R v F

[1995] QCA 223

[1995] QCA 223

COURT OF APPEAL

PINCUS JA
de JERSEY J
AMBROSE J

CA No 66 of 1995

THE QUEEN

v

F  Appellant

BRISBANE

DATE 19/04/95

JUDGMENT

PINCUS JA:  This is an appeal against conviction, the appellant having been convicted in the District Court of four counts of indecent dealing with a child under the age of 12 years with the additional circumstance of aggravation that the complainant was the appellant's lineal descendant.

The complainant was seven years old at the time of the trial, her date of birth being 28 February 1987.  She gave oral evidence and a section 93A statement was also put in.  In addition, the complainant's sister, C, gave oral evidence and a section 93A statement from C was put in.  That was adduced to corroborate one of the counts, namely count number 4.  There was medical evidence of scarring to the hymen consistent with digital penetration; his Honour took the view, and instructed the jury, that that did not amount to corroboration.

The case is one in which it does not seem to be necessary to set out the details of all the allegations which are made, but some mention should be made of those relating to count 4, because the argument which is advanced by way of challenge to the verdict is that count 4, in particular, was one in respect of which the jury should not have been satisfied.

Count number 4 was alleged to have been an offence committed at a time when, according to the evidence, C was living in the same house with the complainant, L.  The complainant said that she told the appellant that she had chafing between her legs.  She was then told to lie on the dining room table.  A threat was used to get her to take her pants off and the appellant put her finger in the vagina.  C said that she saw this occur.

The difficulty with supporting the conviction on count 4, according to the argument advanced by Mr Lynch on behalf of the appellant, is that, firstly, when the complainant gave her initial statement to the police she said nothing which could possibly support count 4.  She said on that occasion that the last time she was interfered with was in March, whereas count 4, if it occurred, must have taken place in May, because there was evidence that the two girls lived together only after 1 May.  That was a reason why the jury might have rejected the story.

It was also initially submitted that there was another difficulty about count 4, in that C claimed initially that she had not spoken to L about this episode and later said she had spoken to her about it a few days later.  However, the passage which is relied on in support of that does not appear to provide any sound foundation for the submission and it was eventually not pressed.

One comes down then, in respect of count 4, to the fact that the initial statement to the police did not and could not have included count 4 because of the dates given.  It must have been an afterthought.  Secondly, there was an inconsistency between L and C's claimed recollection of the communication between the two of them about it.  L said that she only remembered the facts comprising count 4 after talking to C, whereas C said that they discussed it a few days after the offence.

In addition to those specific points about count 4, Mr Lynch has drawn our attention to the fact that the complainant said she had told her aunt about these events, her aunt being one F.  F was called and she said that no complaint was made to her.  Lastly, Mr Lynch points out that the allegations arose in the context of the contest about custody in the Family Court.  However, the only solid points, in the sense of clear inconsistencies in the complainant's story, are those relating to count 4; if the submissions based on them were accepted, the verdict in respect of count 4 could not be upheld.

Experience suggests that these sorts of cases, where you have very young girls who claim to have been sexually interfered with are more often than not characterised by inconsistencies of this kind.  It is a difficult task for this Court, on appeal, to determine whether the inconsistencies are sufficiently serious to vitiate the verdict or verdicts.  It is very much a matter of judgment and a matter in respect of which one can hardly lay down any precise general rules.  Here it is conceivable, of course, that the circumstance that the allegation, count 4, was raised rather late is simply due to its having been fabricated and, no doubt, that was put to the jury; but the jury plainly thought that the allegation, which was uncontradicted, was true.

Taking into account that it was supported by the evidence of the sister, and also that it was uncontradicted, I have come to the conclusion that the verdict on count 4 should not be upset on the grounds which are relied upon.  There is no substantial ground, as it seems to me, for attacking the verdicts on any of the other three counts and I would, for myself, dismiss the appeal.

de JERSEY J:  I agree.

AMBROSE J:  I agree.

PINCUS JA:  The appeal will be dismissed.