R v D

[1997] QCA 252

[1997] QCA 252

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 190 of 1997

Brisbane

[R. v. D]

THE QUEEN

v.

D

Appellant

Macrossan CJ

Williams J

Byrne J

Judgment delivered 19 August 1997

Joint reasons for judgment of the Chief Justice and Byrne J, separate reasons of Williams J, concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:     CRIMINAL LAW - Maintaining a sexual relationship with a child in care - Whether conviction unsafe.

Counsel:Mr M. Johnson for the appellant

Mr D. Bullock for the respondent

Solicitors:Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:             25 July 1997

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND BYRNE J

Judgment delivered 19 August 1997

At his trial in the Mackay District Court, the appellant was convicted of maintaining a sexual relationship with a girl under 12 years of age whilst under his care.  An appeal is brought against the conviction.  The sole ground pursued is that the conviction is unsafe.

As often happens where a family member stands charged with a sexual offence against a child, there was no fresh complaint, no corroboration, the complainant appeared to associate normally with the appellant after the episodes of sexual abuse alleged, and inconsistencies were apparent in the girl's various accounts.  For his part, the appellant, although he had cooperated with the police, made no admissions; and his defence was supported by his testimony which, so far as the transcript reveals its effect, was not shaken by cross-examination.  However, the jury was persuaded of guilt, and the question now is whether, on this Court's independent assessment of the evidence, that conclusion was open.

The girl was born in December 1986.  The offence is alleged to have occurred between 1 July 1995 and 1 August 1996 during a period when the appellant maintained a de facto relationship with the girl's mother.  The appellant and the mother first met years before.  The eldest of the mother's four children was the appellant's son.  His parents separated when the boy was three months old.  The mother married in 1988.  That relationship had come to an end by late 1994 when the appellant and the mother resumed their association.

In July 1995 the mother took her four children to live on a farm near Ayr.  The appellant visited them there.  When he stayed overnight, he slept in a bus with them.  Others occasionally came to the property.  Sometimes seven children spent the night in the bus.

In September 1995 the mother took her children to live with her mother.  From January 1996 until the middle of March that year, the mother and children returned to live in the bus, which was relocated to a caravan park at Mackay.  An amenities building at the park contained shower facilities mentioned by the girl as a place where the appellant molested her.  From May 1996 the mother and others, including the complainant, lived in a house at Yakapari.  The appellant lived there too.

Much of the girl's account was placed before the jury in the form of video-recorded interviews with investigators which took place in August 1996.  The video recordings were played in the child's presence.  She told the jury that what she had said in the interviews was the truth.  In them, she spoke of abuse at the farm, at the caravan park, and at the house at Yakapari.  She also testified to having been molested by the appellant at the farm when, after experiencing nightmares, she got into bed with the appellant and with her mother.  As she lay there, with her back to him, "he stuck his penis up my bottom".  She told the jury that she did not remember how often such an incident occurred at the farm.  She also testified to events in the amenities block at the caravan park while the evening meal was being prepared by the mother and the appellant was with the girl.  When it was her turn to shower, according to her evidence, he undressed and got into the shower with her.  "He used to tell me to bend over".  Then he would put his hands on her back and "push his penis in" "my bottom", she testified.

The child agreed that she had a good relationship with the appellant.  Asked whether it had ever occurred to her that she should not get into bed with the appellant if she risked interference, she replied that she sometimes reacted in that way, but at other times she became "real frightened" by the nightmares and "couldn't handle" not getting into the bed with the two adults.  The cross-examination explored the girl's account of particular incidents.  She maintained that the appellant molested her "more than once" at the farm and at the caravan park.  An incident occurred at Yakapari once, she said.  Pressed with the different statement in one of the interviews that the appellant had "only done it once in the bathroom at the caravan park", the girl said that she "must have mucked up" that particular statement and, more generally, that through the course of the interviews she kept "remembering and remembering" more.  In cross-examination, she said that the appellant had also penetrated her anus digitally.

The police began an investigation in early August 1996.  By this time, the mother had not detected any change in the girl's attitude towards the appellant, which, she accepted, had always been "very good".  The cross-examination by defence counsel also elicited from the mother the circumstances leading to the investigation.  The girl's grandmother had written to the girl's godmother expressing concern.  When the godmother mentioned to the mother a suspicion that the child was being interfered with, the mother asked a family friend, Mrs A, to broach the matter with the girl.  Mrs A spoke to her on 29 July 1996.  She asked her if the appellant had been touching her; the girl replied yes.  She then told the girl that she was not allowed to tell any lies.  The girl insisted that she was telling the truth.  Mrs A asked where the appellant had touched her.  The girl pointed between her legs, identifying "my bottom".  Mrs A asked her what the appellant had touched her with, to be told "his fingers"."Anything else?", Mrs A asked.  The girl said, "yeah, the other thing".  Mrs A asked, "you mean his penis"; the girl responded affirmatively.  The girl also said that the interference had happened once in shower blocks at the caravan park and sometimes in a bed.

The mother testified to her conversation with the girl after Mrs A had recounted the allegations made to her.  Cross-examination elicited that the girl told her mother that the appellant "stuck his doodle up my bum".  Soon afterwards, the child was medically examined.  Mrs A waited with the appellant while the examination was conducted.  The appellant told her that if the medical examination disclosed that the girl had been touched, that "maybe W" - the appellant's 13 year old son - "might have done it".  No suggestion was made at the trial to implicate the boy.

A general practitioner examined the girl on 6 August 1996.  His findings were "normal".  He was asked whether his examination could have been expected to yield something unusual if there had been penile penetration of the anus of the nature and with the frequency alleged.  He thought that the absence of abnormality was not inconsistent with the allegations.

The contention that it was not open to the jury to be satisfied of guilt concentrates attention on inconsistencies in the things the girl has said and on suggested improbabilities.

There were inconsistencies.  Mrs A was told of only one incident in the shower block at the caravan park.  The jury was told that there were at least two.  When the girl first spoke to the police of incidents in the amenities block, she mentioned having been molested once.  Particular reliance was placed upon a contention that the girl's evidence concerning digital penetration was inconsistent with an assertion in an interview that no digital penetration occurred.  The first two interviews contain no reference to digital penetration.  However, mention was made of such a practice in an interview on 22 August 1996 when the girl said that the appellant had digitally penetrated her.  She said that this had happened when she got into bed with him at the farm.

The significance to be attached to these and other inconsistencies fell to be assessed having regard, among other things, to the circumstances in which the prior statements were made.  There was evidence, for example, that the girl was crying and upset when Mrs A spoke to her.  Her distress, or a reluctance to discuss the appellant's conduct, may have affected her.  As to departures between her testimony and the earlier interviews, the girl said that her memory had improved as the interviews progressed, which is something the jury might not have found surprising given their content and context.  And the reference in the girl's cross-examination and re-examination to digital penetration was consistent with Mrs A’s testimony concerning the girl's initial response to her questioning.  In these circumstances, the delay in complaining to the police of digital penetration is not a telling point.

Several matters were suggested as unlikely aspects of her story: mainly that she was sodomised in a bed that her mother shared without the mother's detecting the activity; that molestation could occur in a bus occupied by several people; that the child would be interfered with in a shower block at a caravan park at times when others might suddenly have arrived; and that there might be difficulty in penetration of the girl's anus as she lay on her side with her legs together.  It was also pointed out that the child's attitude towards the appellant appeared not to change even though she described his conduct as having hurt her.  No doubt these points were made at the trial as matters properly to be taken into account.  But neither separately nor in combination with each other or other considerations did they require the jury to entertain a reasonable doubt about guilt.  To the extent the experience of the courts is any guide, illicit sexual activity seems not infrequently to be associated with risk-taking.  The acts were not anatomically unlikely.  And the jury was entitled to have regard to its accumulated experience of the behaviour of children in deciding whether to attach importance to the child's overt relationship with the appellant.

The jury had the distinct advantage of seeing and hearing the witnesses.  In evaluating the significance of the suggested difficulties, that advantage may well have been useful.  In particular, the girl's cross-examination afforded an opportunity to assess her explanations for her changing recollections.

The girl's accounts contained as much detail as might have been expected.  The inconsistencies were not in plain contradiction with the substance of her story of several acts of penetration, digital and penile.  Nor was what the jury heard from her in conflict with the medical or any other evidence, except that of the appellant.  It was not suggested that she had any reason or motive to make the allegations, let alone to pursue them through investigations and a trial.  And, on the whole of the evidence, it was open to the jury to convict.

The appeal should be dismissed.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 19th August 1997

I have had the advantage of reading the joint reasons for judgment of the Chief Justice and Byrne J, and therein they set out the relevant background facts.

As is now common in cases of this type counsel for the appellant relied heavily on the decision of the High Court in M v. The Queen (1994) 181 CLR 487. In particular the attention of the court was drawn to the observation in the judgment of the majority to the following effect at 494:

"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."

That statement does not mean that where there are inconsistencies in the complainant's evidence the appellate court must have such concern about the conviction as to set aside the jury verdict; that is particularly so where the complainant is a young child.  Here the girl was aged about nine when the relevant events occurred and about ten when she gave evidence.

Having read the evidence of the complainant girl I am not satisfied that there is anything about her evidence which causes me such disquiet as to conclude that the conviction is unsafe and unsatisfactory and should be set aside.

I agree with the joint reasons of the Chief Justice and Byrne J and with the order they propose.