R v H

[1995] QCA 4

IN THE COURT OF APPEAL [1995] QCA 004

SUPREME COURT OF QUEENSLAND

C.A. No. 458 of 1994

Brisbane

[R. v. H]

THE QUEEN

v.

H

Appellant

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 07/02/1995

Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED; CONVICTION QUASHED AND
VERDICT OF ACQUITTAL SUBSTITUTED.

CATCHWORDS: CRIMINAL LAW - ATTEMPTED RAPE - appellant convicted of attempted rape - whether confusion and contradictions in complainant's statement in record of interview is sufficient to set aside the conviction.

Counsel:	Mr. T. Rafter for the appellant
Mr. P. Callaghan for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions

Hearing Date: 1 February 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 7th day of February 1995

The appellant was charged that on a date unknown between 30

April 1993 and 23 June 1993 at Harrisville he raped the

complainant who was then 8 years of age. The appellant was then about 16. The jury returned a verdict of not guilty of rape but guilty of attempted rape. The appellant appeals against his

conviction for that offence.

The evidence against the appellant at the trial consisted of a video-taped record of interview with the complainant on 23 June 1993 and the evidence of a medical practitioner of trauma

in the vicinity of the complainant's hymen.

The version of events given by the complainant in the record of interview is confusing as to the occasions of sexual contact between the complainant and the appellant, their sequence, their times and their locations. It is convenient to commence with her description of the event which resulted in the charge and conviction, putting to one side for the moment its time and location and its place in the sequence of events

described by her. She said:

"then he picked me up and took - he took my nickers off first
and then he picked me up and put his willie on my bottom.

On your bottom? - Here.

Here. Right? - And then he went all over the place.

What went all over the place? - The dick went there, there, all

around.

(Whilst saying this the complainant, who was seated at a table,

gestured in a downwards but general direction.)
Okay. What did that feel like when it went all over the

place? - It was hurting.

It was hurting, was it? - Yeah.

And were you standing up or lying down or how were when - ? - H

was standing up and my legs were behind his back and - and my - my hands were holding his back cause I didn't want to fall back. So he was holding you, was he? - Yes."

That incident is described, in part, in similar terms later

in the record of interview.

The complainant related other events involving sexual contact with the appellant. The first involved the appellant touching the complainant's breasts and causing her to masturbate

him. The second involved a separate act of masturbation which

may have occurred immediately after the events the subject of the charge and the third was one in which the appellant forced

the complainant to have oral sex with him.

When first asked to describe these events the complainant

described the event in which the appellant touched her breasts

and caused her to masturbate him, the events quoted above, the further act of masturbation and the act of oral sex as if they

occurred in that sequence but on the same day and at the same location. However when asked whether all this happened on one

day she replied: "No". Then in answer to some leading

questions she said that the touching of her breasts and causing

her to masturbate the appellant occurred on one day, on another

day the events described in the quoted passage above and the

further masturbation and the oral sex on a third day.

The matter becomes a little more confused because, when
first describing all of these events she said that it happened

"up in the shed at the haystack". Later in the interview she said that they had been once in the calf shed and, she did not know how many times, in the haystack.

More importantly, when describing, for the second time,

part of the events said to constitute the offence, the

complainant said that it happened twice. She had just been describing how the appellant had picked her up and how her legs

were at the back and his willie went all over the place. And when so describing these events she omitted any reference to masturbation, indeed excluding the possibility that it occurred after these events by saying: "At the back and then he - then it went all over the place and then he pulled me back down and I

pulled my pants back up and he went home."

When the complainant gave evidence as she did relevantly only in cross-examination, she said that she could not remember what happened in the shed or how many times she had been in the shed with the appellant. She could not remember what had happened between her and the appellant in the shed or anywhere

else. Then came the following passage:
"H has never, ever, I suggest put his dick, if I can use that
expression, anywhere near the area where you do your wee's from?

- No.

. . . . . . . . . . . . . . . .

He never ever put his dick in the area you do your wee's from? -

No.

He has never ever put his dick into any other part of your body?

- No."

The evidence of the medical practitioner was that the

tissues of the hymen were slightly reddened and swollen, the

diameter of the hymen in the transverse aspect was slightly

wider than he would have expected for a child of the complainant's age and there was a slight gap in the hymeneal margin. From this he was able to conclude that this was consistent with partial penetration of the hymen by an object of a width of around one centimetre; that is consistent with partial penetration of a penis of person of the appellant's age.

But it was of course consistent with other causes. And the complainant, in the record of interview, spoke of sexual activity, though not involving penetration, with her male cousin.

The evidence plainly did not justify a verdict of rape. Nor do we think it justified a verdict of attempted rape. It is unnecessary to consider whether, had the complainant given no evidence on the question in court, the evidence contained in the video-taped interview, together with the medical evidence, would have been sufficient to sustain such a verdict. The evidence

given by the complainant in court so plainly contradicted the

elements of that offence as to render a conviction for it
unsafe.

The conviction for attempted rape should therefore be set aside. The sole remaining question is whether this Court should enter a conviction of indecent assault. The only evidence upon which such a conviction could be entered is that which is, in substance, set out in the passage which we have quoted from the video-taped interview with the complainant. We have already mentioned the lack of clarity in identifying the place and time of the event described and whether the complainant was describing one or two such events. This evidence, tendered in

relation to indecent assault, in contrast to rape or attempted rape, derives no support from the medical evidence. Moreover, when giving evidence in court, immediately after the questions and answers in cross-examination previously referred to, she gave the following answers:

"In fact, I suggest to you, S, that H has never ever done
anything indecent to you at all? - Yes.

What has he done? - He was making - he pulled me up and was

shaking me up and that.

Shaking you up and that? - Yes.

That was on the day you were talking about before when he pulled

you up to the shed? - Yes.

He shook you up as well did he? - Yes.

You can't remember what actually happened when you got to the

shed? - No."

Whilst this evidence does not exclude the possibility of an

indecent assault having occurred in the shed it casts further

doubt on the possibility that the event described in the video-

taped interview ever occurred. In view of that, the lack of

clarity in her video-taped statement and the absence of any other evidence, it would, in our view, be unsafe to convict the appellant of this offence.

We would therefore direct that a verdict of acquittal be

entered.