R v DBN

[2017] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBN [2017] QCA 176

PARTIES:

R
v
DBN
(appellant)

FILE NO/S:

CA No 328 of 2016
DC No 36 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 11 November 2016 (Long SC DCJ)

DELIVERED ON:

22 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2017

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial of two counts indecent treatment of a child under 16 years, with the circumstance of aggravation as the complainant was under 12 years – whether the verdicts were unreasonable on the basis an integral aspect of the evidence of the complainant on one count was contradicted by the evidence of a prosecution witness and a defence witness – whether an independent assessment of the evidence supported the verdicts of guilty

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered

COUNSEL:

M J Copley QC for the appellant
V A Loury QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. GOTTERSON JA:  I agree with the order proposed by Mullins J and with the reasons given by her Honour.

2. McMURDO JA:  I agree with Mullins J.

3. MULLINS J:  The appellant was found guilty after trial in the District Court before a jury of two counts of indecent treatment of a child under 16 years, with the circumstance of aggravation that the complainant was under 12 years.  The appellant appeals against the convictions on the ground that the verdicts were unsafe and unsatisfactory, but submitted that should be treated as a complaint the verdicts were unreasonable.  The test to be applied is whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of these offences which requires this court to make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty could be supported: SKA v The Queen (2011) 243 CLR 400 at [21]-[22].

4. There were three counts on the indictment, but at the conclusion of the prosecution case, count 1 was discontinued.  Count 2 was particularised in terms that the appellant touched the complainant’s vagina or genital area on the outside of her underpants, under a dress, on a day when a fence was being built at her grandparents’ house in 2014.  The particulars of count 3 were the appellant touched the complainant’s breast at her grandparents’ house on a day after Christmas Day 2014, but not later than 22 February 2015.  For ease of reference, I will refer to the complainant’s grandparents as “the grandparents” and to them as “the grandmother” and “the grandfather” respectively.

5. The complainant is the appellant’s niece, as the complainant’s father and the appellant are brothers.  She was aged between 10 and 11 years in the period covered by count 2 and was aged 11 years in the period covered by count 3.

   The complainant’s evidence

6. The DVD of the complainant’s s 93A statement recorded on 2 March 2015 was played for the jury.  The complainant described the incident at the grandparents’ house which was the subject of count 3 in the following exchanges:

   “COMPLAINANT:  Like I’ve woken up before.  And like I’ve woke up and he come in to show me photos on his iPad thing that he got for Christmas.  And I just got back from staying over at um, his girlfriend’s, um, sister’s house.  And they all live in one house and that.  Um, and I got back and he, and he um, he come house and that.  Um, and I got back and he, and he um, he come and showed me.  And then I was just laying down and he went like that.

   SGT BRITTON:  Okay.  So when you said like that you used your hand and you touched yourself on the body twice.  Just do it again and just explain to me?

   COMPLAINANT:  He um, he touched here then he moved it up to here and then he stopped then I sat up straight away.

   SGT BRITTON:  Okay.  So where, where’d the first one touch?

   COMPLAINANT:  Just under.

   SGT BRITTON:  Under what?

   COMPLAINANT:  Under my boob.

   SGT BRITTON:  Okay.  Which one?

   COMPLAINANT:  Um, right.

   SGT BRITTON:  And the second time?

   COMPLAINANT:  Um, on.

   SGT BRITTON:  On what?

   COMPLAINANT:  On my boob.

   SGT BRITTON:  Which one?

   COMPLAINANT:  The right one.  Same one.

   SGT BRITTON:  Okay.  So how long was his hand on the first time under your boob?

   COMPLAINANT:  Um, he just went like this straight away.

   SGT BRITTON:  Okay.

   COMPLAINANT:  And then I just sat up straight.  Like he held it there and I just sat up straight away and just said, and yeah.  Just sat up and walked out.”

7. The complainant clarified that she was wearing clothes at the time and that the complainant’s hand was on the outside of her clothes.  The appellant was showing her photos on the iPad of “cool cars”.

8. The complainant did not know the date of this incident, but she recalled that the grandmother had let her go over to stay at her friend T’s house and that she had come back after sleeping over at T’s house which was also where the appellant and his girlfriend lived.  The grandfather had picked her up, and when she returned to the grandparents’ house, she fell asleep because she had stayed up all night.  The complainant said it was in the Christmas holidays that “we just had” and she thought it was after Christmas.

9. In this interview, when the complainant was asked about any other times the appellant had touched her, she responded:

   “COMPLAINANT:  Um, I think it was the end of last year.  Dad said it would’ve been, cause he was building the fence.  And I was just, we were mucking around with my cousins.  And grandma has like this bin that um, has all funky clothes in.  And I was wearing this disgusting dress, it was really long.  It was down to here.  And um, I asked him to roll it up and he rolled it up.  And then he touched, he went like that.

   SGT BRITTON:  So what did he do?

   COMPLAINANT:  Um, he rolled it up and he went like that to my private.”

10. The complainant was asked what happened after putting the dress on:

    “COMPLAINANT:  And then we were dancing around and then we um, we went over to the shed to have a look at me.  Then he come over.  And I’m like oh, [appellant’s name] can you lift this up a little bit?  ‘Cause [INDISTINCT].  And he lifted it up and he tried to fold it, and tied it in a knot.  He went like that.

    SGT BRITTON:  So you asked him to adjust it for you?

    COMPLAINANT:  Yeah.

    SGT BRITTON:  So you asked him to fold the skirt up, fold the dress up?

    COMPLAINANT:  Mmhmm.  Just a little bit ‘cause it was way down and I was tripping over it.

    SGT BRITTON:  Okay, so he’s folding it up?

    COMPLAINANT:  Mmhmm.

    SGT BRITTON:  What happened next?

    COMPLAINANT:  And then he went like that to my private.

    SGT BRITTON:  Okay.  So whereabouts was he folding the dress up?

    COMPLAINANT:  He was just folding it.  I didn’t really ask for any particular.  Just can you fold it up and yeah.

    SGT BRITTON:  So whereabouts on, on relation to you was it being adjusted?

    COMPLAINANT:  Um, here.

    SGT BRITTON:  Okay.  So he was, he was at, at your knees adjusting it?

    COMPLAINANT:  Yep.  Yeah about there.

    SGT BRITTON:  And then you say he did that.  What do you mean by that?

    COMPLAINANT:  Like he went like that to my private.

    SGT BRITTON:  Okay.  So I need you to explain that to me.

    COMPLAINANT:  Like he touched it.  But I had undies on.

    …

    SGT BRITTON:  Okay.  Alright.  And how did he touch it?

    COMPLAINANT:  He just went like that to it.

    SGT BRITTON:  What do you mean by that?  I need you to describe that for me.

    COMPLAINANT:  Like just went touch, touch.

    SGT BRITTON:  What did he use to touch it?

    COMPLAINANT:  His finger.

    SGT BRITTON:  So how did he get his, his, his fingers from your knees up to there?

    COMPLAINANT:  I don’t really know.  He was sort of, did that.  And my cousin was there next to me too and she couldn’t believe it.”

11. When the complainant described the dress as being “down there” she can be seen in the s 93A recording motioning to her ankles, as if to show the length of the dress.  The complainant also demonstrated the movement of the appellant’s finger when it touched her private part.  The statement made by the complainant to the effect that E was next to her and “she couldn’t believe it” was not explored by the interviewing police officer.

12. The complainant’s evidence was pre-recorded on 2 June 2016 and that pre-recording was also played for the jury at the trial.  Her evidence-in-chief was limited to clarifying that, in relation to the dress incident, when she referred to “private” she was referring to the vagina, and the appellant touched her “on top of the undies”.

13. During cross-examination, the complainant accepted that on the day of the dress incident that the appellant, her parents and the grandparents were building a fence.  When it was put to her that the appellant was involved in building the fence and had nothing to do with her, she disagreed.  There were “probably about four” children dressing up which included the complainant and two of her cousins.  It was only the complainant and her younger cousin who were dressing up and that younger cousin was always with her.  The complainant was not cross-examined on the length of the dress she was wearing.  In re-examination, the complainant clarified that the name of the younger cousin was E.

    Other evidence adduced by the prosecution

14. The audiovisual recording of the s 93A statement of the complainant’s cousin E taken on 19 July 2015 was also played for the jury.  During 2014 E was seven to eight years old.  When E was asked did she remember “doing dress ups at grandma’s house”, she responded in the negative.  She also disagreed that the grandmother had clothes there that were like costumes and she also said “no” to the question about whether she ever played dress ups with the complainant at grandma’s house.  E said she did not see the appellant touch the complainant any time.

15. E’s evidence was also pre-recorded on 2 June 2016 and played for the jury.  In the cross-examination it was suggested to E that she had told the grandmother that the complainant was telling lies about the appellant touching people.  E could not remember that she had done that, but when asked whether the complainant was telling lies about the appellant, she responded “No”.  (With the agreement of both the prosecutor and the defence counsel, the learned trial judge directed the jury that as E refuted the suggestion that she had said something to the grandmother about the complainant, there was no evidence from the grandmother of E making such a statement to her and the suggestion from what was asked in cross-examination should be ignored.)

16. E’s mother also gave evidence.  E’s mother is the sister of the appellant and the complainant’s father.

17. E’s mother remembered the fence being built at her parents’ property.  (Her parents are the grandparents.)  The appellant would regularly visit the grandparents’ place.  Generally he lived with his girlfriend and her mother.  His girlfriend had a younger sister T who lived in the same household as the girlfriend and her mother.  During 2014 and the early part of 2015, the appellant was not working.  During the day when his girlfriend and her mother were at work, he would spend the day at the grandparents’ place.  There were occasions when E and her brother would stay over at the grandparents’ place, without E’s mother being there.

18. On the occasion of the fence building E’s mother was there with her partner and their children E and E’s brother (who was 5 years younger than E), the appellant, the complainant and her parents, and the grandparents.  The complainant’s father and E’s father were the main workers on the fence and the appellant’s girlfriend and E’s mother were handing bolts and brackets and the like.  The appellant mixed up a bit of concrete to put the posts in.  It took nearly all day to build the fence.  E’s mother could not estimate how much time the appellant was there at the fence compared to being elsewhere.  The grandparents would come out and chat for a bit, but were coming and going like the appellant.  The three children (E and her brother and the complainant) were “just running around being silly”.  E’s mother recalled that they got changed:

    “They played in mud and they got all wet and dirty and stuff, so my dad had a rag bin in his shed, so the kids decided it would be a good idea to go into the shed and get some clothes out of the rag bin to get dry clothes on.”

19. It was all three children who were doing this.  E’s mother saw them talking to the appellant and “mucking around”.

20. During cross-examination, E’s mother said there were two loads of concrete to mix with the concrete mixer.  The rag bin was inside the tool shed.  E and the complainant “stuck together like glue”.  After the fence was finished for the day, E’s mother did not notice E and the complainant acting any differently than the beginning of the day.  The rule was that children were not allowed to go into the shed unless they were supervised, because the shed was full of “hard, sharp or loose instruments”.  There was not an adult supervising them all the time on this occasion.  The grandparents were sitting out the back looking at the children and sometimes following them around.  E’s mother did not see the complainant and E go into the tool shed, but inferred they did as, when they got dressed in the clothes from the rag bin, they came out to the fence.

21. In re-examination, E’s mother said that she could not see the entrance to the tool shed from the fence and that one of the adults who could supervise the children was the appellant.

22. E’s father gave evidence.  He recalled the occasion when the fence was being built at the grandparents’ property.  On that occasion he was present with his partner and their two children, the grandparents and the complainant and her parents.  The main constructors of the fence were the complainant’s father and himself, but they did have help from time to time.  His partner and the complainant’s mother would fetch things that were needed and the appellant “did come over and offer a bit of assistance here and there, but he did not spend the whole day with us doing the fence”.  It took the whole day to build the fence.  The appellant may have helped mix up a bit of concrete.  There were about 15 post holes and one shovel load of concrete was required for each.  There was at least one, or possibly two, wheelbarrow loads of concrete required.  The appellant was at the fence for less than half the time.  E’s father did not pay any attention to where the appellant was and did not see his activities away from the fence.  The children (E, E’s brother and the complainant) “played up, … as children do”.  E’s father could not remember if they changed their clothes at all.

23. In cross-examination, E’s father recalled that it was the complainant’s father and he who mixed the concrete and put it in the holes, but there was a strong chance that the appellant may have helped, but he could not recall for sure or not.  The children were not allowed to be in the tool shed on their own.  E’s father had seen the grandmother clear the shrubs where the fence was being constructed before the day it was constructed.

24. The grandparents from time to time would supervise the children.  The children’s interactions with everyone were normal and there did not appear to be anything out of the ordinary.  In re-examination, E’s father confirmed that the appellant was one of the adults who would supervise the children from time to time.

25. The complainant’s father was working in fencing and got the materials through his boss to build the fence on the grandparents’ property.  The complainant’s father considered that he built the fence.  There were no more than 20 posts.  At the beginning the grandfather and the appellant mixed the concrete, but there was not much concrete to mix.  It was not an all-day process to mix it.  One load would do six to seven posts.  The gravel for the concrete would have come from the creek and it was possibly the appellant who collected it, but the complainant’s father did not remember if that was on the day the fence was built or whether that had been prearranged.  The complainant’s father stayed at the fence “probably 90 per cent of the time” and others were helping by passing things to him or measuring things with him.  They included his partner, sister and sister’s partner.  The appellant was there “some of the time”.  There were probably no more than three loads of concrete for the day.  The complainant’s father estimated that the appellant was in the vicinity of the fence about one-quarter of the time it took to build the fence.  The children played or talked to those in the area of the fence, but at some stage they did go into the other yard.  They got into the mud a fair bit and got changed.  The complainant got changed into clothes out of the rag bin in the grandfather’s shed.

26. The bushes along the line of the fence had to be trimmed back a lot and that was done on the day the fence was built.  The appellant used the tractor to “sort of back laid the line a bit” before the complainant’s father put up the string line to mark the location of the fence.  The complainant’s father did see the appellant interact with the children on that day, talking and doing “stuff together”.  It would have been just after lunchtime when the complainant got changed.

27. During cross-examination, the complainant’s father confirmed that the appellant was not there at the fence “as long as everyone else”.  The appellant operated the tractor “back loading of the line”, but that was “a 10 minute job”.  The complainant’s father could not remember if the gravel was sitting in a trailer or on the ground or if it was dumped there beforehand or during the morning.  The complainant’s father remembered seeing the appellant do one mix with the grandfather.

28. At Christmas time the complainant seemed to be talking to the appellant and “everything seemed normal”.  When the complainant stayed with the grandparents, it was up to the grandparents whether they approved visits by the complainant to the appellant’s girlfriend’s mother’s place.  The grandmother liked to act like a friend to the grandchildren and she would sleep in the same bed as the complainant, if there were no other children there.  If there were other children at the grandparents’ place, the children would sleep together.  In re-examination, the complainant’s father confirmed that the appellant had done one mix of concrete, he did a mix himself and he was not exactly sure who did the other mix.

29. The complainant’s mother gave evidence.  The appellant was generally at the grandparents’ place most times when the complainant’s mother family visited.  The appellant’s girlfriend’s sister T was only a year apart in age from the complainant.  The complainant’s friendship with T was formed at the grandparents’ place.  The complainant went to T’s house a couple of times.  She stayed over at T’s house for T’s birthday in 2014.  When asked whether the complainant stayed at T’s house on any occasion other than the birthday party, the complainant’s mother responded:

    “I think she may have another time, but I’m not 100 per cent.  Like, as far as I know, it was just she slept over there twice.”

30. The complainant went to T’s place from the grandparents’ place and the grandparents would let her go over to T’s place.  The complainant stayed over at the grandparents’ place a lot.  It was on regular occasions such as weekends and holidays.

31. The complainant’s parents, E’s parents and their children, the grandparents and the complainant were present on the day the fence was built.  The complainant’s father was the main builder of the fence, although all the adults helped out a bit, except for the grandfather who did not do much and was inside most of the time.  The helpers came and went as the complainant’s father continued building the fence.  The appellant started off helping and mixed a bit of concrete for the complainant’s father, but then for most of the day “he was doing his own things”.  The complainant’s mother did not pay attention to where he was, because he would be in the grandfather’s shed a lot.  The appellant would have been helping with the fence less than half the time.

1. The children were playing in the garden in the dirt with the water.  They got dirty and the complainant’s mother heard the grandmother tell them to grab something from the rag bin to get changed.  The complainant and E got changed.  The complainant changed into an ugly dress that was “baggy and loose” and “too big for her”.  She remained in the dress for the rest of the day.  She kept it and the complainant’s mother threw it out a couple of days later.  The complainant’s mother did not see the children get changed or see them in the shed.

2. The complainant’s mother was the person to whom the complainant had first complained about the appellant’s conduct and gave the following evidence that was admitted as preliminary complaint evidence only for the purpose of the jury using it to assess the complainant’s credibility.  On 22 February 2015 the complainant’s mother initiated the conversation with the complainant by asking her whether the appellant had “ever been rude to you?” and the complainant responded in the negative.  When pressed by the complainant’s mother, she responded in the affirmative saying “mum, don’t get angry” and “that she was worried her uncle … would get in trouble and myself and her dad” and related this complaint in these terms:

   “She told me that there was three occasions, and the first one she told me was with – when we were building the fence, she asked [the appellant] to roll up her dress for her, and, yeah, she – I – so I asked her what happened, and she said he tapped me, and I said what do you mean by tapped you?

   …

   She said she (sic) tapped me and, yeah, on the vagina.”

3. While giving her evidence, the complainant’s mother demonstrated the gesture she observed the complainant do to show the tapping on her vagina.  In cross-examination on the preliminary complaint evidence, the complainant’s mother agreed that the complainant never actually used the word “vagina”, but just pointed to the area.

4. As part of the preliminary complaint evidence, the complainant told her mother that another occasion when something happened was when she stayed over at T’s place and she said the appellant sucked on her neck.  (That was the subject of count 1 that was discontinued.)  The complainant also told her mother about another time “that she woke up with him patting her up the body and left his hand on her boobs, and she said … what’s wrong [name of the appellant] or what’s up, and he said I’m just trying to show you these photos, and he had his phone”.  The complainant’s mother also demonstrated the gestures of the complainant when the complainant was telling her about this incident which were described for the record as starting “with your hand about the waist … patted your way up … until your breast and then left your hand there”.  The complainant indicated to her mother that this incident occurred when she was at the grandparents’ home.

5. In cross-examination on her evidence generally, the complainant’s mother clarified that if the children were dirty, they would help themselves and get stuff out of the rag bin.  In relation to the dress that the complainant chose to wear, the complainant’s mother remembered “it was loose and it was baggy and it just didn’t fit her right”.  When asked about the length, she observed “it was pretty long on her”.  When she answered “it was probably about down to here”, defence counsel suggested “Down to your knee?” and the complainant’s mother agreed.  The dress was “probably about three sizes or four sizes too big”.  When asked about the length of the dress, before it was rolled up, the complainant’s mother said “Yes it was, it was around the knees.  Probably just a bit below, approximately.”  She agreed that it was not on the ground.

6. At the end of the day the complainant’s mother saw nothing different in how the children were behaving.  Everything seemed normal as far as the complainant’s relationship with the appellant was concerned.  The complainant’s mother did not see anything different in their relationship around Christmas 2014.

7. The complainant’s mother was not 100 per cent sure whether the appellant used the tractor on the day the fence was being built to level that area for the fence line, but conceded that he could have done so.  The grandmother was keeping an eye on the children, but she was not sitting there watching the children all the time.

   Defence witnesses

8. The appellant gave evidence.  On the day the fence was being put up, he denied being in the shed with the complainant at any point and denied touching the complainant on the vagina.  He mixed concrete, drove the tractor to collect sand and level the ground, and cut some steel for the gates which were a metal pipe frame with mesh in between.  They were too big for the gateway and had to be cut down to size.  He used a grinder to cut them down.  In doing so he was assisted by his mother, his sister and her partner and the complainant’s father.

9. The appellant helped his partner prepare for the birthday party of his partner’s sister T that was held in May 2014.  He was given a Samsung tablet that is about seven inches in size and white in colour at Christmas 2014.  He had some family photos on the tablet, but no photos of cars or anything like that.  He never woke the complainant up and showed her some photos of cars on his iPad.  He denied touching the complainant around the breast area and on the breast.

10. On the day the fence was constructed, the appellant used the tractor to collect sand from the creek for the concrete and level the ground for the fence to be built.  He also thought that he collected branches that had been cut off trees where the fence was to be built and took them down to the fire pile in the paddock.

11. The appellant remembered the complainant and E playing around and he had “a small bit” to do with them on that day.  He may have had a conversation with them while they were playing, as he normally would.

12. During cross-examination, the appellant described how the grandfather had a disability with his back that limited his mobility and meant he often had to spend time in bed.  The grandmother was his carer.  The complainant formed a friendship with T who was the appellant’s girlfriend’s younger sister who lived with her mother, the appellant’s girlfriend and the appellant.  On occasion the appellant’s girlfriend and T came with the appellant to the grandparents’ place.  The complainant visited T at her residence on one occasion when she slept over for T’s birthday.

13. For Christmas 2014 the appellant received a Samsung Mini Galaxy tablet (not an iPad) that did not have internet access and he used it to take family photos on Christmas day.  The children expressed interest in the tablet, but the appellant would not let them play with it.  At no stage did he ever show the complainant pictures of herself on the tablet.  He let her have a look at the tablet on Christmas Day.  It was only rarely that the appellant would spend time alone with the complainant at the grandparents’ place, as, if the complainant was not there with her parents, she was with the grandmother.  Any one–on–one time the appellant had with the complainant was may be “five minutes here or five minutes there, but it was very brief”.  When the complainant stayed over, she would be in the spare room at the end of the house that was some distance from where the grandparents slept.  The appellant could not recall any occasion when he had gone into that room when the complainant was there.

14. The shed in which the appellant worked on his camper trailer was not the same shed where the rag bin was.  The appellant cleared the scrub using the tractor before the construction of the fence commenced.  The appellant used the tractor to get more than one scoop of gravel from the creek and was mixing the concrete on and off.  There were about three loads of concrete mixed.  The appellant disagreed with the proposition that he was working or helping at the fence less than half the time that the fence was being built.  He interacted with the children as they came and went, but did not spend much time that day with them.  They appellant remembered seeing the complainant in different clothes that came from the rag bin.  He denied helping her fix up her dress.

15. The appellant denied there was an occasion where he had placed his hand on the complainant and moved it up to touch her on her breast area.  He denied there was an occasion where he woke the complainant up to show her something on his tablet.

16. In re-examination, the appellant described that he was “pretty busy” on the day the fence was constructed, as he had to get gravel for the fence, clear away brush, take branches to the fire pile, and he “probably slashed” some grass on the property for the grandfather.

17. The grandmother could recall the day in 2014 when the fence was constructed on the property where she and her husband lived.  The fence was built by the complainant’s parents, E’s parents and the appellant.  The complainant’s father was working for a fencing contractor and knew what he was doing and the appellant helped with using the tractor and mixing the cement up near the house.  The appellant used the tractor on that day to level out the ground up near the house which was the end of the fence and also to get some gravel from the paddock to mix the cement.  The appellant mixed the cement.

18. The rag bin contained old clothes of the grandparents and old sheets.  The grandmother was five foot four or five foot five and the complainant at the time would have been up to her shoulder at least or a bit taller and estimated that the complainant was something like six inches shorter than her.  The complainant has always been “a big girl”.  The grandparents were minding the three children, but occasionally the children would go over near their parents.  The grandparents took turns watching the children.  The rule was that the children were not allowed in the sheds without an adult.  On this day the children became wet and dirty.  The grandmother hosed them off and took them down the shed and changed them in the shed from their muddy clothes.  The complainant changed into one of the grandmother’s old dresses out of the rag bin.  E changed into an old shirt.  The fence took all day to construct from about 10 am until after 6:30 pm.  The children had a lot of fun.  The grandmother did not notice anything different in how the complainant acted with the appellant at the end of the day.  Their relationship after that day was normal.  The complainant would go for a drive down the paddock with the appellant in the Subaru.

19. The complainant would occasionally sleep over at her grandparents’ place in the bedroom at the far end of the house.  It had a double bed in it and the grandmother would always sleep with her grandchildren.  When asked whether the complainant would be asleep in the bedroom if the grandmother was not, she responded “No, I always slept with them”.  In 2014 the appellant would go home every night to his girlfriend’s house.

20. During cross-examination the grandmother was adamant that the appellant never went into the complainant’s room by which she was referring to the bedroom where the grandmother slept with the complainant.  When pressed with the question to the effect of whether the appellant never went into that bedroom, the grandmother responded “as far as I know”.  The grandmother then said that the complainant never went in to that room during the day “because if she wasn’t looking at the camper trailer or whatever she was always with me and we’d do things together, like go pick fruit, go over town, go to the shops”.  The camper trailer was the appellant’s project.

21. Even when the complainant was 10 to 11 years old, the grandmother would sleep in the bedroom with the complainant when she stayed over at the grandparents’ place.  Occasionally the complainant would sleep-in and the grandmother would sit out in the kitchen and “have a cuppa”, but she was not far away.

22. There was no connection to the internet at the residence, apart from the grandfather’s phone which he used to look up Google.  The grandmother remembered the appellant “having a white tablet thing”, but could not recall being shown any photographs on the tablet.  Sometimes the appellant could “hook up to my husband’s phone somehow, and he would look at … different cars or stuff like that”.

23. On the day the fence was built, the grandparents were taking turns watching the children.  When the grandfather went inside to rest, the grandmother would stay up with the children.  The grandmother was sure that on this day, when they went to the rag bin, that she was with them.  When the family members had turned up to build the fence, the area needed levelling out and the appellant used the tractor to clear and level the land.  The appellant used the tractor to get a couple of scoops of sand and gravel from the creek to put into the trailer and the grandfather drove the car up from the paddock with the trailer.

24. The grandmother was following the children around.  It was either the grandmother or the grandfather who would watch the children.  The grandmother would be “watching them all the time” and then would see them talking to their parents and then they would take off again.

25. At one time the appellant and the grandfather went to the shed to look for the stringline.  The appellant spent most of the day mixing cement up near the carport.  He would go inside and have a drink with the grandmother or the grandfather while the cement mixer was turning.  The appellant would go over to the fence and talk to those who were there, but he would be straight back to where either the grandmother or the grandfather was out in that carport.  The appellant “rarely left the house” on the day the fence was constructed.

26. The grandmother can remember the dress that the complainant put on the day the fence was constructed.  The grandmother recalled “I don’t know the colours, but I know around about how long it was … Because we were laughing at her”.  The only occasion that the complainant slept over at T’s house was on the occasion of T’s birthday party.

27. In re-examination, the grandmother stated that the dress the complainant wore was an old yard dress of hers and the length of the dress was “something like” just above the grandmother’s knee.  When asked whether the dress was too big for the complainant, the grandmother responded:  “No, because [the complainant] is a big girl.  It was probably a bit longer than what it would have been on me, but – yeah, a bit too big here” and the grandmother pointed to what would have been the top of the dress and said “but none of her breasts or nipples were showing or anything”.  The grandmother clarified the length of the dress as probably below the knee, because the complainant is a tall girl.  The grandmother demonstrated for the jury that the dress was a couple of inches or three or four centimetres below her knee to show where it would have been on the complainant, but stated that on the grandmother, it was “a bit above” the knee.

28. The appellant’s girlfriend gave evidence.  In 2014 her sister T was 10 years old.  On the night of T’s birthday party, about 10 children stayed over, including the complainant.

29. For Christmas 2014 the appellant’s girlfriend bought the appellant a white Samsung Galaxy tablet about seven inches long and four inches wide.  It did not have a SIM card.

30. In cross-examination, the appellant’s girlfriend confirmed the night of T’s birthday party as the only time the complainant slept over at the home of T and the appellant’s girlfriend.

    The appellant’s submissions

31. The appellant’s argument about unreasonableness of the verdicts was primarily directed at count 2 and can be summarised as follows.  It was not open to the jury to accept the complainant’s evidence in respect of the touching that was the subject of count 2 as truthful and/or reliable beyond reasonable doubt on the basis that an integral aspect of her account on the length of the dress she was wearing was contradicted by other prosecution evidence supported by the evidence of a defence witness.  Whereas the complainant indicated the length of the dress was down to her ankles and she was tripping over it, that did not accord with the description given by both her mother and the grandmother.

32. In summary, her mother described the dress as “pretty long on her” and “probably was just a bit below” her knees, and the grandmother demonstrated the length as a couple of inches below the complainant’s knee, as on the grandmother the dress would have been a bit above her knee.  On the basis of the consistent evidence of the mother and the grandmother on the length of the dress on a complainant, the dress was not so long as to be a problem for the complainant to wear without tripping over in it, and there was no reason for the complainant to ask the appellant to roll it up.  The length of the dress was a central aspect to the complainant’s story and, as that was strongly contradicted by the evidence of two adults, then the complainant’s evidence on count 2 could not be accepted as being both honest and reliable.

33. The appellant’s argument about the unreasonableness of count 3 depends on what conclusion is reached about the unreasonableness of the verdict of count 2.  It is submitted that if the court concludes on the appeal that the complainant’s evidence in relation to the circumstances of count 2 cannot be accepted as being both honest and reliable beyond reasonable doubt, then that has a consequence for the verdict on count 3.

    The respondent’s submissions

34. The respondent argues that the appellant focuses too much on the length of the dress and overlooks that the complainant’s mother also described the dress as three or four sizes too big for the complainant.  Before the complainant asked the appellant to adjust the dress, she had been dancing around in the yard and was “tripping over it”, because “it was way down”, and she asked the appellant to fold the skirt up “a little bit”.  It was not necessary to accept that the complainant was speaking literally about tripping over the dress, as she was an 11 year old conveying the dress was too big for her, in the context of dancing around.  The grandmother’s evidence about the dress was not consistent with the complainant’s mother’s evidence that the dress was three or four sizes too big for the complainant.  In contrast, the grandmother described the complainant at the time as “a big girl” and “a tall girl”, and responded “No” to the question in re-examination about whether the dress was too big for the complainant, clarifying only that it was “a bit longer” than it would have been on the grandmother and “a bit too big” only in the top of the dress.

35. There was no precision in the evidence as to the length of the dress, as the complainant, her mother and the grandmother were remembering what would otherwise have been an innocuous event of the complainant’s dressing up in her grandmother’s old dress.

36. It is not surprising that there was no observable change in the complainant’s behaviour after the touching on the day the fence was built, as it was a momentary touching on the outside of her underpants.

37. The grandmother’s evidence displayed partisanship or bias in favour of the appellant.  The grandmother by her evidence tried to limit any opportunity or reason why the appellant would have been near the complainant when the fence was being built or at any other time.

38. With respect to count 3, during the pre-recorded interview with the police officer, the complainant volunteered that there were two occasions that she slept over at T’s place, one of which was for T’s birthday party and the other time was a later occasion after the birthday party.  There was, in fact, some support from the grandmother’s evidence for the complainant’s account in respect of count 3, as the grandmother said the appellant used the tablet to look at “different cars”.

    Was the verdict of guilty on count 2 unreasonable?

1. The extent of the evidence adduced at trial in relation to count 2 was out of all proportion to the particulars of the offence which were confined to the momentary touching of the complainant whilst the appellant was adjusting her dress.  The explanation for this is no doubt that the incident occurred on the day the fence was being built at the grandparents’ property and each witness gave evidence of the entire day’s events, in order to put into context the small amount of evidence that was directly relevant to the incident.  The consequence is that the analysis of the evidence for the purpose of considering whether it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of count 2 is relatively confined, in comparison to the summary of the evidence at the trial.

2. The complainant’s s 93A video-recorded statement shows the complainant explaining the circumstances of the touching that was the subject of count 2 in a matter-of-fact and straightforward manner, and not suggesting that it was anything more than how she described it, as the appellant’s touching her in the area of the vagina on the outside of her underpants, when he was rolling up her dress.  The fact that she thought her cousin E was there and observed the touching which E did not recall is not of any particular assistance, when E did not remember the occasion of “doing dress ups at grandma’s house” and E was about three years younger than the complainant.

3. The quality of the evidence of the mother and the grandmother on the length of the dress was different.  Although they may have used similar words to suggest that the length of the dress came to just below the complainant’s knee, their evidence was also not consistent.  The complainant’s mother’s description that the dress was three or four sizes too big for the complainant conveys a very different picture to the grandmother’s evidence that the only place that the dress was too big for the complainant was in the top of the dress.  This is in the context of the grandmother’s not knowing the colours on the dress, but was adamant that she knew how long it was, because they were “laughing” at the complainant (which by inference was because the complainant was wearing the grandmother’s dress).

4. To the extent that the grandmother’s evidence is inconsistent with the complainant’s mother’s description of the dress, I consider it was open to the jury to reject the grandmother’s evidence and act on the picture that was painted by the complainant’s mother’s evidence that the dress was far too big for the complainant.  Although there is a difference between the complainant’s mother’s description of the length of the dress (below the knee) and that depicted by the complainant by pointing out the length (towards her ankles) in the s 93A video, the substance of what was conveyed by the evidence of the complainant and the mother was consistent: the dress was far too big for the complainant for what she was doing in the dress in running around and dancing.

5. The preliminary complaint evidence is of assistance in assessing the complainant’s credibility.  Despite the complainant at first denying to her mother that the appellant had been “rude” to her, she then related her complaint about the incident the subject of count 2 consistent with her evidence in the s 93A video.

6. On the basis the complainant’s mother’s evidence supported and did not contradict the complainant’s evidence in the material respect that was relevant to the reason for the complainant to ask the appellant to adjust the dress, it was open to the jury to accept the complainant’s evidence and to conclude beyond reasonable doubt that the appellant had touched the complainant in the circumstance that was the subject of count 2 in the manner described by the complainant.  An independent assessment of the whole of the evidence does not leave me with a reasonable doubt about the appellant’s guilt on count 2.  The verdict of guilty on count 2 was not unreasonable.

   Was the verdict of guilty on count 3 unreasonable?

7. It follows from the conclusion that the verdict of guilty on count 2 was supported by the evidence, that there is no basis for setting aside the conviction on count 3 on the basis that the complainant was not an honest and reliable witness.

8. The complainant’s evidence in relation to this count was again straightforward and unembellished.  It is clear that the incident that was the subject of the complainant’s evidence on count 3 took place soon after Christmas Day in 2014, when the appellant was given the Samsung tablet.  On the basis she was an honest and reliable witness, it was open to the jury to accept her evidence that she did in fact have two sleepovers at T’s house, in preference to the evidence of the defence witnesses, and to be satisfied beyond reasonable doubt that the appellant had touched near and on her breast in the manner she described.  The verdict on count 3 was not unreasonable.

   Order

9. The order which should be made is:

   Appeal dismissed.