R v D

[1994] QCA 355

IN THE COURT OF APPEAL [1994] QCA 355

SUPREME COURT OF QUEENSLAND

C.A. No. 166 of 1994

Brisbane
[R. v. D]

BETWEEN

T H E Q U E E N

v.

D

(Appellant)

Fitzgerald P.
McPherson J.A.

Ambrose J.

Judgment delivered 12/09/94

Separate reasons for judgment of each member of the Court. All agreeing as to the orders.

APPEAL AGAINST CONVICTION DISMISSED AND APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDSCRIMINAL LAW - INDECENT DEALING - Digital penetration and cunnilingus of 9 year old girl by 75 year old "step" grandfather - Complainant's evidence of bloodstained panties only given at re-trial - Whether 99% certain forensic evidence admissible - Whether conviction unsafe.

EVIDENCE - CORROBORATION - Whether bloodstain capable of corroborating complainant's evidence - Requirement that corroboration should implicate the accused discussed.

Counsel:	P. Gaffney for the appellant L. Clare for the respondent
Solicitors:	Peter Wallace & Co. for the appellant Director of Prosecutions for the respondent

Hearing Date: 5 August 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 12/09/94

The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson JA. and need not be repeated.

The principal bases for concern may be summarised as follows. The complainant was young when the incident which she alleged occurred, and when she gave her evidence at the trial at which the appellant was convicted. Subject to one matter, the complainant's testimony was the only evidence against the appellant. There were some inconsistencies in the accounts given by the complainant at different times, although, with one possible exception, these deficiencies in her evidence were comparatively unimportant and by no means sufficient to require a reasonable jury, acting reasonably, to have a reasonable doubt as to the reliability of her evidence with respect to the essential elements of offence as she described it. Leaving aside for the moment any possible misdirection by the trial judge, the only basis upon which it could be suggested that the verdict was unsafe and unsatisfactory concerns the complainant's evidence that the appellant's conduct caused bleeding in, or from, her vagina or some nearby part of her body.
The complainant had not mentioned bleeding in the interview
which she had with a woman police constable about 5 days after
the incident, to a doctor who examined her the day following
that interview, at an earlier trial when the jury had
deadlocked, or at the trial at which the appellant was
convicted until her re-examination, in an unresponsive answer to
a question which was not related to blood or bleeding. The
doctor found nothing abnormal in the course of his examination,
or anything that indicated that bleeding might have occurred,

although that might be accounted for simply by the passage of

time.

The complainant's evidence that bleeding occurred, provided the sole foundation for further evidence which was used as corroboration of the complainant's allegations against the appellant.

A pair of pants, the bottom half of bikini togs, were tendered in evidence. In order for that item of clothing to have any potential significance, it was necessary that, at the time of the offence which the complainant alleged, she not only had the pants on but was wearing them the wrong way round in the sense that one of the leg-holes was around her waist and one of her legs was through the waist-hole. The complainant gave an explanation of how and why that occurred, which is somewhat surprising since she found out how she was supposedly wearing the pants at the material time by reading a transcript of her interview with the police officer, which her mother had interrupted to say that the complainant "must have had them on crookedly ... she had the white part at the crutch ... . She put them on sideways."

The complainant's wearing of the pants in that unorthodox fashion provided the basis for the only evidence which was relied on to corroborate the complainant's allegations against the appellant. The complainant told the police officer that she had been wearing the pants at the material time and that she noticed a stain on them the following morning which had not been there the previous day. The pants were produced at the interview, and it was left to inference that they were then as they had been following the alleged assault. A scientist gave evidence that a stain on the pants in the area which would have been near the complainant's vagina if she had been wearing the pants as she described was almost certainly blood. This was said to confirm or support the complainant's assertion of bleeding on the night when she alleged the appellant had assaulted her.

In such circumstances, the reliability of the complainant's belated claim of bleeding is plainly of critical importance. That it was belated cannot, I think, be doubted or explained away by earlier references to a red mark. There is no suggestion that the complainant did not know the difference between bleeding and red mark, which would not have permitted the reception of the pants into evidence or the scientific evidence of a blood stain.

The trial judge directed the jury that, if they were satisfied that the stain was caused by blood, it was capable in law of corroborating the complainant's evidence that she had been indecently assaulted by the appellant; that is, that it was capable of confirming that (a) the complainant had been indecently assaulted in the manner which she described (b) by the appellant. Although the presence of blood on the pants could not be relevant to the identification of the appellant as the offender if an offence had been committed, that was of no practical significance in the context of the trial. The issue was whether the offence described by the complainant had been committed. If the jury accepted her evidence that she had been indecently assaulted as she described, there was no remaining basis for the acquittal of the appellant on the footing that there was a reasonable doubt as to whether he was the person involved. No redirection on the point was sought at the trial.

Cases like this are often troubling. While there is no apparent motive for the complainant to concoct a story, the behaviour attributed to the appellant is bizarre when regard is had to his age and his unblemished history, including war service and a good work record. In the end, I do not think that it can be concluded that the jury could not reasonably be satisfied beyond reasonable doubt of the appellant's guilt on the basis of the complainant's evidence, including her evidence of bleeding, which I am satisfied that the jury could reasonably accept.

I therefore agree that the appeal against conviction should

be dismissed.

I also agree that the application for leave to appeal against sentence should be refused, for the reasons given by McPherson JA.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Twelfth day of September 1994

This is an appeal by D against his conviction on a single
count of indecently dealing with J, a girl under the age of 12.
J was born on 11 January 1983, and so on 7 November 1992, which

is the date of the alleged offence, was about two months short

of her tenth birthday.
At that time she was living with her mother, her younger brother, and a younger sister at a house at Kallungur. Her mother was engaged to O, who is now her stepfather. The appellant is his father, who in a very broad sense may therefore be considered at the time to have been J's step grandfather.
November 7, 1992 was a Saturday. O had been working on a fence in the garden at the Kallungur house, and the appellant came over to help him. J's mother had a late shift at the airport that night, and O drove her there. They left the appellant to look after the children, who had been fed and put to bed by the time of their departure at about 8.15 or 8.30 p.m.
They returned home at 10.15 p.m. It was the first time the children had been left alone at night with the appellant, and the offence is alleged to have taken place during the absence of their mother and stepfather.

The appellant stayed on at the house until Monday afternoon. J said she was afraid he would overhear and she did not complain to her mother about what had happened until Tuesday. On Wednesday her mother made arrangements for her to be interviewed by a police officer. The interview, which was conducted by Constable Deborah Lansdowne in the presence of J's mother, took place on Thursday 12 November and was recorded. The tape recording was admitted in evidence at the trial and played to the jury. There is a transcript of it in the record.

J was examined on the following day (Friday, 13 November) by a doctor, who found nothing abnormal. The hymen was reported as being thick, and there were no tears or scars in it.

J's account of what had happened was that after her mother and stepfather left on Saturday night she had gone to the toilet and saw from the clock that it was 8.30 p.m. She went back to bed and was trying to go to sleep when the appellant came into her room. He knelt or he sat - at the trial she could not remember which - on the bed and leaned over her. She said he pulled her pants (ex.2) down to her knees and pulled her T-shirt up. She said he "poked his finger down on the crutch ... and then he started licking it". She struggled and kept turning over, but he "opened it right out, that it really hurt and stuck his finger". She knew to call that part of her body a vagina. When in the course of the interview she was asked how he had pulled it apart, she said "he went like that". That was what he licked. She felt pain when he pulled her vagina apart and she was crying.

After the appellant left the room she went to the toilet and checked the time again. It was 9.30 p.m. Her mother and stepfather came home soon afterwards. Her mother said good night to her. They were surprised to find she was still awake and also surprised that she got up early next morning. They both said it was uncharacteristic of her normal pattern not to go to sleep quickly, and she liked to sleep in late on Sundays.

J said she showered on the Saturday night, and that she showered again on the Sunday morning. When doing so she took off her pants and saw a mark on them. She then noticed she was "bleeding a little bit". There had been an earlier trial, which ended without a verdict being returned because the jury were unable to agree. J agreed with counsel that at the earlier trial she had not mentioned any bleeding, nor had she mentioned it to Constable Lansdowne during the taped interview, or to the doctor who examined her on the following day. On the other hand, she also agreed that at the earlier trial she had, as counsel put it to her, said that she had "a red mark around her private"; and she told Constable Lansdowne that when she took her pants off in the morning there was a stain, which was still there when she was interviewed, and which she said was not there before that (Saturday) night.

At the second trial a Mr Grice gave evidence for the prosecution. He is a scientist employed at the State Health Department. He examined the pants ex.2 and saw a stain in the upper left groin area, which he subjected to standard benzedrine testing. It gave an instantaneous reaction, which he said was "very suggestive of blood". In cross-examination he confirmed his evidence in chief, which was that he was 90 per cent confident that the stain was blood, but that he could not exclude the 1 per cent of other cases. He said it was conceivable it could be some other body fluid with very small traces of blood in it. The only thing that could have caused a false reaction was some peroxidase from a plant or other animal source, but that did not usually give such a clean reaction to the benzedrine test as he had seen in this instance. He said that as a scientist he remained 99 per cent sure it was blood even though there was not enough material in the stain to carry the testing further.

The first ground of appeal is that the evidence of Grice ought not to have been admitted because the witness was not 100 per cent certain that the stain on the pants was blood. However, Grice said he was 99 per cent confident of his opinion that it was blood, and at that level it becomes a matter not of admissibility but of weight, which it is for the jury to assess.

In the end, Mr Gafney of counsel for the appellant conceded

that this was so.

In addition, there was the location of the stain on the pants. Grice said it was in the area of the left upper groin. The pants ex. 2 are in fact a pair of bikini bottoms which her mother said she had given her some time before. They are blue with diagonal pink and white segments. J said she had put them on that Saturday night after her shower and had got them the wrong way round. That had happened, she said, because she had got shampoo in her eyes when showering and had had to use a washer to wipe it out. She was in a hurry because her brother needed to have a shower, and had not noticed that she had put the pants on the wrong way round. She denied having discussed the matter with anyone else, but explained she had later found out how she had been wearing the pants that night on reading a transcript of the interview with Constable Lansdowne.

The transcript contains a passage where someone intervenes to say that J "must have had them [the pants] on crookedly ... she had the white part at the crutch (inaudible) She put them on sideways". In the transcript the interviewer is described as "unidentified", but at the trial it was acknowledged to have been J's mother.

The fact that J's explanation of the location of the stain was prompted by her having read the transcript tends to weaken her evidence. That is so until ex.2 itself is examined. Inspection of the pants shows how easily they could be put on in the wrong way. It is only by locating the label at the back that one can be confident of the manner in which they are designed to be worn. No doubt the jury would have reached a conclusion about the matter after making their own inspection of ex.2. When the pants are put on "crookedly" or sideways", with the white part at the crutch, the stain, which Grice identified as blood, appears at the upper part of the crutch. That is the place where blood or fluid mixed with blood discharging from the girl's vagina would be expected to stain the pants.

Grice's evidence that the stain was or contained blood was not given at the previous abortive trial, which may help to explain why the first jury failed to agree. In the interview J said the stain had not been on the pants on Saturday night when she put them on, and in evidence she said that she noticed it on the following Sunday morning. She pointed it out to Constable Lansdowne in the course of the Thursday interview. In cross- examination she agreed that she had worn the pants before, whether in the course of that week or earlier that summer. Her mother said the washing tended to build up during the working week, which perhaps implies that the pants had been washed a week before the Saturday in question. There is nothing to show what happened to them in the intervening days between Sunday morning, when J noticed the stain, and the following Thursday when the stain was shown to Constable Lansdowne.

The appellant's second ground of appeal was that the trial judge was wrong in directing the jury that, if they accepted Grice's evidence that the stain was blood, it was capable of constituting corroboration of J's evidence of what the appellant had done to her. In R. v. Kilbourne [1973] A.C. 729, 741, which was referred to with approval in R. v. M (C.A. 121 of 1993) Lord Hailsham said that the word corroboration was not a technical term of art but a dictionary word bearing its ordinary meaning.

His Lordship went on to say that corroboration:

"... by itself means no more than evidence tending to confirm other evidence. In my opinion evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration."

In the present case J's evidence, reduced to essential components, asserted the following facts: (i) on Saturday; (ii) her vagina had been tampered with; (iii) by the appellant; and (iv) on Sunday; (v) she found bleeding from her vagina; and (vi) and a stain on her pants. Her evidence in the last two particulars tended to be confirmed by the opinion of Mr Grice that the stain was blood. His testimony to that effect is evidence independent of J's evidence and it related to a particular of her evidence that was material.

The presence of a bloodstain on the crutch of the pants was a material particular of J's evidence because it was more or less what might be expected if a young girl's vagina is dealt with in the forceful and painful manner she described. Of course, it does not of its own accord prove that some such dealing took place; but the function of corroboration is not itself to prove, but simply to confirm, a material fact about which testimony is given by the complainant. If it were able of its own force to prove the particular fact in question, the evidence of the complainant herself "would not be essential to the case, it would be merely confirmatory of other and independent testimony" : R. v. Baskerville [1916] 2 K.B. 658, 664.

The appellant argues, however, that the stain on the pants and Grice's evidence that it was blood did not satisfy what is said to be another requirement necessary for evidence to be corroborative, in that it did not "implicate" the appellant. The ordinary dictionary meaning of the word "implicate" is not to incriminate but to "involve". Speaking of the evidence put forward as corroborative in R. v. Baskerville [1916] 2 K.B. 658, 667, Lord Reading said it must be evidence "which confirms in some material particular, not only the evidence that a crime has been committed, but also that the prisoner committed it". The ruling to that effect in R. v. Baskerville has been accepted in many subsequent cases in Australia and it is now too late to question its authority. It must, however, be read in the light of the question which fell to be considered in that case, which was whether the testimony of an accomplice boy that the accused had sodomised him was corroborated by a letter from the accused to the boy that was capable of an innocent interpretation. In that case there was clear evidence that the boy had previously been sodomised; the question was whether the letter tended to confirm the boy's testimony that the accused was one who had done it. See R. v. Kerim [1988] 1 Qd.R. 426, 484-485.

The resemblance of the present case to R. v. Baskerville is only superficial. The bloodstain on J's pants tended to confirm her evidence that an indecent dealing had been perpetrated on her; it did not directly confirm that the appellant was the person who had done it. It could not have done so unless signs of her blood were also found on him or his clothing, which was not the case here. There, however, the similarity between the two cases ends. It was never an issue at the trial of the appellant here that, if J's vagina had in fact been dealt with, someone other than the appellant had done it either before or shortly after the Saturday night in question when she was wearing the pants (ex. 2) in question. It would be difficult to identify any potential perpetrator other than the appellant, who, so far as the evidence goes, was the only person who had an opportunity to commit the offence. Not surprisingly, it was never suggested to J's mother or to O that either of them might have indecently dealt with J. Nor was it suggested to J that she might have hurt herself so as to cause the bloodstain on her pants. The possibility that it might have proceeded from natural causes was never suggested to the complainant or to the jury. The suggestion would, in any event, miss the point the evidence was designed to make. The presence of the bloodstain on the crutch of the pants tended to confirm J's evidence that, after something had been done to her, she found a stain on her pants and blood in her vagina.

The trial judge gave the jury a conventional direction about the need for or the desirability of having corroborative evidence in a case of this kind. In explaining the meaning of corroboration he instructed them that:

"It really means confirmation. Corroboration or confirmation at law is evidence that does two things : firstly, it establishes the commission of an offence or tends to do so; and, secondly, it tends to implicate the accused as the person committing the offence."

He went on to explain that it must be evidence independent of the complainant, and that it was sufficient if it corroborated that person's evidence in some significant way. He then said that evidence about the stain found on the pants was capable in law of constituting corroboration, and it was for them to decide that it was "truly found on the panties and it was the complainant girl's blood".

It was perhaps unfortunate that in referring to the meaning of corroboration, the direction given to the jury specifically mentioned the requirement, secondly, that it must tend to implicate the accused as the person committing the offence. The bloodstain, if that is what it was, was at best capable of confirming the involvement of the accused only in an indirect manner. Strictly speaking, it tended to confirm only so much of J's evidence as went to show that an offence had been committed.

That would be enough if it alleviated to a sufficient extent the danger that the complainant's story was a fabrication. See R. v. M at 13-14, per Davies J.A. In the factual context of the case, the trial judge's reference to implicating the accused cannot realistically be supposed to have influenced the verdict.

The trial was conducted throughout on the footing that, if an indecent dealing had taken place, there was no one but the appellant who could have been responsible for it. In this connection it is noteworthy that no redirection was applied for on this aspect of the trial judge's direction as to corroboration. What was sought by counsel for the appellant at the trial was simply a strengthening of the statement to the jury that it "can be dangerous" to convict on the uncorroborated testimony of a complainant.

Apart from that and a submission about the absence of fresh complaint, the appellant's application for redirections was concerned to urge the judge to highlight the fact that J had not previously mentioned finding blood on her vagina on the Sunday morning. In particular, it was submitted that the judge should tell the jury that, having regard to the way in which the evidence about that matter had come out, they were entitled to infer that what J had said on that subject was "a recent concoction". It was submitted that the judge should remind the jury of the sequence of events at the trial, which was that there had been no reference to blood being noticed until re-examination, where it arose out of questions put to J in cross-examination about her having had a shower on the Sunday morning; and also that the blood had never previously been mentioned in the earlier trial, or to the police, or to the doctor who conducted the examination of the complainant.

His Honour declined to redirect along the lines sought. To counsel he said, "Well, you've gone through that all at great length, and I reminded them of what you said there. Why do you want me to go through all this?" It is apparent from this that the judge was declining to remind the jury yet again of something that had been a focus of attention in counsel's address. To adopt that attitude was well within the discretion of the trial judge, and on appeal no complaint has been made of his failure to redirect. The appellant was, however, permitted to amend his notice of appeal at the hearing to include the further ground that the verdict was unsafe and unsatisfactory. It is to this matter that we must now turn.

Some deficiencies in J's evidence have already been mentioned. In the interview she said that the appellant had knelt on her bed; at the trial she could not recall whether he had knelt or sat. There was the fact that no complaint was made to her mother immediately after the incident is alleged to have occurred. There was the further fact that, until she read the transcript before the trial, J seems not to have recalled that she had her pants on sideways. Each of these matters is, however, capable of rational explanation. None is such as to have fatally weakened the reliability of J's evidence.

The only matter for real concern is the late advent of the evidence about the bleeding she said she noticed on the Sunday morning. Bleeding as such had not been mentioned by her until she was being cross-examined in the current trial. However, she had pointed out the stain to Constable Lansdowne, and at the previous trial she had given evidence and had been cross-examined about seeing a red mark on or in her vagina. What she had previously said on that subject is not entirely clear because her exact words were not put to her in the course of the later trial; but in the appeal record counsel for the prosecution is recorded as quoting from the transcript of the earlier trial the following passage:

"You said earlier that you thought there was a red mark

inside you?" -- "Yes".

"When did you see that?" -- "When I was in the shower."
"Before 9.30?" -- "No, when I was in the shower that

morning."

"The next morning?" -- "Yes".
"Was it still hurting the next morning?" -- "Just a

little".

The jury may have thought that the presence of a red mark

indicated bleeding, or at least that J had reasoned that it did.
The distinction between "bleeding a little" and a red mark in a
vagina is not so obvious as to strike everyone as demonstrating
inconsistency or new invention. Minds may differ about the
difference between a red mark and bleeding, or its significance;
but, for that reason, it was a matter for the jury to determine
as an aspect of their function of assessing the credibility of
the complainant. The jury may well have been impressed by what
J said and the manner in which she gave her evidence. What she

said was not contradicted by the appellant, who did not testify

at the trial.

In the end, the case is not one in which there are any noticeable gaps in the testimony of the complainant, nor inconsistencies so glaring that the jury ought to have regarded what she said as unreliable. Unlike many other cases of this kind, there was no apparent motive to make a false allegation against the appellant. It was suggested to J in the course of cross-examination that she had tried to borrow money from the appellant on the Saturday, and again on the Monday before he left. After being pressed about the matter more than once, and denying it, her final response was, "I didn't ask D, no time, no date, no hour, for money". The jury may have thought her rejection of that quite unsubstantiated assertion to be impressive.

For these reasons the appeal against conviction cannot be sustained. As to sentence, a term of imprisonment for 2½ years was imposed, but with a recommendation for parole after 9 months. The tragedy of the case is heightened by the fact that the appellant is a 75 year old man with an unblemished history, a period of war service, and a good work record. The offence has

naturally affected relations between him and his son. These

matters are, however, properly allowed for in the recommendation for parole. Unlike the sentencing cases relied on by the appellant, this is not one in which the offender is entitled to any credit for having pleaded guilty at an early stage and spared the child the trauma of the trial, or in this instance two trials. It cannot be said that the head sentence imposed here was outside the range, or that it was excessive in the circumstances of this offence, the more so as it was committed at a time when the care of the complainant J had been entrusted to the appellant for only a short time at night during the temporary absence of her parents.

The appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - AMBROSE J.

Judgment Delivered: 12/09/1994
In this matter I have had the benefit of reading the draft reasons for judgment of McPherson JA which sufficiently state the facts relevant to this appeal and I adopt that statement.
The question in this case is whether the evidence of the complainant child that the appellant indecently dealt with her causing her to bleed in the vaginal area in such a way as to cause her pants to become stained with blood, was capable of being corroborated by the evidence of other persons who had seen the alleged stain and by the evidence of a government analyst who had tested the stain to find that it was consistent with being blood.
In considering this matter, the starting point is the definition of "uncorroborated testimony" in s.1 of the Criminal
Code, where it is provided:

"The term "uncorroborated testimony" means testimony which is not corroborated in some material particular by other evidence implicating the accused person."

By amendment to the Code in 1986 the law relating to the
evidence of accomplices was altered. As amended that section
provides:

"632. ACCOMPLICES. A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person."

In my view, it is helpful when considering whether evidence of a particular kind is capable of amounting to corroboration which implicates a person to have regard to authorities dealing with both s.1 where "uncorroborated testimony" is defined and s.632.

A recent decision of this Court on corroboration to which s.632 refers is R v. Bryce (1994) 1 QDR 77. In that case, the question was whether evidence that the appellant had access to a document which, upon the facts, had been copied fraudulently, was corroborative evidence of accomplices who gave evidence against the appellant when those accomplices also had opportunity by way of access to the document to make a fraudulent copy of it.

Both Macrossan CJ and Davies JA referred to the ratio of R v. Baskerville [1916] 2 KB 658, which, inter alia, requires of corroborative evidence that it tends to confirm, in some respect, other evidence that it was the accused rather than anybody else who committed the offence with which he is charged.

At p.81, Davies JA, having referred to the fact that other

persons besides the appellant in that case, had access to the
document in question observed:

"In my view evidence of the above kind does not implicate the appellant. To do so the evidence must tend to confirm the involvement of the appellant more than that of any other person; that is it must be capable of being regarded as more consistent with his guilt than with that of any other person. This does not require that the evidence be such that when it is considered together with the other evidence in the case the accused's guilt appears (or is capable of appearing) to be more probable than not. Rather, all that is necessary is that such evidence, when considered together with the other evidence, be capable of increasing the probability of the accused's guilt without equally increasing the probability of the guilt of another suspect. Where the accused is the only suspect, evidence which increases the probability of his involvement would ordinarily be of this kind. But whereas here there are several suspects, evidence which increases equally the probability of the involvement of each, remains relevantly neutral."

He continued at p.82:

"Nevertheless the statement in R v. Baskerville [1916] 2 KB 658 at 667, that to be corroborative evidence must confirm 'in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it' is consistent with the view that to be corroborative the evidence must confirm in some material particular that the prisoner rather than anyone else committed the crime."

His Honour also referred with approval to R v. O'Brien (1912)
VLR 133 where Madden CJ said at p.139:

"We think that implication of the prisoner ought to be by evidence of some direct kind which would show that he was more probably than any other person the man who did that which produced the physical effects on her which were there in fact and which have been produced in such a way as he described."

The rationale for warning a jury that it is unsafe in the absence of supporting independent evidence to act upon evidence given by a witness within a specified category of witnesses is that judicial experience shows that persons within that category have proved to be unreliable, because of a characteristic or motivation of people often to be found within that category, which may not be known to jurors from their ordinary experience of life.

In England the term "suspect evidence" is used to cover generally evidence from this category of witnesses whose evidence has in the past been found, or at least considered, to be unreliable.

The evidence as to the blood stains on the pants of the complainant may be described as "circumstantial" evidence even though the complainant gave direct evidence concerning how it came into existence. In this respect it cannot be contended that the complainant in any way purported to "corroborate her own evidence". I refer to R v. Berrill [1982] Qd R 508 at p.526 per McPherson J.

In R v. Kerin [1988] 1 Qd R 526 at p.447, Macrossan J (as he then was) observed with respect to evidence said to be corroborative of the complainant's version of events -

"The corroborative evidence may have a certain consistency with both versions, but it must be capable of being regarded as more consistent with guilt than with innocence and to be acted on by the jury as corroboration it must in the end be regarded by itself as supportive of a conclusion of guilt: R v. Berrill and R v. Stratford and McDonald. The evidence must not however be intractably neutral in its effect if it is to serve as corroboration ..."

In Kalazzich and Orrock (1989) 39 A Crim R 415, the Court of Criminal Appeal in New South Wales adopted and applied the principles set forth by the Full Court of Queensland in the various cases there cited (including Berrill and Kerin) dealing with the nature of corroborative evidence. Even though viewed in a vacuum or by itself, evidence argued to be corroborative may not necessarily support other evidence of guilt needing corroboration, it may well do so when considered in the context of the whole of the evidence, including that to be corroborated.

On the facts of this case:

(1)the complainant gave detailed evidence of the manner in which the applicant indecently dealt with her at a time when her mother and step father had left him in the house with their young children. No other adult was present in the house at that time.

(2)Part of the evidence given by the child was that as the result of the application of force by the appellant there was a flow of blood from her genital area which she observed when having a shower the following morning. She also gave evidence that she then noticed a blood stain on her pants which, upon the whole of the evidence, it seems, could have been left there when that part of the pants displaying the stain was brought into the general vicinity of her genital region.

(3)The complainant pointed out the stain to a police officer who was interviewing her some days after the alleged offence. As a result the police officer had the pants exhibiting the stain, thought to be blood, examined by the government medical officer who found that in all probability the stain was in fact a blood stain.
One of the significant facts to be considered upon the indecent dealing charge was whether the stain on the complainant's pants, which she said appeared on the morning after the offence had been committed, tended to support her version of events that by the force he applied to her vagina, the appellant caused her to bleed in that area. The evidence that she gave concerning this injury had to be considered in the context of medical evidence to the effect that her hymen had not been broken, and that upon medical examination several days after the time of the alleged offence a "red mark" in the vaginal area was visible.

In my view, evidence called to show that the stain

indicated by the complainant was -
(a)observed by other people to be on the pants of the child and
(b)had been tested by an analyst whose expert opinion was that

the stain was almost certainly a stain of blood,

clearly supported that aspect of the complainant's evidence as to events which occurred between her and the appellant on the night before she observed blood in her vaginal area.
The evidence as to the blood stained pants must be viewed in the context of the appellant being the only adult person in the house at the time of the alleged offence, and also in light of the fact that when the child's mother and step father arrived home after the offence was said to have been committed upon her, the child appeared to her parents to be unusually active and wide awake, whereas normally she quickly went to sleep and stayed asleep when she retired for the night.
In my view, considered against the background of the other evidence to which I have referred, the evidence concerning the blood stain and its location given by the complainant is a significant segment of her version of events relevant to the guilt of the appellant and evidence of others tending to support it in a material particular tends to confirm the reliability of her evidence, at least to the extent that she said she bled from the vaginal region sufficiently to leave blood stains on her pants as a consequence of the appellant's dealing with her. Her pants showing the stain were tendered as part of the Crown case.

I agree that the appeal against conviction should be dismissed and also for the reasons given by McPherson JA, that the application for leave to appeal against sentence should be refused.