R v D
[2004] QCA 73
•19 March 2004
SUPREME COURT OF QUEENSLAND
CITATION:
R v D [2004] QCA 73
PARTIES:
R
v
D(appellant)
FILE NO/S:
CA No 284 of 2003
DC No 229 of 2003
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
19 March 2004
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2004
JUDGES:
Williams JA and White and McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Appeal dismissed
2. Application for leave to appeal against sentence dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of 5 counts of indecent dealing and 1 count of attempted rape – where conviction of every count was dependent on convictions on others counts – where the complainant did not complain for 20 months – where it was alleged that it was too risky for the appellant to engage in the conduct – where a number of alleged inconsistencies exist between accounts given by complainant – whether it was open to the jury to be satisfied that the appellant was guilty beyond reasonable doubt
COUNSEL:
A J Kimmins for the appellant
M J Copley for the respondent
SOLICITORS:
Bushnells for the appellant
Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: I have had the advantage of reading the reasons for judgment of McMurdo J wherein the relevant facts and issues raised on appeal have been comprehensively set out. I agree with all that he has said and only wish to add some brief observations.
The only evidence at the trial came from the complainant, the complainant’s mother, an examining doctor, and a police officer through whom the complainant’s initial statement to police was tendered. The complainant was subjected to a lengthy detailed cross-examination and the jury would have had ample opportunity of evaluating her evidence. There was nothing in the evidence before the jury which directly controverted anything that the complainant said.
Having perused the evidence I am satisfied that the decision of the jury was reasonably open on the evidence and the appellant’s contention that the verdicts were unreasonable and could not be supported by the evidence must be rejected. I agree with the orders proposed.
WHITE J: I have had the advantage of reading the reasons for judgment of McMurdo J as well as the observations of Williams JA and agree that this is a matter where nothing clearly contradicted the evidence given by the complainant. She was under cross-examination for a lengthy period and nothing in her or the other witnesses’ evidence should have caused the jury to have had a reasonable doubt on any of the counts.
McMURDO J: The appellant was convicted after a two day trial of five counts of indecent dealing and one count of attempted rape. He originally appealed against his conviction on each count and applied for leave to appeal his sentence. At the hearing, however, he abandoned his challenge to the sentence. Save for one criticism of the summing up which was but faintly pressed, his argument is that it was not open to the jury to be satisfied that he was guilty of any count.
The complainant was a girl aged eight years at the time of the relevant incidents. She lived in a five bedroom house with her mother, two older brothers and the appellant. The appellant had been a boyfriend of the complainant’s mother but that relationship had ceased by the time of these events. He and the complainant’s mother slept in different bedrooms. The complainant had her own bedroom across the hallway from her mother’s room, and with the bedroom doors open, her bed could be seen from the mother’s bed. The case was that all of the incidents took place in the complainant’s room.
The complainant described three distinct occasions, each occurring at night whilst the rest of the household was sleeping. They occurred within a four month period from shortly after the complainant’s eighth birthday until Christmas that year (2000), after which the appellant went to live elsewhere. The complainant first spoke to anyone about these matters on 1 September 2002. She told her mother something of these events and later that day the complainant was interviewed by police. A transcript of that interview was tendered at the trial. She then complained of the three separate occasions although, as the appellant emphasises, she did not then complain of the specific conduct the subject of the count of attempted rape. On 6 December 2002 she again attended at the police station, when she did complain of the attempted rape.
According to the complainant’s evidence given at the trial, the first two counts of indecent dealing occurred on the first of these three occasions. One count involved the appellant touching the complainant on the vagina. The second count involved the appellant causing the complainant’s hand to rub his penis. The second occasion was said to have involved the third and fourth counts of indecent dealing. The third count related to the appellant touching the complainant on the vagina and the fourth count was an allegation that his penis was in her mouth. The third occasion was said to have involved the fifth count of indecent dealing, the allegation being that the appellant again touched the complainant on the vagina, and the count of attempted rape.
The appellant’s submissions rely upon a number of matters which, taken together, are said to require the existence of a reasonable doubt in relation to all counts. The appellant submits, and the respondent apparently accepts, that if it was not open to convict in relation to a particular count, then the conviction upon each count is unsafe or unsatisfactory. The facts and circumstances upon which the appellant relies can be categorised in this way. First, there are matters which relate to the absence of any complaint during the period of more than 20 months from when the appellant left the complainant’s household. Secondly, there are some matters from which it is suggested that it would have been too risky for the appellant to have engaged in this conduct as he was very likely to have been discovered in the course of it. Thirdly, the appellant’s submissions refer to a number of alleged inconsistencies between the accounts given at different times by the complainant. It is argued that all these matters must then be considered against certain other facts and circumstances which are said to have weakened the case, being that the complainant was just eight years old during the period in question, the alleged offences occurred over a four month period, the complainant’s evidence was given some three years after the alleged offences, and her evidence was uncorroborated.
There was evidence that the complainant’s mother and her father (who lived elsewhere) had told her on numerous occasions that if anyone touched her inappropriately she should complain. On none of the occasions in question did she call for any help and, as I have mentioned, she made no mention of these events until at least 20 months after they had allegedly occurred. Just after Christmas 2000, the complainant’s family moved to another house, and during the six to eight months from that move, the complainant’s mother would speak to the appellant on the telephone once a week. Towards the end of that period, the appellant stayed at this house for just over a week, at the end of which the complainant’s mother asked him to leave although she said she wanted to keep in touch with him. She invited him to the house for Christmas that year, although he did not attend. The complainant’s mother had little contact with him in 2002. The complainant’s evidence was that she was always frightened of the appellant, even before the events in question. She was particularly frightened by the appellant’s appearance, and the unusual tattooing upon his face. The jury may have been persuaded to accept that evidence from seeing the appellant. She said that she did not call for help at the time of these events because of that fear of him and a particular fear that he would harm her mother. This provided a credible explanation for her not calling for help or later complaining of these matters, at least whilst the appellant was still living in her house. Although there was little contact between the complainant and the appellant after Christmas 2000, the contact between the complainant’s mother and the appellant continued, and the jury could have concluded that the complainant regarded it to be likely that she might come into contact with the appellant from time to time. The complainant said that she did not think that her mother saw the appellant after he left the house to which the family had moved in 2001, but this is not markedly inconsistent with her then complaining in 2002, when she was likely to have been more confident that the appellant was unlikely to reappear. The view is open that she was so frightened of him and apprehensive of his return to the household, that there was a satisfactory explanation for her delay in making a complaint.
As to the risk of being discovered during the three occasions, the appellant points to the following matters: the presence of other people living in the house, the proximity of the mother’s room to the complainant’s room, the likelihood that the door to each room was open with the result that the mother could have seen the complainant’s bed from her own bed, the existence of some lighting either in the hallway outside the complainant’s room or from a bedside lamp in her room, and the fact that the appellant spoke to the complainant in the course of these events. It is said that these matters, considered together, made it very likely that the appellant would be discovered so that the complainant’s account was unlikely to be true. But on her evidence, the first occasion (the subject of counts one and two) occurred on a night during which her mother and the appellant had been drinking, from which the jury could have concluded she was unlikely to discover what was occurring. The complainant’s mother recalled an evening in August or September 2000 when she and the appellant had been drinking, when she went to bed before he did. She recalled waking the next morning and finding that her bedroom door was shut, as was the door to the complainant’s bedroom. She said that this was unusual as the doors were always left open. The other matter which she observed that morning was that the complainant had woken up without her underwear on, although she said the complainant always wore underwear to bed. It was open to the jury to accept this evidence and to conclude that on at least the first occasion, the appellant had minimised the likelihood of being discovered by closing the doors, and that the appellant was encouraged by the circumstance that the complainant’s mother had fallen asleep after some drinking. And it could well have concluded that the experience of the first occasion had made the appellant less apprehensive of discovery on subsequent occasions.
I turn then to the submissions which rely upon differences in relation to some matters from one account of the complainant to another. In relation to the first occasion, the complainant said in each of her account, in the taped interview by police in 2002 and her evidence at the trial, that there was dealing of the kinds the subject of counts one and two. In both these accounts, she described how she left her room to go to the bathroom after some indecent dealing by him, before returning to the room to find the appellant still there. There were differences as to whether particular things happened to her before or after this visit to the bathroom. There were also differences as to whether the appellant was wearing a towel, or simply carrying a towel, when she woke to find him in her room on this occasion. In her account given to police, she described his attempts to put his penis in her mouth but her evidence at the trial was that his penis was in her mouth. On one account, she woke to find that the appellant had pulled down her underpants; on another account, he was then touching her underneath the underpants. On one account, when she returned from the bathroom, her underpants were on; but there was no evidence that by the time he had left, they had been removed (although there was no statement that they had not been). Yet the complainant said this occasion was the night before her mother walked into her room and found her underpants beside her bed.
On the second occasion, the subject of counts three and four, it is said that the evidence dealing with count three was “vague and tenuous” in that the complainant could not provide any particulars beyond saying that on the second occasion the appellant did the same things as he had done on the first occasion. It is also argued that there is a telling inconsistency between her evidence at the trial, which was that on this occasion he ejaculated into her mouth, and what she had told police. Her answers during the police interview did not suggest ejaculation, but the questions she was then asked about this specific incident did not make it inevitable that she would mention that, had she then remembered it. The relevant part of the interview proceeded in these terms:
“Q.Alright. So when he put his rude part in your mouth, what did that feel like.
A.Nothing really.
Q.And did he do anything with his rude part when it was in your mouth.
A.No.
Q.So it just, he just left his rude part just to sit there like that.
A.And then he, and then he took it out and then he went on with something else but I can’t remember what else.”
I do not regard these answers given to police as being clearly inconsistent with her evidence at the trial.
As to the third occasion, I have already mentioned that the complainant did not make a complaint about the conduct the subject of the attempted rape count when first complaining of the other matters. The jury however could well have concluded that, from her perspective and lack of understanding, much of the other conduct, in particular the appellant’s putting his penis in her mouth, was more distressing and serious than his conduct amounting to attempted rape. In relation to those counts five and six, the appellant’s submissions make a comparison of the detail of her description of the occasion, between her interview with police, her evidence-in-chief, and her evidence during cross examination. It is pointed out that having made no complaint when she was first interviewed by police (September 2002) about the attempted rape, but having subsequently told police that this occurred on the third occasion, the complainant then gave evidence-in-chief that she believed the incident of attempted rape occurred on the second occasion. Then during cross examination, the complainant suggested that this conduct of attempted rape may have occurred twice. The appellant also relied upon an inconsistency between her accounts of an attempted rape and evidence given by the complainant at the committal hearing, where one answer by her suggested actual penetration. There are other differences between her respective accounts which, in my view, are not of such significance that they need to be detailed here.
These suggested inconsistencies were matters upon which the appellant was entitled to rely in submitting to the jury that there should be a reasonable doubt. I am mindful of the need to consider together all of the matters upon which the appellant relies. But whilst these were material considerations, in my view it remained open to accept the complainant’s evidence that the appellant did engage in the conduct the subject of each of these counts. It is inherently likely that the respective accounts given by the complainant would differ in some respects. It is relatively unlikely that an honest and reliable witness would give precisely the same detailed version from one account to another. The complainant was consistent from one account to another as to the occurrence of the acts the subject of these charges, save perhaps for her omission to complain of the attempted rape on the first occasion on which she was interviewed by police. That does not strike me as especially remarkable or as something which seriously calls into question the reliability of the essence of her evidence. In the circumstances of that day, on which she had discussed for the first time these matters with anyone, and she had eventually found herself in the environment of a police station being interviewed on such personal questions, her failure to volunteer information which she subsequently gave to found the attempted rape charge can be understood. Apart from the suggested risk of the appellant being discovered, the appellant’s submissions do not point to anything which is said to make the complainant’s version an unlikely course of events. For example, it is not suggested that the complainant’s version is improbable when compared with any uncontroversial fact. And as discussed already, I do not regard it as unlikely that the appellant would have engaged in this conduct in the circumstances relied upon in relation to the risk of discovery. Ultimately, I have concluded that it was open to the jury to be satisfied that the appellant was guilty of each of these counts.
The appellant’s written outline of argument made a somewhat brief criticism of the summing up by saying, in effect, that the trial judge should have summed up by specific reference to each and every fact and circumstance now relied upon as a criticism of the prosecution case, including each and every alleged discrepancy or inconsistency which can be identified by a comparison of what the complainant said on one occasion against what she later said. But upon the hearing of the appeal, the appellant chose not to make any oral submission in support of this ground although it was not abandoned. In my view the submission is without substance and there is no basis for any proper criticism of the summing up, which fairly discussed the respective cases.
I conclude that the appeal should be dismissed. The application for leave to appeal against sentence, which was not pursued, should be dismissed.
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