R v Firth
[2022] QCA 11
•11 February 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v Firth [2022] QCA 11
PARTIES:
R
v
FIRTH, Gavin Paul
(appellant)FILE NO/S:
CA No 215 of 2020
SC No 139 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Townsville – Date of Conviction: 18 September 2020 (North J)
DELIVERED ON:
11 February 2022
DELIVERED AT:
Brisbane
HEARING DATE:
9 June 2021
JUDGES:
Fraser and McMurdo JJA and Henry J
ORDER:
Dismiss the appeal.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by a jury after a trial and convicted of seven offences against the same complainant – where the appellant appeals against his conviction upon the ground that the verdicts are unreasonable and cannot be supported by the evidence – whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt
Evidence Act 1977 (Qld), s 93A
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, citedCOUNSEL:
J W Fenton for the appellant
C W Heaton QC for the respondentSOLICITORS:
Stevenson McNamara for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: The appellant was found guilty by a jury after a trial and convicted of seven offences against the same complainant. The appellant appeals against his conviction upon the ground that the verdicts are unreasonable and cannot be supported by the evidence. The ultimate question raised by that ground is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt.[1] The Court must conduct an independent examination of the whole of the evidence[2] “to see whether, notwithstanding [the jury’s] assessment [that the evidence of the complainant was credible and reliable] – either by reason of inconsistencies, discrepancies, or other inadequacies; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”[3]
[1]Pell v The Queen (2020) 268 CLR 123 at [43] – [45].
[2]SKA v The Queen (2011) 243 CLR 400 at [20] – [22].
[3]Pell v The Queen (2020) 268 CLR 123 at [39].
The offences are described in the following table:
Count
Date of Offence
Nature of Offence
Particulars[4]
1
On a date unknown between 31 December 2015 and 24 March 2017
Rape
(The time in the complainant’s bedroom)
The defendant used his finger/s to penetrate [the complainant’s] vagina, without her consent.
2
22 April 2017
Supply a Dangerous Drug to a minor
(The time behind Cranbook Seafoods)
The defendant supplied the dangerous drugs methylamphetamine and/or amphetamine to [the complainant], who was a minor over 16 years of age.
3
Attempted Rape
(The time in the school toilet)
The defendant attempted to insert his penis inside [the complainant’s] mouth, without her consent.
4
Indecent Assault
(The time in the school toilet)
The defendant licked and/or sucked [the complainant’s] vagina with his tongue, without her consent.
5
Rape
(The time in the school toilet)
The defendant inserted his penis into [the complainant’s] vagina, without her consent.
6
Supply a Dangerous Drug to a minor
(The time in the school toilet)
The defendant supplied the dangerous drugs methylamphetamine and/or amphetamine to [the complainant], who was a minor over 16 years of age.
7
12 May 2017
Indecent Assault
(The time in the shower at Carter Street, North Ward)
The defendant touched the outside of [the complainant’s] vagina with his penis, without her consent.
[4]Exhibit 1.
As the table reveals, the offences were alleged to have been committed on three separate days. The complainant was between 14 and 15 during the period in which the complainant said count 1 was committed[5] and she was 16 on the separate days when counts 2 – 6 and count 7 were alleged to have been committed. The complainant lived with her mother. The appellant knew the complainant and her mother. He had lived with them for a short period. At times the complainant referred to the appellant as “dad”.
[5]The complainant said the conduct alleged in count 1 occurred before her 16th birthday: complainant’s second police interview at pp 38 – 39. The complainant’s date of birth was admitted: exhibit 31, item 1.
There was no challenge to the evidence in the Crown case by a psychologist that the complainant met the diagnostic criteria of intellectual disability, her full-scale IQ (55) being in the extremely low range. Her scores in verbal comprehension, perceptual reasoning, working memory and processing speeds would be exceeded by (respectively) 99.7 per cent, 97 per cent, 99.9 per cent, and 99.7 per cent, of her nominative peer group (within her age). The psychologist considered she was able to understand the difference between the truth and a lie, and she also understood it was wrong not to tell the truth in court, the oath required her to tell the truth, and telling the truth was important to assist the judge and the lawyers in the court.
The Crown case depended upon the jury accepting as credible and reliable the statements made by the complainant in three recorded interviews with police that were admitted as evidence pursuant to s 93A of the Evidence Act 1977 (Qld).[6] At the hearing of the appeal, counsel for the appellant commenced his submissions by conceding that the statements made by the complainant in the police interviews represented a clear and consistent description of the alleged offending and, if those statements were accepted as true beyond reasonable doubt, each of the charged offences was established by her evidence. The principal argument for the appellant is based upon statements the complainant made in her pre-recorded evidence recanting the allegations she had made in her police interviews.
[6]At the hearing of the appeal counsel for the appellant referred to the transcripts of the police interviews marked for identification “A”, “B” and “C”. The relevant documents are the transcripts of the police interviews, as edited, which were before the jury, marked for identification “G”, “H” and “I”.
On Saturday 22 April 2017, the complainant was taken from near toilets at a school to hospital by ambulance in response to a telephone call by the appellant to emergency services. In that telephone call,[7] the appellant said he and the complainant had come down to kick a football around at the school. The complainant met a friend or someone. She left, saying she had to go to the toilet. After she had been gone for a long time, the appellant found the complainant in a toilet. He crawled underneath the door and dragged her out. The appellant told the operator the complainant and her friend had “ice or speed or some shit” and an overdose or a bad reaction or something. Subsequently, he said he did not know whether the complainant had taken ice or what she had.
[7]Exhibit 36 (CD), a transcription of which is marked “N” for identification.
A police officer who attended at the school recorded a conversation with the appellant.[8] The appellant said, “we went down and got fish and chips today and she’s come back from that … didn’t seem right … I did’nt know what was wrong … bitten my [sic] something or that … Come down yesterday afternoon ... Kick a footy around … We climbed over the side fence … Walked through … There’s a kickin’ area at the back there … that toilet block where I found her … She’s asked to go to the toilet. She climbed underneath the door … I’ve walked over.” The appellant said he yelled out and did not get a response. He heard moaning and groaning and found the complainant inside the toilet. The complainant was on the ground twitching. The appellant called the ambulance. The appellant said he had no idea what had happened to the complainant. He said he had found a clipseal bag in her front pocket. He said, “she said she got bitten … by somethin’ … on her right arm. I didn’t think nothin’ of it. I went down to get fish and chips, um, pack o’ smokes, for [the complainant’s mother] and meself and … drinks.” The appellant said the complainant mentioned she had been bitten. When asked if he knew whether the complainant took drugs or anything, the appellant responded that he did not and wouldn’t think so.
[8]Transcript 3- 45 and exhibit 24 (CD), a transcript of which is marked “L” for identification.
The first police interview was conducted on the following day, Sunday 23 April 2017, at the hospital. The second police interview was conducted on the same day about seven hours later at a police station. The third police interview was conducted on 17 May 2017.
Count 6
In the first police interview,[9] the complainant said that at the toilet block near the school “someone drugged me up”. The interviewer asked the complainant to tell everything about the person who had drugged her up. Before the complainant answered, the interviewer asked a different question about what had happened. The complainant did not remember and did not know why she did not remember. When asked what the complainant could remember, the complainant said “he drugged me up”. The complainant went on to describe a man giving her a needle with ice in it and putting it into her arm. The needle was red and white. She did not know what ice was. It made her go all weird. This happened at the toilet block near her mother’s house, which was near the school. When asked who “he was”, the complainant responded, “Gavin Hearn”. Gavin was best “mates with mum”. He lived with his mate named Jason and Gavin had taken her to his place “heaps of times”.[10] He lived in units on The Strand near the rock pool.[11]
[9]First police interview at pp 4 – 8, 18 – 21, 30, 34 – 37.
[10]First police interview at p 13.
[11]First police interview at p 12.
When asked by the interviewer “how did he put it in you”, the complainant responded, he grabbed her arm and “just shove[d] it in there”, she felt nothing, “But the second one he did, that was worse”.[12] After the complainant explained that the “first one” referred to the event at the shop (count 2) and the “second one” referred to the event at the toilet block (count 6), and made statements about the first one, the interviewer asked questions about the second one.[13] The complainant said when “he did the second one” she couldn’t walk and “he tried to have sex with me”.[14] The man gave her that needle before he licked her vagina (count 4).[15] The complainant told him not to put the needle in there because her mother would find out and then she would get up him.[16] The needle hurt when it went into her arm. After he put the needle into her arm he said they were going to have sex.[17]
[12]First police interview at p 5.
[13]First police interview at pp 6 – 8.
[14]First police interview at p 8.
[15]First police interview at p 18.
[16]First police interview at p 20.
[17]First police interview at p 21.
In the second police interview, when the complainant was asked to tell everything that happened on the previous day, she answered, “I don’t remember”. When asked what she did remember had happened on the previous day, the complainant said, “He gave me ice that’s all I can remember”.[18] The complainant was asked who “he was”. She identified the appellant by his first and last name and said he was her mother’s friend.[19] They walked to the toilets and went in, the appellant took her clothes off and his clothes off, he “put more ice in me”, the appellant wanted to have sex and he asked her to have sex with him.[20] The appellant put the needle in her arm.[21] She went all weird, she could not see, and she could not stand up. When she tried to stand up she fell back on the floor. The appellant was trying to help her by trying to hold up her back.[22] The appellant rang the ambulance. She knew that because “he told me that he rang the ambulance because I died four times”.[23] The ambulance came “then I died then I had to put water on my face”.[24] The complainant said the appellant found the needle on the floor, he picked it up, and he used it on the complainant but not on himself.[25]
[18]Second police interview at p 2.
[19]Second police interview at p 2.
[20]Second police interview at p 14.
[21]Second police interview at pp 10, 24 and 25.
[22]Second police interview at pp 25 and 26.
[23]Second police interview at p 26.
[24]Second police interview at p 27.
[25]Second police interview at pp 28 – 29.
Count 2
In the first police interview, the complainant told police that on the day before the interview “he did the first one” whilst they were waiting for their fish and chips at the shop in Cranbrook.[26] At the time she was sitting next to him, he said it was not going to hurt, and it did not hurt.[27] It made her feel weird. The complainant said she was starting to get in trouble by her mother because her mother had told him he was not allowed to give her any drugs but he did. After he had given her the drugs at the shop they got the chips, went home where they listened to music, and then they went to the toilet block. The needle he put in her arm had ice in it because he had told her it was ice.[28] The complainant saw that the stuff got into the needle with water, and she had seen the ice, which was white and looked a bit like salt, in a bag.[29]
[26]First police interview at p 6.
[27]First police interview at p 7.
[28]First police interview at p 30.
[29]First police interview at pp 34 – 35.
In the second police interview, the complainant again said all she could remember was that he gave her ice, but she again gave more details of the events.[30] After she and her sister had been watching something at her house, where her mother and grandmother and the appellant were also present, she and the appellant walked to the fish and chip shop. They walked out to the back of the fish and chip shop. The appellant put the needle in her arm at a place which she indicated during the interview. The ice was white and in a bag the appellant had in his pocket. He put the white stuff in a needle with water and put the needle in her arm. Her arm bled. The appellant had band-aids in his pocket and he put a band-aid on her arm. After putting a needle in her arm he put the needle back in a bag. They got the fish and walked home, where they ate their fish before going to the toilet block where counts 3 – 6 were alleged to have occurred.
[30]Second police interview at pp 2 – 12.
Count 3
In the first police interview the complainant said they went to the toilet block, that’s “when he did the second one” (count 6), she could not even walk, “and then he tried to have sex with me”. When they got to the toilet block the appellant took her shoes and clothes off and wanted to have sex with her; “and then he done it just the drugs he gave me … They were making me feel weird.” The interviewer asked the complainant what happened to her. She responded, and repeated in response to similar questions, that she said “no” when the appellant asked her to perform oral sex on him. The appellant got “shitty”, yelling at her because she wouldn’t do it.[31] When the appellant told the complainant he wanted her to perform oral sex on him, the complainant was lying on her back on the floor, the appellant was lying on top of her, and he kept telling her she had to perform oral sex on him.[32]
[31]This account is in the first police interview at pp 8 - 10.
[32]First police interview at pp 24 – 25.
The complainant described the clothes she was wearing when she and the appellant went to the toilet block. The appellant took off her shoes and all of her clothing. The complainant also described the appellant’s clothes and said he took off all of his clothes.[33] The appellant told the complainant to sit on the ground but she remained standing until the appellant pulled her by her arm onto the ground.[34] After that, the appellant gave her the second injection (count 6). It hurt the complainant when the appellant pulled her to the ground.[35]
[33]First police interview at pp 13 – 17.
[34]First police interview at pp 17 – 18.
[35]First police interview at p19.
In the second police interview the complainant said she did not have her mobile phone on her; it was at home, and her little sister was on it, as she always was.[36] The complainant and the appellant walked to the toilet, which involved jumping a little fence. The appellant opened the door and went into the toilets. The appellant took off her clothes and his clothes. He put more ice in the complainant (count 6).[37] After that he said to perform oral sex on him. She said no “And then he made me do it … [perform oral sex on him] …”. The complainant said the appellant grabbed her neck and he pulled her up to his penis and told her she had to suck on it.[38]
[36]Second police interview at p 33.
[37]Second police interview at pp 13 – 14.
[38]Second police interview at pp 19 – 20.
Count 4
In the first interview the complainant said that the appellant got “shitty” and was yelling at her because she wouldn’t perform oral sex on him and then he licked her vagina whilst she remained lying on the floor.[39] The appellant said he likes doing it. The complainant did not want him to do that and told him to get off her. She tried to push him off. She could not walk because of the needle, and he did not get off her.[40] The appellant was licking outside and inside her vagina.[41] The complainant also said in the first and second police interviews that the appellant was sucking on her breasts.[42]
[39]First police interview at pp 10 – 11 and 25.
[40]First police interview at pp 25 – 26.
[41]First police interview at p 27.
[42]First police interview at p 18; second police interview at p 21.
Count 5
In the first police interview, the complainant said that while she was lying on the floor, the appellant put his penis into her vagina.[43] Half of the appellant’s penis went into the complainant’s vagina. The complainant did not want him to do that. At the time she was telling him to get off her but he did not.[44] For about half an hour the appellant was on top of her and put half his penis in her vagina.[45] The complainant could not remember why he stopped. The appellant went out and rang the complainant’s mother; the complainant knew that because her mother told her.[46] In the second police interview, the complainant said the appellant was putting his penis into her vagina for ten minutes.
[43]First police interview at pp 27 – 29; Second police interview at pp 20 – 22.
[44]First police interview at p 30.
[45]First police interview at p 28.
[46]First police interview at p 32-33.
Count 7
In the third police interview on 17 May 2017, [47] the complainant described conduct of the appellant on the preceding Friday (which was 12 May 2017).
[47]Third police interview at pp 1 – 29.
The complainant initially spoke about the appellant taking her to Charters Towers where the appellant’s “mate wanted to have sex with me” and “tried to have sex with me”, but the complainant seemed unable to say what had happened.[48] When asked about what happened before the appellant took the complainant to Charters Towers, the complainant said she had run away from where she was staying in a shelter home in Garbutt. She walked to the water park on The Strand in the afternoon. The appellant rang her and said she would have to meet him at the water park. When they met there, the appellant took her to his mate’s house near the water park. It was a one bedroom unit containing a living room with a red two-seater lounge, a bathroom with a white chair, and a blue curtain near the back door.[49] When the complainant walked in Peter was at the door and said hello.[50] The complainant and the appellant said hello. It was the appellant’s idea that the complainant have a shower; he told the complainant he wanted her to have a shower and she agreed; at that time Peter was not home.[51] The complainant walked into the shower room and shut the door. No one else was in the room. While she was having a shower, the appellant came into the room and took off his clothes. The appellant said to the complainant “start to have sex with me”.[52] She said no. He “kept saying I don’t a wee, wee up the bum” whilst he was in the shower with her and “that’s all he said”.[53] He was touching her vagina and playing with her breasts. He touched her with his penis on her vagina.[54] That happened when she was in the shower lying on her back. The appellant had told her to get onto the ground. She kept saying no and the appellant pushed her down onto the ground. He lay on top of her and his penis was touching the top of her vagina whilst he kept saying he wanted to have sex with her.[55] The appellant was on top of her for 20 minutes.[56] After that, the appellant got out of the shower and put his clothes on, leaving the complainant in the shower.
[48]Third police interview at pp 4 -5.
[49]Third police interview at pp 9, 20 – 23, 28.
[50]Peter Brooks gave evidence in [57] of these reasons.
[51]Third police interview at p 26.
[52]Third police interview at p 14.
[53]Third police interview at p 14.
[54]Third police interview at p 15.
[55]Third police interview at pp 16 – 18.
[56]Third police interview at p 19.
When the appellant got out of the shower he said they were leaving town.[57] After the complainant had got dressed and made a meal in the kitchen Peter came home. The complainant and the appellant went to Charters Towers.[58] She took with her some other clothes she had, but no shoes. She also took her phone, but it had no charge and she did not have a charger.[59]
[57]Third police interview at pp 19 – 20.
[58]Third police interview at pp 25 – 26.
[59]Third police interview at p 29.
Count 1
In the first police interview, after the complainant discussed conduct by the appellant on the previous day, the interviewer asked the complainant if this was the first time the appellant had done something like this to her. She responded, “No. Second time”. When asked if she remembered the first time, the complainant answered, “No. Only this time”. The interviewer then returned to questions about other offences.[60] At a much later point in the first police interview, the complainant said “No” when asked whether what she had described was the first time that the appellant had tried to have sex with her.[61]
[60]First police interview at p 10.
[61]First police interview at p 31.
In the second police interview, after the complainant described conduct by the appellant on the preceding day, she was asked whether anything had happened with the appellant at other times. The complainant said she was asleep. She was wearing underwear, bra, shorts and a shirt. She was lying on her back on her little sister’s bed. At about midnight she woke up and saw the appellant next to the bed. He was playing with her vagina. When asked to say what the appellant was doing, the complainant responded that the appellant “put his fingers in my vagina”. When the complainant woke up she said “what you doing and he said his he like it”; “He kept saying he like it”. The complainant did not say anything else to him.[62] The complainant said the appellant engaged in that conduct when she was 15, in a period when the appellant lived in her house for two months until her mother kicked the appellant out, and at a time when the complainant’s mother was taking the complainant’s little sister to her father and no one was home.[63]
[62]Second police interview at pp 35 – 39.
[63]Second police interview at pp 34, 38, 40.
As an interim summary of the effect of the evidence of the police interviews, I observe that in response to open questions the complainant described in detail the conduct charged against the appellant in each count and as particularised by the Crown, and the circumstances in which the appellant engaged in that conduct, including that the complainant did not consent and clearly conveyed to the appellant that she did not consent to the conduct charged in counts 1, 3, 4, 5 and 7.[64] As was acknowledged in the submissions for the appellant, the police interviews comprehended evidence of each element of each offence of which the appellant was convicted.
[64]Absence of consent by the complainant is not an element of the offences charged in counts 2 and 6.
On 24 April 2017 (which was two days after the alleged offences and the day after the first and second police interviews), in the presence of a police officer the complainant’s mother participated in a pretext telephone call with the appellant.[65] In response to enquiries by the complainant’s mother about what had happened with the complainant, the appellant said that he did not know and “she told me that fuckin’ Chris …, told me that Chris … [INDISTINCT] the other night and she tried tellin’ me, she told me that she did dope and shit”. When the complainant’s mother enquired what had happened when the appellant came and got the complainant and where he took her, the appellant replied, “[Complainant’s mother’s first name] [INDISTINCT], listen to me. I [INDISTINCT] the fuckin’ hospital and shit, didn’t we?”.[66] In response to questions by the complainant’s mother about drugs, the appellant said he did not know why the complainant had drugs in her system. He objected to an insinuation that he did anything like that. He told the complainant’s mother he loved her, her mother, and the complainant. He said that when he was at the complainant’s mother’s place the other day the complainant “was rabbitin’ on somethin’ about fuckin’ Chris”. He denied having put a needle in the complainant’s arm, and said he would not do that to her.[67] The appellant said, “I don’t know what went down. [INDISTINCT] went to the toilet and that was, and that’s how I found her”[68] and “well, I can tell ya [complainant’s mother] truthfully, I know nothing about how she got [INDISTINCT] the other night, that toilet”.[69]
[65]Exhibit 23 (recording of the pretext telephone call), a transcript of which is MFI “J”.
[66]MFI “J” at p 5.
[67]MFI “J” at pp 5 – 6.
[68]MFI “J” at p 6.
[69]MFI “J” at p 8.
The complainant gave pre-recorded evidence more than three years later, on 1 September 2020. In examination in chief the complainant was referred to the recordings of the police interviews and the following exchange occurred:
“And were you trying your best to tell the truth in those recordings? --- Yeah
Okay. Was what you told the police in those recordings the truth? ---No.
What wasn’t the truth [the complainant]? --- That he didn’t do it.
That he didn’t do it. Is that what --- ? --- Yeah.
Who do you mean? --- Gavin.
And what didn’t he do? --- He didn’t touch me.”[70]
The complainant did not explain how her agreement with the proposition that she was trying her best to tell the truth in the recordings (in which she made many statements that the appellant had touched her genitalia) could be reconciled with her denial that the appellant had touched her.
[70]Transcript 1 September 2020 at 1 – 8, 1 – 9.
In further examination in chief, the complainant gave evidence that she did not know where the Cranbrook Fish and Chip Shop was. She did not remember speaking to police about things happening at a toilet block, watching and hearing about things happening at the toilet block in the recording she had watched on the day before her evidence, the prosecutor showing her photos of a toilet on the same day, picking a particular photo out of a bunch of photos the same day, or talking to police about meeting the appellant at a fast food shop. The complainant denied having been to the place shown in the photo.
In cross-examination, the complainant comprehensively denied the appellant had done any of the things she had said he had done in her three police interviews. For example (count 1):
“Gavin would never come into your room by himself, would he? --- No.
And he would never take care of you when your mum wasn’t around, would he? --- No.
Your mum would always be at home when Gavin was there; that’s right, isn’t it --- Yeah, that’s right.
But from time to time, you and Gavin might go down to the service station or the shops together? --- Yeah
And your mum wouldn’t be with you all the time when that happened? --- No, not all the time.
Yeah, but when you were at home with Gavin Mum was always there; is that right? --- Yeah, that’s right.
Okay. Just to be very clear, Gavin never came into your room when you were sleeping? --- No.
He never touched you with his hand on your vagina? --- No.
And he never put any of his fingers in your vagina on any occasion? --- No.”
This passage reflects a theme of the cross examination that, with very few exceptions, every question was in the form of a suggestion, with which the complainant agreed.
In relation to count 2, the complainant said she did not remember going to Cranbrook Seafood with the appellant, she initially denied that there were days when she and the appellant would go and get fish and chips or go to the shop. When defence counsel suggested there was a time when she and the appellant went to the Cranbrook Seafood shop together, the complainant agreed it happened once, she remembered “that time” when they went together to the seafood shop and ordered some fish, they went to the service station and bought some lollies and a bottle of water, they returned to the fish and chip shop, and the appellant asked the person at the shop whether the food was ready.
The complainant agreed with detailed suggestions about what had occurred at the fish and chip shop (count 2):
“And when you were at the fish and chip shop, Gavin noticed that you had a BAND-AID on your arm, didn’t he? --- Yeah.
And it was towards the top of the arm near your bicep, which is above your elbow; is that right? --- Yeah.
And he asked why it was there? --- Yes.
And did you tell him, “Chris tried to give me something”? --- Yes.
And did you tell him, “Chris tried to sleep with me”? --- Yes, that’s right.
And then Gavin pulled out from his pocket a plastic bag and showed you that and he said, “Does it have the same purple line as this one?” Do you remember that? --- Yeah.
And you told him that he did; is that right? --- Yeah.
Then you got the fish and chips and you went home; is that right? --- Yeah. Yeah, that’s right.
Now, when you were at that fish and chip shop on that occasion - - -? --- Yeah.
- - - you and Gavin never walked around the back of the fish and chip shop, did you? --- No.
And Gavin never gave you – never injected anything into your arm while you --- ? --- No.
--- were at the fish and chip shop, did he? --- No.”[71]
[71]Transcript 1 – 19.
The complainant agreed that after they got the fish and chips they returned to the complainant’s house, the fish and chips were served, the complainant went to her bedroom, and the appellant subsequently refused the complainant’s request to go for a walk and kick a football. The complainant agreed with the suggestion that at about 5 pm the appellant and Eddie left the house to get more food for dinner and at some point after that the complainant left the house by herself and went to the park. She said Chris was with her at the park. Subsequently she responded to a text message from the appellant telling her she needed to come home now and asking why she was not answering her phone; the respondent replied, “Yeah, Dad. My phone.”[72]
[72]Transcript 1 – 21.
The complainant agreed with a series of suggestions which contradicted statements in the complainant’s police interviews upon which counts 3 – 6 were based: the appellant rang the complainant and asked where she was; and she said she was at the park and was coming; the appellant told her to wait where she was; at that time, the complainant was in the passenger seat of a red car with Chris; the appellant walked down, saw the complainant in the car, and yelled out “Oi”; she looked towards the appellant and yelled out “Dad, stop the car.”; the driver drove to the end of the street and the complainant got out of the car; when then asked whether the complainant got out of the car or was pushed out of the car, she answered, “I was pushed out of the car”, she answered “Chris” to the question who pushed her out; whilst in the car Chris gave her drugs by putting a needle in one arm; that happened ten minutes before the appellant arrived; the complainant told the appellant she needed to go to the toilet immediately; then they jumped the fence and went into the school.
The complainant was then unable to give a responsive answer to a question which departed from the general theme of questions which suggested the answers:
“Do you remember how high that fence was? --- It wasn’t high. It was – I don’t know.” [73]
When asked whether she had any difficulty getting over the fence, the complainant said “No”. When asked whether the complainant was cut or scratched or anything like when climbing the fence, she answered “Yeah” and she thought it was the wood. The complainant agreed with suggestions that the appellant told the complainant to go to a particular toilet, she said she needed to go to a real toilet, they walked around the school until they found some toilets, the complainant went into the toilet, and the appellant waited outside the toilet. She agreed that the appellant asked her if she was okay and she remembered saying to the appellant, “Where are you, Dad? I can’t see”.[74] She agreed with other suggestions which contradicted the conduct alleged in counts 3 – 6. She agreed that in the week before she had sexual intercourse with Chris. The complainant used the same expression in that suggestion, “A week”, in her answer to the subsequent question enquiring how many days before this occurred she had sex with Chris.[75]
[73]Transcript 1 – 22.
[74]Transcript 1 – 23.
[75]Transcript 1 – 23.
Similarly, the complainant agreed with suggestions in cross examination which contradicted her statements in the police interviews upon which count 1 was based:
“Then you went into Peter’s shower and you had a shower by yourself? --- That’s right.
You asked Gavin if he could stand near the door of the shower, but he didn’t come inside the shower? --- No.
He never came into the bathroom when you were at Peter Brook’s house, did he? --- No. No.
And he was never watching you when you were showering either, was he? ---
He never touched you or took your clothing off? --- No.
You agree he didn’t do either of those things? --- No, he didn’t do it. No.
And he never said anything like he was going to, “Root you up the bum”, did he? He didn’t say that? --- No. No.
And he never played with either your vagina or your breasts then? --- No.
And he never put his penis on top of your vagina, did he? --- No.”[76]
[76]Transcript 1 – 25.
The complainant agreed that she did not go with the appellant to Charters Towers and she had never stayed at Garbutt Park. She agreed she had told the appellant on a number of occasions that she loved him and she did so because he was like a Dad to her. She agreed that both times when she spoke to police her mother and the appellant were fighting, they were having continuous arguments, and she was scared.
There followed this exchange:
“And you were scared and you felt like Gavin should go? --- Yeah. That’s right.
What do you mean by, “Gavin should go”? --- I don’t know.
And I suggest that because you felt scared you went along and that’s the reason you spoke to police about these allegations? --- That’s right.
Can you just confirm that that’s a yes? --- Yeah. That’s yes.
Okay. And the reason you spoke to the police was because you were upset with Gavin being around you. Is that right? ---Yeah.
Is it because you wanted Gavin to go? --- No.”
The question, “What do you mean by “Gavin should go”?”, was another of the very few questions asked in cross examination which did not suggest an answer. The complainant’s answer to that question might reasonably be regarded as undermining whatever weight otherwise might be attached to the complainant’s answer to the preceding question by which the complainant agreed she felt the appellant should go.
The cross examination concluded with suggestions, with which the complainant agreed, that the complainant was upset by the appellant and her mother fighting, for that reason she made up her allegations, the appellant never touched her in a sexual way or had sex with her, he never put his penis into her vagina, he never injected her with drugs, and he never used any needles on her arms. In re-examination, the complainant was unable to supply any information about “Chris” other than that his name was Chris and she had met him at her mother’s house.
In addition to giving conventional directions about the jury’s fact-finding task, the trial judge gave strong directions to the jury about the conflict between the complainant’s evidence in the police interviews and her pre-recorded evidence, and about the significance of her intellectual disability. Greater care was needed when considering the out of court statements that were more damaging to the appellant than the evidence she gave under oath. The statements made out of court “are not in the same category as sworn evidence before you”.[77] The complainant had sworn they were not true. The effect of the complainant’s intellectual capacity upon her capacity to communicate, understand questions, process information, and provide answers, created a risk her evidence might be the result of misunderstanding or miscommunication, rather than based on truth, accuracy and reality. The jury should approach the complainant’s evidence with special care, and act on it only if the jury were convinced of its accuracy. It would be dangerous to convict the appellant on the evidence if the jury could not find other evidence supporting it. The jury should only act on the complainant’s evidence in her unsworn statements “if after considering it with the warnings I have given you in mind and all the other evidence you are convinced of its truth and accuracy”. The trial judge directed the jury that to find the appellant guilty the jury would have to be satisfied beyond reasonable doubt that the sworn evidence she gave was not accurate or reliable, that is, untrue, and that such satisfaction alone would not permit the jury to find the defendant guilty; the jury would also have to conclude beyond reasonable doubt that the statements made in the unsworn police interviews were reliable and accurate, that is, true.
[77]Summing up at p 27.
The jury must have concluded both that the complainant’s recantations in her pre-recorded evidence were untrue beyond reasonable doubt and that, notwithstanding that evidence, there was no reasonable doubt that the complainant’s evidence of the offences in the police interviews was true. For the following reasons, those conclusions were reasonably open to the jury.
Before discussing evidence which supports the complainant’s inculpatory statements in the police interviews, I will refer to evidence which more directly relates to the complainant’s recantation of those statements. This evidence includes recordings of telephone calls made by the appellant whilst he was in custody awaiting trial.[78] There were 19 recorded telephone calls, [79] each of which occupies some minutes. In most of the calls the appellant first speaks to the complainant’s mother, who then gives the telephone to the complainant. In the conversations with the complainant, the appellant repeatedly tells her he loves her. She often replies with the same or similar words. In some of those conversations the appellant tells the complainant he is writing about her in his diary. The conversations between the appellant and the complainant’s mother include discussion of the proceedings against the appellant and statements by the appellant which evidence frustration with the proceedings and a strong desire to be released from prison. There are also telephone conversations between the appellant and unidentified men.
[78]Exhibit 42.
[79]The telephone calls are numbered 1 – 21 except for numbers 4 and 15, of which there is no record.
Of particular relevance to the present topic are statements in the recorded telephone conversations about how the appellant’s release from prison might be secured. I will refer here only to the most significant statements upon that topic:[80]
[80]The appeal record does not include a transcript of these conversations. The Court listened to the relevant recordings. Some parts of the conversations are difficult to hear and some are inaudible to me. My rendition of statements in those conversations substantially accords with the summaries by counsel for the appellant in his oral submissions.
| Call 10 (2 September 2018) | After reference to a (future) pre-trial recording, where the police would interview “the girl”, the appellant said, “The cops will [expletive] interview [the complainant] I suppose and then she will have to, [expletive] you know”, the complainant’s mother said, “she will just tell them no”, the appellant agreed and he said he should be out on the 2 October. |
| Call 11 (2 September 2018) | After the appellant suggested the case might be rejected by 2 October, the complainant’s mother asked whether “they” were going to “talk to us” and the appellant said “yeah, that’s what’s going to happen”, and the appellant added that he then would be out. Subsequently, the appellant said, “that Chris and Kylie, got to say them”, “Chris and that Kylie”. |
| Call 12 (8 September 2018) | After discussion about someone giving another statement, the complainant’s mother said, “Why can’t … make a [or alternatively, “another”] statement saying you didn’t do it?”. The appellant said, “Yeah, do that”, “you’re going to have to tell them that Kylie and that [expletive] Chris [expletive]”. The appellant blamed Kylie for the complaint, Chris for giving [expletive] to the complainant and said Kylie was being cruel to the complainant’s mother. |
| Call 13 (8 September 2018) | The appellant said to the complainant’s mother, “I spoke to me mate today and he said that if you probably did go and do that [expletive] … what you said you were gonna” and “but if you went and did that, they would have to pull the statements.” |
| Call 14 (13 September 2018) | The appellant said he hadn’t heard from the lawyers, “it might nullify itself out by the 2nd” and “she wasn’t going to go through with it”. |
| Call 16 (23 September 2020 [sic])[81] | The appellant referred to “Kylie” and said to the complainant’s mother “[Kylie] is the main cause of all this”. The appellant referred to his mate getting out of jail tomorrow and the appellant had asked him to do a few things for him when he gets out of jail. When the phone was handed to the complainant, the appellant said, “Be careful” and “Nothing stupid”. |
| Call 17 (28 September 2018) | The appellant said to the complainant’s mother, “If they get hold of this here, I’m fucked”, “I’ve tried perverting justice, see, you know, by trying to get you to say whatever. You know what I mean. It’s [expletive] pretty hefty charge on its own.” |
| Call 18 (2 October 2018) | The appellant said to the complainant’s mother, “If we can get through this, I’m prepared to give it a go”, “as long as you stand by me now, I’ll stand by you later”, and “that’s me promise”. |
| Call 19 (18 September 2019) | This call was between the appellant and an unidentified man (“UM”). It included the following statements: UM: “I’ve been onto your girl. … She’s going to do everything, but she’s not back yet.” … UM: Inaudible. Appellant: “I’m glad you are” and “I’ll get out” [inaudible]. UM: “I need her there. I’ve got a thing here to write out … run her through it and then get her to take it to whatever lawyer you’ve got.” … After the appellant and the unidentified man said “she” loved the appellant: … UM: “I don’t know what happened, I just know what needs to be done and if you do it, we can get our boy out” … UM (in a high voice, seemingly intended to mimic or ridicule the voice of a girl): “I want to get my Gav out”. UM (in his usual voice): “I said yeah well do what you are told.” |
| Call 20 (25 June 2019) | This call is between the appellant and an unidentified man. After the appellant asked the man to tell someone and his girl that he loved them, the unidentified man replied that he just told them that every day. |
| Call 21 (27 November 2019) | The appellant said to the complainant’s mother, “I didn’t do anything” and he was coming home for Christmas. The appellant then said, “Ball’s in your court. It all depends on, what’s, you know. I’ve got me mate getting out next Friday anyway and I’ll leave a note with him. I’ll get him to ring you.” |
[81]This date presumably should be 23 September 2018, notwithstanding the parties’ admission that the dates of the call files, recorded on labels on the disc, are correct: ARB 2, p 365.
Counsel for the appellant argued the statements I have quoted from call 17 referred to the fact (of which the complainant’s mother gave evidence) that the complainant’s mother used a false name so the correctional centre would allow her to contact the appellant. It was plainly open to the jury to reject that interpretation. Counsel for the appellant also argued that the prosecutor’s failure to put to the complainant’s mother that she had participated in influencing the complainant’s evidence[82] left a gap in the evidence relied upon by the prosecutor as proof that the complainant’s recantation resulted from the appellant’s manipulation of the complainant. No ground of appeal contends that there was any unfairness resulting from the omission of the prosecutor to ask the complainant’s mother (or the complainant) any question upon the topic. The recorded telephone conversations are strong evidence that the appellant arranged for pressure to be brought upon the complainant to say in her pre-recorded evidence that the appellant had not done what she had said in her police interview he had done, whilst at the same time encouraging the complainant’s affection for him by statements that he loved her. The jury could regard that evidence as explaining why the complainant recanted her evidence against the appellant in the police interviews.
[82]Counsel cited R v Smith (No 2) (1995) 64 SASR 1 at 17 for the proposition that upon the complainant’s mother being declared to be a hostile witness the prosecutor had a right to cross examine her at large.
There is other evidence which, when taken together with the evidence of the appellant’s phone calls from the prison and the other evidence in the Crown case, justified the jury in finding that no weight should be given to the exculpatory version accepted by the complainant in her pre-recorded evidence.
One significant aspect of the complainant’s exculpatory evidence is inconsistent with objective evidence. The complainant agreed with suggestions in cross examination (see [31] and [32] of these reasons) that in the afternoon of 22 April 2017 she answered a telephone call from the appellant when she was a passenger in a car driven by “Chris”.[83] Upon the version accepted by the complainant in cross examination, the resulting telephone conversation was the only explanation of how the appellant found her after “Chris” had injected her with drugs. A Telstra outgoing call record[84] listed outgoing calls from the appellant’s telephone number registered to Telstra in the name Gavin Paul Firch (sic) for 22 April 2017.[85] That record, as explained by an employee of Telstra Corporation,[86] revealed that after about 15 minutes after midnight on that day, no telephone calls originated from the appellant’s telephone number except for calls to recover messages and calls to Emergency Services shortly before 6 pm and at about 7 pm. Cross examination of the witness established that a message sent using internet data would not appear on the Telstra outgoing call record, but there is no evidence that the appellant sent any relevant message or made any relevant phone call using internet data.
[83]Transcript 1 – 21.
[84]Exhibit 26.
[85]Exhibit 26 at pp 19 – 20.
[86]Transcript 3 – 53 to 3 – 57.
The jury also could take into account that the version put in cross examination that the complainant left the house by herself after the appellant had earlier left the house, the appellant and the complainant next saw each other whilst the complainant was in a car driven by “Chris”, the complainant joined the appellant when she got out or was pushed out of that car, and the appellant took the complainant to a toilet and waited outside until she sought his assistance (see [31] – [33] of these reasons) was inconsistent with the accounts given by the appellant in his telephone call to Emergency Services on 22 April 2017 (see [6] of these reasons), to the police officer who attended the school on the same day (see [7] of these reasons) and to the complainant’s mother on 24 April 2017 (see [25] of these reasons, particularly the last sentence).
The jury also could take into account that upon the face of the transcripts the quality of the complainant’s pre-recorded evidence is inferior to the quality of her evidence in the police interviews. In the police interviews, the first two of which were conducted on the day after counts 2 – 6 were allegedly committed and the third of which was conducted five days after count 7 was allegedly committed, the complainant gave detailed and substantially consistent accounts in response to open questions by the police officers who interviewed her. In her pre-recorded evidence, which was conducted more than three years after all of the offences were allegedly committed, with few exceptions the complainant’s evidence amounted merely to agreement with detailed suggestions by defence counsel. Whilst some questions asked by the prosecutor did not suggest the answers, the complainant’s answers to those questions were brief and general, some answers were unpersuasive upon their face (see [26] of these reasons), and in other answers the complainant merely said she did not know (see [27] of these reasons).
There was evidence in the Crown case which supplied support for important aspects of the complainant’s account in the police interviews:
(a)An emergency registrar in the Townsville Hospital gave evidence that on 22 April 2017 the complainant was brought to the hospital by ambulance between about 9 pm and 9.30 pm. The doctor conducted a physical examination of the complainant. She found small pin prick marks surrounded by a little bit of bruising or erythema in the crease of both elbows of the complainant’s arms [87] and a small band-aid covering the pin prick mark on the inner crease of the complainant’s right elbow. That evidence, taken together with the evidence that amphetamine and methylamphetamine were found in the complainant’s blood,[88] supports the complainant’s account that she was injected with dangerous drugs on two occasions, as charged in counts 2 and 6, although it does not assist in identifying the offender.
(b)A nurse practitioner gave evidence that she examined the complainant on 23 April 2017. The nurse observed a red lineal scratch about one centimetre on the inner third aspect of the right side vaginal wall and the complainant had pain when touched in that area with a swab.[89] The nurse considered that the scratch to the inside of the vaginal wall was consistent with penetration of the vagina by something, including a finger or a penis.[90] In the nurse’s opinion, the scratch was unlikely to be older than 24 hours.[91] This evidence supports the complainant’s account of the conduct alleged in count 5, although it does not assist in identifying the offender.
(c)The nurse practitioner observed bruises on the complainant’s inner ankle, foot and right knee. The complainant said she did not know she had those bruises. There was bruising on the left upper inner arm to the mid-top of the arm and a triangular shaped area of purple bruising above the left inner aspect of the elbow. On the right arm there were three areas of bruising. There was a large purple and red bruise on the upper inner arm, with several horizontal lines of deeper purple bruising at the lower edge of the area. There were bruises on the outer elbow, and also an inner abrasion or a scratch. There was a bruise on the complainant’s right upper wrist and bruises on the left lower neck. The nurse also observed a redness or flushing appearance on the complainant’s left cheek, a bruise on her right chin, and a small abrasion or scratch in that bruise, and a bruise on the outer left shoulder. The complainant’s police interviews and her evidence do not explain the origin of all of this bruising, but it is generally consistent with her account of having been sexually assaulted on the floor of the toilet block against her will and injected with drugs.
[87]Transcript 2 – 21 to 22.
[88]A blood sample taken from the complainant on 23 April 2017 revealed the presence of amphetamine and methylamphetamine: admission in exhibit 31, item 7.
[89]Transcript 2 – 31.
[90]Transcript 2 – 32, 2 – 34 to 2 – 35.
[91]Transcript 2 – 31.
The Crown also relied upon evidence that the appellant had a sexual interest in the complainant. The evidence included CCTV footage of the appellant and the complainant at a fast food shop on 12 May 2017.[92] When the complainant was asked in cross examination whether at the fast food shop she was hugging and kissing the appellant and he was giving her piggybacks she answered “No”. She gave the same answer when asked, “you don’t remember that”. She agreed to the subsequent question asking whether hugging and kissing and giving piggybacks was something the appellant used to do with her from time to time at her house. When asked why she would do that with the appellant she answered, “I don’t know”, but she then agreed with the suggestion that it was because she was close to him and he was like her dad. The jury could regard the complainant’s pre-recorded evidence upon this topic as unreliable, having regard to the internal contradictions within it. The evidence also included the appellant’s many protestations of love of the complainant in his recorded telephone calls from the prison.
[92]Exhibit 38.
Counsel for the appellant submits that the CCTV footage and the appellant’s protestations of love are consistent with an innocent relationship in which, unusually, the complainant called the appellant “Dad” and they horsed around together. That cannot be reconciled with the damning evidence of diary entries made by the appellant whilst he was in prison.[93] It is sufficient to refer to the entries in the diaries to which the prosecutor referred when opening the case and in the closing address to the jury:[94]
“[name of appellant] & [name of complainant] “MI BABY DOLL MI QUEEN. [name of appellant] & [name of complainant] I love you mi black beauty, mi sexy baby, I love YOU 4 EVER sweetheart your man, [name of appellant]. XOXO”
“I HOPE I SEE mi BABY GIRL. I WILL BE LOOKING FOR HER I LOVE YOU SWEETHEART. I WANT YOU SO SO MUCH. I WANNA HAVE SEX WITH YOU WHEN I GET OUT I WILL BE YOUR MAN.”
[93]Exhibit 41.
[94]Transcript 14/09/2020 at p 7 and transcript 18/09/2020 at 1 – 3. The first diary entry is undated. The second diary entry is dated 22 February 2019.
The prosecutor also adduced preliminary complaint evidence which was relevant in the jury’s assessment of the credibility of the complainant’s evidence.
The nurse practitioner gave preliminary complaint evidence the complainant said she had left her home with a man known to her and her mother. She had been assaulted in a toilet block at a school. She was on her back in the floor of the toilet block. Her clothes were removed by the man and he inserted a needle into her left and right upper arms and, and she believed he gave her a drug. The complainant told the nurse that the man made her fold her elbow after he attempted to inject a substance into her vein. The man held her down by her wrists, licked her breasts, inserted his fingers, and then his penis, into her vagina.[95] This evidence is generally consistent with the complainant’s account of the events at the toilet block, although there are some inconsistencies: the nurse attributed to the complainant an account that a needle was inserted into both arms at the toilet block (rather than one of the occasions occurring at the seafood shop) and the nurse attributed to the complainant a complaint of digital penetration and no complaint in terms of counts 3 and 4.
[95]Transcript 2 – 28.
A police officer gave evidence that he interviewed the complainant in the course of driving the complainant and her mother from the hospital to their home on Sunday 23 April 2017. As they were driving past the fish and chip shop the complainant “pointed out … where something had happened earlier in that day”.[96] The police officer, when asked to be as precise as he could about what the complainant said, replied that: “she said that’s where the defendant had injected her and sexually assaulted her”. The complainant named the person who did it as “Gavin”. Another police officer, who was driving the car, pulled over and “asked them to show him exactly where it’s occurred”. The car stopped where the fish and chip shop is and they went around to the back where there was an area with bins and things. The complainant pointed to that area.
[96]Transcript 4 – 9.
That police officer’s shift was between 3 pm and 11 pm that day. The police officer had not participated in the first police interview but participated in the second police interview. There is an inconsistency between so much of the police officer’s evidence as attributed to the complainant a statement that she had been sexually assaulted at the fish and chip shop and the complainant’s evidence in her police interviews. It was for the jury to decide how that inconsistency should be resolved. Furthermore, the record itself suggests there was a reasonable basis for the jury to prefer the complainant’s evidence in the police interviews upon this point: the statement attributed to the complainant was said to have been made at a time after the first police interview and before the second police interview; in those interviews the complainant was consistent in her account that she was sexually assaulted at the toilet block; and the complainant’s account in the police interviews was given in response to careful and patient questioning, but the police officer’s evidence does not convey a similar approach.
In relation to count 7, the complainant’s elder sister gave evidence that on 17 May 2017 (before the police interview on that date) the complainant told her the appellant had picked up the complainant from a fast food shop in Garbutt and had taken her to a unit on The Strand, which was one of the appellant’s mate’s units. The complainant said she went for a shower, the appellant came into the shower, he was having sex with her, “he put it up her bum”, she asked him to stop, but he wouldn’t.[97] The circumstance that the complainant’s sister gave evidence of a statement by the complainant of an act which the complainant did not state had occurred did not require the jury to harbour a doubt about the reliability of her account of the appellant’s conduct (charged in count 7).
[97]Transcript 4 – 29.
I have adverted to the evidence which I consider to be significant for the resolution of this appeal. For completeness I will advert to other evidence in the Crown case mentioned in the parties’ arguments.
Count 7 was alleged to have occurred in a unit in which Peter Brooks resided. Brooks gave evidence that he allowed the appellant to bring to his unit a young girl whose name Brooks did not know and who he had not met before. He described features of his unit that accorded with features described by the complainant. He said he left the unit for no longer than an hour and when he returned the appellant and the complainant were in the bathroom with the door closed. Brooks gave evidence of having identified one of 12 photographs shown to him by police as being a photograph of the appellant and he gave similar evidence of having identified the complainant.
Brooks also gave confessional evidence: at his kitchen table the following morning, after the appellant and the complainant had stayed at his unit overnight, the appellant explained how he’d had sex with the young girl in the shower; the appellant said he had sexual intercourse with her. Brooks maintained his version of events in cross examination. The admission attributed to the appellant that he had sexual intercourse with the complainant, and a detailed admission about how this allegedly occurred, does not accord with the particulars of count 7. Nor did Brooks give evidence of any admission by the appellant that the complainant did not give her consent to any sexual conduct by the appellant at the unit. Furthermore, defence counsel established that Brooks had a significant criminal record involving offences of dishonesty. Having regard also to the jury’s advantage in seeing and hearing Brooks and other witnesses give evidence, the inconsistencies between his evidence and the complainant’s evidence could not justify a conclusion that the jury was obliged to harbour a reasonable doubt about the complainant’s evidence of count 7 in the police interviews.
Upon examination of low vaginal and vulval swabs, spermatozoa was detected except on the vulval swab, which tested positive for the possible presence of seminal fluid. For the high vaginal swab and spermatozoa fraction, a mixed DNA profile was detected, indicating the presence of DNA from two contributors. One of the contributors was assumed to be the complainant. The amount of information obtained from the profiles was fairly limited. Whilst the appellant could have contributed the DNA, it was almost equally likely that the DNA might have come from a different person whose DNA coincidently happened to convey the same information.[98] In the result, the DNA evidence was capable of proving only that it was possible that the DNA found on the swabs matched the appellant’s DNA.
[98]Transcript 3 – 62.
In examination in chief the complainant’s mother initially gave evidence which contradicted statements by the complainant in the police interviews. The trial judge upheld an application by the prosecutor for leave to cross examine the complainant’s mother as a hostile witness. In cross examination by the prosecutor, the complainant’s mother contradicted answers she had earlier given. She agreed that statements in her sworn statement of 24 April 2017 were true. Those statements are substantially consistent with the complainant’s statements in her police interviews. The complainant’s mother agreed that whilst the appellant had been in custody at Townsville Correctional Centre, she organised telephone contact with the appellant by giving a false name to the Centre, and she facilitated regular contact by telephone between the appellant and the complainant over the following years. The complainant’s mother agreed she hadn’t wanted to give evidence against the appellant, despite her sworn statements. In cross examination by defence counsel the complainant’s mother agreed with many suggestions that were inconsistent with the complainant’s account in the police interviews and consistent with the version accepted by the complainant in her pre-recorded evidence.
The complainant’s mother’s evidence was summarised by the trial judge in summing up to the jury.[99] The trial judge told the jury that the prosecutor, “correctly, I think, and fairly, acknowledged to you in addresses that [the complainant’s mother’s] evidence is, in her terms, a train wreck”, and that there were “significant contradictions or inconsistencies” between what she said in evidence initially and what she considered she had told police in a signed and sworn statement on 24 April 2017. The jury’s verdicts demonstrates that the jury must have regarded so much of the complainant’s mother’s evidence as exculpated the appellant from the offences charged against him as being insufficiently credible to contribute to a reasonable doubt about the appellant’s guilt of any of the offences. That was plainly open to the jury, having regard to the evidence (the recorded telephone calls by the appellant whilst he was in the correctional centre) of the continuing relationship between the appellant and the complainant’s mother and, in particular, the many fundamental inconsistencies within the complainant’s mother’s evidence.
[99]Transcript 18 September 2020 at 15 – 17.
A neighbour of the complainant and her mother gave evidence that she knew them and the appellant. She gave evidence that in May 2017 the complainant told her the appellant had sex with her, there were needles where she was staying with him, and she was staying with him in yellow units near The Strand.[100] The neighbour gave evidence that the “first time” was at a fast food shop. The complainant rang her and told her she was meeting the appellant at a fast food shop in Garbutt; the complainant said the appellant was coming to pick her up from the fast food shop and she was going back with him to the units. The neighbour agreed that in the second phone call from the complainant, the complainant said she was staying at a unit near the water park at North Ward and the unit was yellow or blue. The neighbour gave evidence that the complainant said the appellant had sex with her in the unit.[101] The neighbour did not attribute to the complainant any statement upon the question whether the complainant did not consent to the appellant’s conduct.
[100]Transcript 3 – 48.
[101]Transcript 3 – 52.
Counsel for the appellant argued that the reference to having sex may not comprehend the conduct alleged in count 7. Nevertheless, it was open to the jury to regard the neighbour’s account as being generally consistent with the complainant’s statements in her police interview. However, the record does not clearly demonstrate that the complainant spoke to the neighbour before the complainant’s third police interview and, upon the neighbour’s evidence, the complainant spoke to her after the complainant’s first and second police interviews. Upon the face of the record, it is therefore not clear that the evidence given by the neighbour was admissible preliminary complaint evidence.[102] Defence counsel did not object to the evidence and no point about its admissibility is taken in this appeal. If the neighbour’s evidence were significant for the result of the appeal it would be appropriate to seek submissions about the point. My view being that it is not significant, I do not take it into account as support for the verdicts.
[102]See Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A(2), s4A(6) (definition of “preliminary complaint”).
Counsel for the appellant submits it is necessary to take into account some statements in the police interviews by the complainant which, he submits, reveal difficulties with the complainant’s credibility. It is argued for the appellant that the complainant’s initial answers recorded in [9] of these reasons, indicating that she could not remember what had happened, revealed inherent difficulties in her evidence. It was open to the jury to regard those initial answers as explicable by the circumstance that the complainant gave them towards the commencement of her first police interview, when she was in hospital, and in response to general questions about what “happened”. Furthermore, as counsel for the appellant acknowledged, the complainant’s inability to remember things at that time may have been contributed to by her having been injected with methylamphetamine; it was formally admitted at the trial that a blood sample of the complainant taken on 23 April 2017, revealed the presence of amphetamine and methylamphetamine.[103]
[103]Exhibit 1, item 7.
Counsel for the appellant submitted it was highly unlikely that, as the complainant said in her second police interview, the appellant had found the needle he used to inject her on the floor.[104] The complainant made that statement after answering, “No” to a question whether the appellant had another plastic bag like the one he had when they were at the fish shop.[105] The complainant was not asked and did not say whether or not she saw how the needle came to be on the floor before the appellant found it there. Her statement that the appellant found the needle on the floor does not necessarily imply that the appellant used a needle discarded by someone else. In any case that statement did not require a doubt to be held by the jury about the reliability of the complainant’s statements upon which the charges were based.
[104]Second police interview at pp 28 – 29.
[105]Second police interview at p 28.
The appellant’s counsel referred to the complainant’s identification of “Gavin Hearn” in the first police interview. It was reasonable for the jury to find beyond reasonable doubt that the appellant was the man to whom the complainant referred as Hearn in that interview; in the second interview, the complainant identified the appellant as the man who was engaged in the conduct she had described in the first interview, the appellant could be described as a “mate” of the complainant’s mother, as the complainant described “Hearn” in the first interview, and there is no suggestion in the evidence of the complainant or any other witness that the complainant knew any man called “Gavin” other than the appellant.
In relation to the third police interview, counsel for the appellant referred to a passage in which the complainant said that after the appellant took her to Charters Towers he came into the room and said his mate wanted to have sex with the complainant.[106] The complainant said the appellant’s mate came in and tried to have sex with her. When asked to say the next thing she remembered happening, the complainant said she did not know. The complainant was asked whether she knew Gavin’s last name. She answered that she did but had forgotten it. Those statements did not require the jury to doubt the truth of the complainant’s statements in the police interviews inculpating the appellant in the charged offences.
[106]Third police interview at p 4.
Counsel for the appellant emphasised that the only evidence that the complainant did not consent to the conduct charged in counts 1, 3, 4, 5 and 7 comprises statements by the complainant in the police interviews which she disavowed on oath in her pre-recorded evidence. Counsel submitted that the preliminary complainant evidence was silent upon the issue of consent and there was almost a complete absence of corroborative evidence about consent. These arguments do not meet the point that there was a substantial basis in the evidence for the jury to reject and attribute no weight to the complainant’s recantations in her pre-recorded evidence of the evidence she had given in the police interviews. Once the recantations are put aside, nothing in the evidence required the jury to harbour a doubt about the credibility or reliability of the complainant’s unequivocal statements in the police interviews to the effect that she did not consent and made it clear to the appellant that she did not consent to his conduct charged in counts 1, 3, 4, 5 and 7.
The appellant’s counsel referred to a passage in which the complainant, after identifying the appellant by name,[107] was asked how long she had known the appellant; she responded, “Uh 2 months I think”.[108] Subsequently she said she was 14 when she first met him.[109] The answer by the complainant that she thought she had known the appellant for two months was obviously wrong; it is inconsistent with other persuasive evidence, including other statements by the complainant in her police interviews. The complainant made statements about count 1 (see [23] of these reasons) to the effect that she had known the appellant at least since she was 15 (and thus for at least about a year before the date of the other offences) and that the appellant had lived in her house for two months. A conclusion that the complainant misunderstood the particular question would be consistent with the evidence of the complainant’s intellectual disability and the evident necessity for careful and patient questioning of the complainant to extract her account in the police interviews.
[107]Third police interview at p 43.
[108]Third police interview at p 46.
[109]Third police interview at p 49.
When considering whether the recantation by the complainant in her pre-recorded evidence of her statements in the police interview, together with the various other discrepancies and inconsistencies in the evidence in the Crown case, rendered any of the verdicts unreasonable, it is necessary to bear in mind that it is a serious step to set aside a jury’s verdict on the ground that it is unreasonable, the jury being “the constitutional tribunal for deciding issues of fact”; the Court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”.[110]
[110]R v Baden-Clay (2016) 258 CLR 308 at [65] – [66].
I conclude that the complainant’s recantation and the various discrepancies and inconsistencies within her evidence and between her evidence and other evidence, whether considered individually or cumulatively, are readily reconcilable with the complainant’s evidence of the offences in the police interviews being honest and reliable. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence.
I would dismiss the appeal.
McMURDO JA: I agree with Fraser JA.
HENRY J: On a consideration of the whole of the evidence I agree for the reasons given by Fraser JA that it was open to the jury to be satisfied beyond a reasonable doubt of the appellant’s guilt of each offence. I agree the appeal should be dismissed.
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