn’t lie”. The complainant then admitted she “exaggerated the story” and later agreed the statement contained a number of lies.[236] It is important to note that the Facebook message of January 2017 was the first time the complainant alleged she had been digitally raped.
[236]AB2 188/22 & 31; AB2 189/39; AB2 190/3.
Seventh Alleged Inconsistency – Statements to Ms Crawford in August 2017
In August 2017, the complainant, at the suggestion of her mother, commenced counselling with, Ms Crawford. The complainant accepted that Ms Crawford had persistently questioned her about a “memory of being sexually abused”. Despite this persistent questioning, the complainant did not tell Ms Crawford that the complainant had been touched on or in her vagina[237] but rather disclosed two instances involving “touching her between the legs and moving the blankets” on the first occasion, and two years later “sitting on her bed with the light on in his phone”.[238]
[237]AB2 274.
[238]AB2 266 – 267.
Later that evening after the consultation with Ms Crawford, the complainant was again questioned by her mother who directly asked the complainant “what did he touch you with?” to which the complainant answered “His hands. He didn’t rape me, but he put his hands in my pants”.[239]
[239]AB2 228 – 229.
Another concern is the lack of consistency in recall of important matters between the committal on 13 February 2019 and at trial on 5 August 2019, such as the content of the conversations on 15 March 2010.[240]
[240]AB2 192/28.
Conclusion on stage 1
Inevitably the inconsistencies damaged the complainant’s credibility. This is made plain by the jury’s acquittal of rape. By their acquittal, the jury must be taken to have rejected the complainant’s evidence that the appellant had digitally raped the complainant on the evening of 31 January 2009. The jury could only have come to this conclusion if the jury did not accept the complainant as a credible witness in respect of the allegation of rape. The jury were right to reject the complainant’s evidence to the requisite standard of beyond a reasonable doubt.
Having rejected the complainant’s evidence on the rape allegation, which plainly is based upon a rejection of the evidence of the complainant as being credible, the question arises whether it was logical for the jury to be satisfied beyond reasonable doubt of count 1, the indecent treatment, the alternative indecent treatment, the subject of count 2, and the attempted indecent treatment charge, the subject of count 3. This is particularly so in respect of counts 1 and 2 which were said to have occurred within moments of each other. In Pell v The Queen, with reference to Jones v The Queen,[241]Weinberg JA said:[242]
“If, as I think, it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant regarding the second incident, that is a factor that would, ordinarily, be expected to impact significantly upon the complainant’s credibility overall. In other words, a doubt about that matter would ordinarily cast real doubt upon the complainant’s credibility and reliability in relation to the first incident as well.”
[241](1997) 191 CLR 439.
[242]Pell v The Queen [2019] VSCA 186 at [1097].
The jury having rejected the complainant’s evidence of rape by digital penetration ought ordinarily have had a “real doubt upon the complainant’s creditability and reliability”. Sadly, there is nothing inherently improbable about a young female being the subject of sexual abuse. There is also nothing improbable about a child being somewhat inconsistent in the child’s evidence. However, where there are sufficiently serious and weighty inconsistencies a reasonable doubt may exist. In any case, it is a matter of degree as to when the level of inconsistency raises a reasonable doubt.
In the present case, it has been demonstrated on “the record itself” that there are several serious inconsistencies (inconsistencies 1, 2, 4, and 6 as detailed above), a tainting of evidence (by reference to the evidence of SFM in paragraph 51 above), a growth in the allegations of sexual assault over a period of time and an improvement in memory from denial and uncertainty in 2010 to certainty in 2017. Even ignoring the evidence of the appellant, Mr Pink and Mr Harris, the combination of the above factors compels a conclusion that the complainant’s evidence on all three counts lacks sufficient credibility, so that a reasonable doubt must logically be held by an objective observer.
Additionally, the appellant was subjected to an assertive, emotive, and lengthy pretext telephone call from the complainant’s mother on 17 September 2017[243] where he gave his version of what had occurred on 31 January 2019 and 15 March 2010. That version is fundamentally consistent with the appellant’s evidence[244] but more importantly it was fundamentally consistent with the complainant’s original (15 and 16 March 2010) versions as provided to her mother on numerous times[245] and to her father at least once that the appellant never “touched her”. The appellant was subject to a careful and thorough cross-examination, which was appropriate to a case of this type, yet his evidence remained consistent.
[243]AB2 480 – 490.
[244]AB2 339-349.
[245]AB2 197/30-35.
A careful review of the whole of the evidence in the present case leads me to conclude that the first stage of the M v The Queen test has been satisfied. In other words, I harbour a doubt as to guilt and therefore consider in terms of stage one that the jury ought to have harboured a doubt as to guilt.
Stage 2 – consideration of jury advantage
The second stage of the test is to ask whether that doubt persists, notwithstanding the advantages a jury possess over an appellant court. In the past it was suggested that the “demeanour” of a witness would reveal whether the witness was truthful or not. If that were so, a juror who observed a witness’s demeanour would have an unassailable advantage over an appellant court in assessing credit. Nowadays, evidence is routinely recorded in video or audio visual medium. In the present case, the complainant’s principal evidence was recorded by audio-visual means and the audio of her cross-examination was recorded.
This court was not asked to view the s 93A video evidence or listen to it, or the audio of the evidence at trial. That is understandable as a witnesses’ demeanour is not an infallible indicator of truth.[246]
[246]Pell v The Queen [2019] VSCA 186 [917]-[924].
With respect to the second stage of the test, the present case differs from many insofar as the jury have, by their rejection of the digital penetration rape allegation implicitly rejected the complainant’s evidence in respect of that count. Conversely by their guilty verdicts on the alternative count 2, and counts 1 and 3, the jury must be taken to have accepted the complainant’s evidence with respect to those counts as being credible. Whilst it is true that any tribunal of fact may reject a portion of a witness’s evidence and accept a portion of that witness’s evidence, there ought to be a discernible logical basis by which to do so.
In the present case, the inconsistencies as detailed above, moving from a reported denial of any allegation of any type of touching on 15 and 16 March 2010, graduating to an allegation of “looking at me”, graduating to a version of “touching me”, graduating to a version of “digitally penetrating” me coupled with the attempt by the complainant to coach the witness SFM, cannot be overcome by reference to the complainant’s video recorded evidence as contained in the s 93A statement, nor the transcript of the complainant’s cross-examination.
This is particularly so when the cross-examination of the complainant contains numerous responses to questions as “I don’t remember” and “I don’t know” being a common response throughout the entirety of the complainant’s cross-examination from AB2 183 to 226. The cross-examination was not lengthy. The complainant was cross-examined for only 36 minutes on the first day of trial and for only 54 minutes on day two. It was not suggested, on appeal that the viewing of the video evidence or hearing the evidence of the complainant would assist in explaining why the jury could logically reject the complainant’s principal allegation of rape and accept the balance of her allegations in the face of identified inconsistencies.[247]
[247]SKA v The Queen (2011) 243 CLR 400 [411] per French CJ, Gummow and Kiefel JJ and Pate (a Pseudonym) v The Queen [2019] VSCA 170 at [70] – [77] per Priest JA.
In the circumstances I conclude that even making full allowance for the advantages enjoyed by the jury that reasonable doubt still persists.
Ground 1
For the reasons I have expressed, I consider that upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of counts 1, 2, and 3.
Ground 3
As I consider the appellant has succeeded in respect of ground 1, it is unnecessary to determine ground 3.[248]
[248]Jones v The Queen (1989) 166 CLR 409; see also R v Chai (2002) 76 ALJR 628.
Conclusion
I consider that the appeal ought to be allowed on ground 1, the convictions of the appellant ought to be quashed and a verdict of acquittal be entered on each count.
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