R v H and Attorney-General of Queensland

[1996] QCA 324

IN THE COURT OF APPEAL [1996] QCA 324

SUPREME COURT OF QUEENSLAND

C.A. No. 144 of 1996 C.A. No. 126 of 1996

Brisbane
[R. v. H]

[A-G v. H]

THE QUEEN
v.

H

THE QUEEN

v.

H

Respondent

and
ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Fitzgerald P
Davies JA

de Jersey J

Judgment delivered 03/09/1996
Judgment of the Court

APPEAL ALLOWED AND THE CONVICTION AND SENTENCE SET ASIDE. THERE IS TO BE NO NEW TRIAL. THE APPEAL AGAINST SENTENCE BY THE ATTORNEY-GENERAL IS CONSEQUENTLY DISMISSED.

CATCHWORDS:  CONVICTION - wilfully exposing a child under 16 years to indecent photographs, the child being under appellant's care - 4 year old complainant -whether the complainant had sufficient intelligence to give reliable evidence - inconsistencies in complainant's evidence - whether conviction unsafe and unsatisfactory.

SS. 9(1), 21(A), 93A of the Evidence Act 1977.

Counsel:	Ms DJ Richards for the appellant Ms L Clare for the respondent
Solicitors:	Legal Aid Office for the appellant The Queensland Director of Public Prosecutions for the respondent

Hearing Date: 27 August 1996

JUDGMENT OF THE COURT
Delivered the 3rd day of September 1996

The appellant is a 42 year old man convicted in the District Court of wilfully exposing a child under 16 years to indecent photographs, the child being under his care.

The Crown case, which the jury accepted, was that on 4 July, 1995, the appellant, in the absence of his de facto wife, who was the 4 year old complainant's day care mother, took the complainant to his bedroom and showed her a magazine which contained pornographic photographs. The defence case, which the jury rejected, was that the complainant independently found and examined the magazine without involvement on the part of the appellant.
At the time of the trial, the complainant was one month short of her fifth birthday. The learned trial judge held a voir-dire at the commencement of the trial, and determined, pursuant to s.9(1) of the Evidence Act (1977), that she was not satisfied that the complainant did "not have sufficient intelligence to give reliable evidence". The appellant challenges that finding. The finding was based on the learned judge's assessment of the complainant's responses to her questions, taken with the evidence of a clinical psychologist.
In the ensuing hearing, the Crown relied on a tape-recorded statement given by the complainant to police officers at her residence on 5 July 1995, admitted under s.93A of the Evidence Act and video-taped evidence in chief and cross-examination.

In the former, the complainant, who was then 4 years 3 months old, did not say that the appellant showed her the magazine. The closest she came to that point was to say that she had a secret about a book which she did not remember; that she had better not tell her secret because it was "a bit rude"; and that the appellant was "a bit rude ... because he did that".

At no stage during an apparently lengthy conversation with the police officers did the complainant indicate that the appellant took her to his bedroom and showed her the magazine. She indicated that she saw it, but not how she came to see it.

In the video-taped evidence, which was admitted under s.21A of the Evidence Act, the complainant asserted five times that the appellant showed her "that magazine" or "the book". She told the Crown prosecutor that she could not "remember anything in there" - although the trial was conducted on the basis that it was the pornographic magazine which she saw, and the defence is to be taken as having conceded that. Significantly, however, she told defence counsel that she could not really remember whether she found the book, or whether the appellant showed it to her; that she could not really remember how she found the book.

The complainant's mother gave evidence of "fresh complaint". The evidence was that later that day, the complainant told her of a book, and said that the appellant let her look at the pictures, one of which was of lady "with a bottle up her wee-wee". In response to questions, the complainant said the book was under a blanket in the appellant's bedroom. The mother asked was the complainant "snooping around people's bedrooms", something the mother had previously warned against. The complainant answered "no", that the appellant had given it to her to look at. Counsel for the appellant submitted that the complainant's attribution of blame to the appellant, in alleging that he showed her the book, may be explained as a reaction to concern that she had breached her mother's warning not to "snoop around people's bedrooms".

A better appreciation of the thrust of the complainant's evidence may be gained from the following transcript, which sets out the evidence in its entirety:

"MR LONG: Just come in here. If you would like to sit

over there? All right. A?-- Yeah.

Can you tell me what your whole name is?-- Yes.
What's that?-- A.
And do you go to kindergarten or do you go to school? What

do you do?-- I go to preschool.

All right. And do you have one teacher at preschool?

-- Two teachers.

Can you tell me the names of your teachers?-- Yes.
What's their names?-- Mr S and Miss O(?).
Before you went to preschool this year ------- Mmm.
----- did you go to some child care last year?-- Yes.
At whose place did you go to child care?-- Jane's place.
Anyone else's place?-- Um -----
Do you know a lady called W?-- Yes.
Did you go to her house for child care?-- Yes.
And does W have a husband?-- Yes.
What's his name?-- H.
Can you tell me some of the things that you did at W's

house when you were there at child care?-- Yes.

What sort of things did you do-- I played with S.
Mmm. Anyone else?-- No.
When you were at W's house -----?-- Yeah.
----- when you were there at child care, was H there too sometimes?-- Oh, all the times. Sometimes he goes to work - all the times he goes to work, and he comes home - not very early.
Can you tell me some things that - well, can I ask you this: did you do any things with H when you were at his and W's house?-- Yes.
Can you tell me things that you did with H?-- He showed me

that magazine.

Mmm. Whereabouts in the house did he show you the

magazine?-- Where W and H sleep.

Can you tell me what was in the magazine?-- Yes.
What was in it?-- It was -----
Can you tell me what you saw in the magazine?-- Yes.
What did you see?-- I saw one with -----
Were there - was it a magazine that had pictures?-- Yes.
Can you tell me about any of the pictures? It's all right.
You just tell me what you saw in the magazine, A.

Can you remember what you saw in the magazine? You

are shaking your head?-- No.

Can you tell me about anything you saw in the magazine?--

No, 'cos I - I don't remember anything in there, no.

Can you tell me anything else that you did with H when you were at that house?-- I didn't do anything else with H in that house.
Mmm. All right. That's all I have.
CROSS-EXAMINATION
MR SMITH: A, could I ask you a couple of questions? I won't be too long. You understand that? I'll try and be really quick. A, do you remember yesterday?-- Yeah.
You went to a really big room; do you remember that?--Yes.
And there were some funny people with black dresses on?--

Yeah.

And wigs; do you remember that? It was quite funny, wasn't

it?-- Because you had horse hairs.

Yes, horse hair. Do you remember being asked some questions there yesterday, and one of the questions you were asked yesterday was whether you knew what it was to tell the truth; do you remember that?-- Yes.

Remember you said you weren't sure yesterday?-- Yeah.
That's true that answer, isn't it?-- Mmm.
Now, can I just take you to this book that you say you saw

at H's place?-- Mmm.

Whereabouts was the book kept, do you know?-- Under a

blanket.

All right. Did you find the book there?-- No, H showed me

it.

Well, can I suggest to you or tell you that, in fact, you found the book there when you went into the bedroom?-- H was walking up the bedroom and he let me go up there.
He might have let you go upstairs, but you actually found the book under the blanket; is that right?-- No. H showed me the book.
Can I say this: you really can't remember whether you found it or he showed you, can you?-- No, I don't remember.
All right. Now, you can't remember what was in the book?--

No, but I know where it was.

And you found it there?-- Yeah, but he showed me it.
Could I just say this to you -----?-- I didn't know it was

there, but he showed me it under the blanket.

Well, when you had the book, do you remember H coming into the room?-- H was already there when I was in the room.
Well, you see, H took the book off you; do you remember

that?-- No, he didn't.

Do you remember Jason coming into the room?-- Jason?
Mmm. Do you know Jason?-- He's my - I've got a Jason

who's my brother.

No, but H has got a son called Jason. Do you remember

him?-- Yes.

Now, Jason came into the room when you had the book; do you

remember that?-- Yes, but H was there as well.

Yes, and Jason was there as well; is that right?-- No, H

and I was there.

Right. And then Jason came in?-- Yeah.
And Jason jumped on the bed; do you remember that?-- Yes.
And H told Jason not to jump on the bed because he might hurt his back; do you remember that?-- He could have - it was a waterbed. He could have busted it.
Jason had a brace on. Do you remember he was sick at that

time?-- Yes.

And after that was said, all of you went outside; do you

remember that?-- Yes.

How many times did you see the book?-- About - every time

I came.

Every time you went over to H's place, you found it and saw it?-- No, H was walking up to his bedroom and I was walking up with him, because he wanted to show me it.
And that happened every time you were there; is that

right?-- No, I was trying to get off his hand.

You saw it every time you were there; is that right?-- Yes.
You see, again, you really can't remember how you found the

book, can you?-- No.

Did you tell W about the book?-- No, because she didn't

know.

Thank you, that's all my questions.
MR LONG: I've nothing else. We will finish it there.

Thank you."
The appellant contends that the conviction is unsafe. He

gave evidence at the trial to the effect that the complainant found the book without involvement on his part. (That evidence gained a degree of support, though not much, from the evidence of his 12 year old son Jason.) The essence of the challenge to the conviction rested in the complainant's failure to implicate the appellant in her statement given on 5 July 1995, and her concessions twice during the cross-examination that she could not really remember how she found the book, notwithstanding her claims that the appellant showed it to her, claims said possibly to be referable to concern following her mother's questioning whether she had been "snooping around people's bedrooms".

When cross-examined at the trial, the complainant confirmed her statement given in the course of voir dire, that she was not sure what it meant to tell the truth. It is relevant to note, in determining whether the conviction should stand now, albeit a circumstance arising upon the voir dire, that the complainant then declined the invitation to tell the court "anything that happened" with the appellant.

In all these circumstances, the verdict should be seen as unsafe. It is not necessary to make a determination on the challenge to the learned judge's reception of the evidence of the complainant. The conviction was based on the evidence of a complainant who, when 4 years old, and on the day after the alleged offence, did not in the course of a lengthy interview implicate the appellant. Then at trial, when she was almost 5 years old, although implicating the appellant, she twice conceded in direct terms that she really did not, or could not, remember whether she found the book or he showed it to her. Other evidence pointed up a reason why she might have wanted to blame someone for her own discovery of the book, if that is what happened. Making appropriate allowances for the difficulty of establishing guilt where a complainant is so young, those circumstances nevertheless warrant concluding that this verdict is unsafe and should not be allowed to stand.

The order of the court is that the appeal is allowed and the conviction and sentence set aside. There should be no new trial. The appeal against sentence by the Attorney-General is consequently dismissed.