R v GW

[2006] QCA 479

SUPREME COURT OF QUEENSLAND

CITATION:

R v GW [2006] QCA 479

PARTIES:

R
v
GW
(appellant)

FILE NO/S:

CA No 252 of 2006
DC No 248 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2006

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant was convicted after a jury trial of one count of indecent treatment of a child under his care and one count of rape - where complainant child was appellant's stepdaughter - where complaint was made approximately two years after offences had occurred - where there were inconsistencies in complainant's evidence - where appellant's evidence at trial differed from what he had previously said to police - where appellant contends that verdicts were unreasonable on the evidence - whether jury was satisfied of appellant's guilt beyond reasonable doubt

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where appellant also contends that inadmissible evidence was led at trial - whether trial judge should have allowed a witness to be asked if the appellant had told her of a conversation this witness was alleged to have had with another witness - whether asking that question resulted in a miscarriage of justice

MFA v The Queen (2002) 213 CLR 606, applied

COUNSEL:

M J Byrne QC, with J S Veivers, for appellant
M J Copley for respondent

SOLICITORS:

MDRN Solicitors for appellant
Director of Public Prosecutions (Queensland) for respondent

1. McMURDO P:  The appellant pleaded not guilty to one count of indecent treatment of a child under his care and one count of rape.  The offences were said to have occurred between 25 December 2002 and 1 May 2003.  He was convicted on 11 August 2006 after a five day jury trial.  He appeals against his conviction contending that the verdicts were unreasonable on the evidence and that inadmissible evidence was led at trial.

1. The determination of the first ground of appeal requires a review of all the evidence led at trial with particular emphasis on the weaknesses relied upon by the appellant.

The evidence

1. The appellant married C and they had three sons, JE, JO and K, before divorcing.  He later married L who had a daughter T from a previous relationship.  The appellant's marriage to L also ended.  T was the complainant in both counts.  During the period when the offences were said to have occurred, the appellant lived in a house in suburban Brisbane with his three sons, then aged about 17, 16 and 14 years respectively.  In late December 2002 the boys travelled to Adelaide to visit their mother, C, returning in late January 2003 a few days before school commenced.  In November 2002 an adult friend of the appellant, JB, shared the house with him for about a year until Christmas 2003.  In January 2003 another friend of the appellant, AC, also moved into the appellant's home.

1. Central to the prosecution case was the complainant's evidence. This consisted of a video-recorded interview with police on 19 February 2005 tendered under s 93A Evidence Act 1977 (Qld) when she was 14 and pre-recorded testimony when she was 15.

1. She told police that she visited the appellant's house once a month on the weekend.  Her stepbrothers JE, JO and K lived there.  The offences occurred when she was 12 (she turned 12 in December 2002).  The appellant had been watching a movie, which she referred to as The Rocky Horror Show, on Foxtel and she fell asleep on the couch.  Her stepbrothers were in bed.  She woke up at about 3.00 am to find the appellant with his mouth in her vagina area.  This was relied on as constituting count 1.  She pretended to be asleep and rolled over.  He tried to insert his penis into her vagina.  This was the incident relied on as constituting count 2.  She rolled over and onto the floor.  The appellant picked her up and said "Sorry, I thought that's what you wanted".  She was wearing blue floral drawstring shorts and a T-shirt.  He was wearing black running pants and "practically nothing else".  The incidents occurred after Christmas but she was unsure whether the school holidays had finished.  She thought it probably happened on a Saturday or Sunday but she was not sure;  she thought it was before Easter.

1. In answer to more detailed police questioning she said the appellant licked her in her vagina with his tongue, moving it around.  He then unzipped his pants and tried to put his penis in her vagina from behind.  She was unsure whether he penetrated her.  She said his penis felt "like slimy".  When she woke up later she felt "weird", like she had a bladder infection, and she was sore "kind of like razor blades only not as bad".  He did not try and put his penis into her vagina for long because she rolled off the couch and onto the floor.  In answer to a question as to how far the penis went into her vagina she said "not that far", later adding "about an inch".

1. Since the incident she returned to the appellant's home every three months to see her brothers.  She thought about telling them but did not because she knew they would probably hate her for it, especially JE who idolized the appellant.  She did not tell anybody about what happened until 2004 when she told her best friend at school, AD, and AD's sister.  She decided to tell her mother because the appellant had been hitting C and had practically destroyed her family life.

1. The complainant's evidence pre-recorded on 6 March 2006 included the following.  She did not tell her mother about the appellant's actions for some time.  She was prompted to do so after C left the complainant's home after telling the complainant and the complainant's mother, L, that the appellant had hit C;  the complainant's mother praised the appellant to the complainant and it became "just too much" for the complainant.  The complainant wrote on a piece of paper what the appellant had done to her and handed it to her mother.  The next day the complainant made a formal complaint to police and also told C what the appellant had done to her.  She had known C since the complainant was a young child and regarded her as a second mum.

1. In cross-examination she said that when the offences occurred she thought only the appellant and his three sons were living in the house.  She had never met JB at the appellant's house.  She had met AC and remembered him living at the appellant's house but she could not remember exactly when.  She agreed that sometimes when she visited AC slept on a couch in the lounge room and she slept in the front room or in one of the boys' rooms on the floor.  When the appellant committed the offences AC was not living in the house.  The couch on which these offences occurred was a different couch to the one on which AC slept when he was living in the house.  Her stepbrothers JE and K were home asleep when the offences occurred but she was not sure about JO.  She agreed that at times her mother's relationship with the appellant was acrimonious.  She added that she thought they had broken up because her mother had "a really bad lack of commitment and likes to be able to go out and do her way with a lot of guys.  She is not the most responsible person".  She said her evidence was truthful.  She denied that her mother, L, had put her up to making a false complaint.

1. In re-examination she explained that the appellant's penis was in her vagina;  it was in the genital area although not actually in the "hole thingy that you go up and where the sperm thing fertilizes the eggs but ... just outside ...".  The appellant's penis was an inch or half an inch inside her vagina.  She could feel his penis in there because it hurt.

1. A school friend of the complainant, AD, gave evidence that during the second half of 2004 the complainant passed her a note in school.  She had written that she was raped by her dad.  She and AD went to the toilets together where the complainant confirmed that she was raped by her dad.  She said one night she was staying at his place and she was asleep and he raped her.  She said not to tell anyone.

1. AD's younger sister ED gave evidence that the complainant told her in October 2004 at a Halloween party "my dad ripped me".  ED understood "ripped" to mean "raped" and she, the complainant and their friends used the words interchangeably.

1. C returned from Adelaide to Brisbane in Christmas 2004 with her daughter from another relationship and moved into a separate room in the appellant's home so that she could spend some time with her three sons.  She and her old friend L (the complainant's mother) went out nightclubbing one evening and returned home in the early hours drunk.  They were loud and indiscreet about their common ex-husband who overheard their remarks and took offence.  The appellant and C argued and he struck her.  He told her to leave the house within a week.  She arranged to move to L's home.  L told her something about the complainant.  She then visited the complainant who said that the appellant had done something to her but was reluctant to discuss it.  Later that night the complainant told C that when she was at the appellant's place asleep on the couch she woke up to find him pulling her pants down giving her oral sex;  he put her on her stomach and penetrated her from behind;  it was too hairy to be a finger;  it felt like razor blades;  he said "I thought you wanted it, I'm sorry".  The complainant was crying and distressed.  C took the complainant to the police station the next day.  In cross-examination she denied telling the appellant's neighbour, RS, that she intended to get her young daughter to make a false complaint of rape against the appellant to get his house and custody of K.  In re-examination she said that the appellant had not said anything to her about having such a conversation with RS.

1. L, the complainant's mother, gave evidence that with C she spoke briefly to the complainant shortly before they went to the police.  L did not remember receiving a note from the complainant.

1. The appellant gave evidence that he never improperly touched the complainant.  Between December 2002 and May 2003 (the period charged on each count) she stayed at his home on only two occasions and on both those occasions her mother L also stayed over.  The complainant slept in the boys' bedroom.  From November 2002 JB lived at his home.  AC also lived there from mid-January 2003.  Foxtel was installed in mid-March 2003.  In December 2004 C and her young daughter were staying with him.  C and L went out together one evening and came home late and drunk.  He was upset at their conversation.  The next day his neighbour, RS, told him that C said she would make a false complaint about him sexually molesting her young daughter so that she could get his house.  This made him angry because he did not want C in his house any longer.  He asked her to leave that evening. 

1. In cross-examination the appellant agreed he told police that if the complainant came to visit she would have slept in the front room or on the couch.  He told police that if the complainant wished to visit him she and her mother L would give him "a ring on the Friday afternoon if she wants to come over, so I go and pick [the complainant] up and she comes and stays with us for the weekend and I drop her back on the Sunday afternoon".

1. JB gave evidence that he lived with the appellant from November 2002 until Christmas 2003.  The complainant visited on about six occasions in 2003 and always on a Saturday night.  On about three of those occasions she slept over without her mother.  She always slept in one of the boys' rooms.  JB did not work after 7.00 am on a Friday nor before 11.00 pm on a Sunday and never went out on a Saturday night, only on a Thursday or Friday night.  Foxtel was connected in March 2003.  AC also stayed at the house from January until August 2003.  AC liked to drink and occasionally he and AC went out together, sometimes getting home in the early hours of Saturday morning.

1. AC gave evidence that from when he moved into the appellant's home on release from prison in mid‑January 2003 until when he left in July or August 2003 he always slept on the lounge in the lounge room.  He conceded in cross-examination that JB worked night shifts and was not home every night and that on occasions he (AC) was out drinking until 4.00 am or later.

1. A neighbour of the appellant at the time of the offences, RS, also gave evidence in the defence case.  She was a disability pensioner and had some brain damage since birth.  Her evidence commenced in this fashion:

"[RS]:  Good morning, Mr Judge.
His Honour:                   Good morning.
[RS]:  Good morning Mister Men.
[Prosecutor]:                 Good morning.
[Defence counsel]:         Good morning, Ms [RS]."

Defence counsel asked RS, who was 47 years old and a mother of two children, whether she had a disability.  She explained "My mummy had a bug in her tummy and I was born with some brain damage ... I can't remember dates properly and times and that."  During her evidence she was asked about whether she had at one time some ducklings in her backyard.  She recalled that she did.  She was asked what happened to them but she was unable to remember.  She knew the appellant as a neighbour for two or three years.  She recalled that in December 2004 an ex-wife of the appellant and her daughter were living with him.  (She could not remember the woman's name but it is common ground that she was referring to C.)  This woman said that she wanted to get the house for herself, her daughter and K to live in and if the other kids (JE and JO) did not "wake up to themselves" she would "kick them out".  RS said that this was not fair and she would tell the appellant.  C said "If you tell [the appellant] there is other ways".  She said she was going to get the appellant drunk and when the boys go to sleep at night get her daughter to hop in bed with the appellant and she would come out and yell rape the next morning.  RS told the appellant about this a few days later and he was very upset.  At the conclusion of her evidence the judge told her she was free to go and could leave.  She responded:

"You have a nice day.
His Honour:       Yes, thank you? --  And youse all guys have a nice day too.  Thank you.  That was nice water too."

Was the guilty verdict unreasonable on the evidence?

1. In his directions to the jury the learned primary judge explained that rejection of the defence evidence did not mean the jury would convict the appellant;  they must then consider the evidence they did accept and determine if that established the appellant's guilt beyond reasonable doubt.  If they had a reasonable doubt with respect to the complainant's evidence on either offence they should take that into account in assessing her evidence generally and particularly on the other count.  His Honour summarized the prosecution and defence evidence.  He warned the jury that even if they were satisfied the appellant lied in cross-examination in resiling from what he said to the police in his record of interview, this only affected his credibility;  they must not reason that simply because the appellant had lied that was evidence of guilt;  an accused person might lie for all sorts of reasons including to bolster a true defence, to protect someone else, to conceal disgraceful conduct short of the commission of the offences or out of panic or confusion;  they should disregard his lies if they thought there might be some innocent explanation for them.

1. The judge summarized the prosecution and defence case.  The defence case was that they would accept the evidence of the appellant or at least have a reasonable doubt about the complainant's evidence;  L could not remember getting a note of complaint from the complainant;  the complaint was made not long after the appellant asked C to move out of his home;  the complainant continued to visit after she claimed the offences occurred;  the evidence of penetration in respect of the rape was weak, equivocal and insufficient to prove the prosecution case beyond reasonable doubt;  RS's evidence placed further doubt on the reliability of the complainant's allegations;  the complainant claimed that she was visiting the appellant to see her stepbrothers but they went to Adelaide in late December 2002;  the commission of the offences was inconsistent with JB and AC's presence in the house;  Foxtel, on which she said she watched The Rocky Horror Show prior to the commission of the offence, was not installed in the appellant's home until March 2003;  these matters all threw doubt on the complainant's credibility and they should acquit on each count.

1. There are no complaints about any aspects of the judge's directions to the jury.  The jury must be taken to have understood the contentious aspects of the evidence and the importance of accepting the complainant's evidence on each count beyond reasonable doubt before convicting on either count.

1. The appellant's credibility was damaged in cross-examination because of answers he gave to police when interviewed which differed from his evidence in court.  The evidence of AC and JB did not compel the rejection of the complainant's evidence because the offences may have occurred at a time when they were out of the house.  The complainant was unsure when the offences occurred and was not dogmatic about the day of the week on which they occurred.  The appellant's evidence was that she was regularly picked up on a Friday afternoon.  It follows that the offences may have occurred one night, perhaps a Friday, when AC and JB were not present and after Foxtel was connected in March 2003 when her stepbrothers had returned from visiting their mother C in Adelaide.  RS's evidence was of some initial concern but she does not seem to have been an impressive witness.  A jury would probably have been reluctant to place weight on her testimony.  In any case, the fact that the complainant complained to her school friends, AD and ED, sometime before RS claimed C said she would use her young daughter to make a false allegation against the appellant makes RS's evidence of less significance.  The fact that L did not recall her daughter writing a note about her complaint against the appellant did not require the jury to reject the complainant's evidence.  The appellant rightly does not contend there is any insufficiency in the evidence of penetration in respect of the rape count.  After reviewing the whole of the evidence I am satisfied it was open to the jury to accept the complainant's evidence as to the commission of the two offences and to be satisfied beyond reasonable doubt of the appellant's guilt on each count:  MFA v The Queen.[1]

   [1](2002) 213 CLR 606, [25] and [58] - [59].

Inadmissible evidence?

1. The second ground of appeal is that the judge should not have allowed the witness C to have been asked in re-examination whether the appellant had told her of the alleged conversation between her and RS.  The relevant evidence is as follows:

"[Prosecutor]:     Has the accused man ever said to you that [RS has] told him about this conversation that's been suggested to you? --  No, not at all."

1. The question was asked without objection so that the judge was not asked to rule on its admissibility.  It follows that this Court would only interfere with the jury's verdict if the asking of that question has resulted in a miscarriage of justice.  Senior counsel for the appellant rightly concedes that no miscarriage of justice has resulted from the admission in evidence of that question and answer.  That really disposes of this ground of appeal but for some unknown reason counsel for the appellant continued to pursue it at the hearing of the appeal.

1. From the judge's summation of the prosecution and defence cases it does not seem that the disputed evidence was a significant feature in counsels' addresses to the jury.  RS's evidence was, for the reasons I have already given, unlikely to have been accepted by the jury but in any case RS's evidence was not crucial because of the complainant's previous complaint to her school friends AD and ED.  But I am not persuaded that the question was improper and the answer inadmissible.  Defence counsel explored RS's evidence, that C had said that she would use her young daughter to make a false allegation of rape against the appellant, in cross-examining C, at least implying that the appellant's conversation with RS was the true reason why he asked C to move out of his home shortly before the complainant made these complaints.  In the light of that cross-examination, the prosecutor was entitled to investigate in re-examination whether the appellant told C that RS's allegation, which RS said she passed on to the appellant a few days after it was made, was the reason he asked her to vacate his home.  The appellant's later evidence also implied that RS's account of her conversation with C was instrumental in him asking C to leave the house.  Furthermore, the avenue of cross-examination of C on this issue explored by defence counsel resulted in answers which were not free from ambiguity and confusion and which the prosecutor in re-examination was entitled to revisit in an attempt to clarify.

1. The question and answer the subject of this ground of appeal were in the circumstances here admissible evidence, as defence counsel recognized in his decision not to object to it.  This ground of appeal is without substance.

1. I would refuse the appeal against conviction.

1. KEANE JA:  I agree with the reasons of the President and the order proposed by her Honour.

1. FRYBERG J:  For the reasons given by the President, I agree that this appeal should be dismissed.