R v Hunter
[2011] QCA 166
•19 July 2011
SUPREME COURT OF QUEENSLAND
CITATION:
R v Hunter [2011] QCA 166
PARTIES:
R
v
HUNTER, Linden George
(appellant/applicant)FILE NO/S:
CA No 286 of 2010
DC No 3271 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
Orders delivered ex tempore 23 June 2011
Reasons delivered 19 July 2011DELIVERED AT:
Brisbane
HEARING DATE:
23 June 2011
JUDGES:
Chief Justice and Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
Delivered ex tempore on 23 June 2011:
1. Appeal allowed.
2. The convictions are set aside and verdicts of acquittal entered on both counts of the indictment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted of two counts of indecently dealing with a person with an impairment of the mind and under his care – where the complainant’s evidence at the trial contained a number of internal and external consistencies – where the severity of the complainant’s allegations escalated upon retelling – where the appellant argued that there was an apparent motive for the complainant to make a false complaint – where the complainant was described as manipulative “on a basic level” – whether, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, citedCOUNSEL:
M J Power for the appellant/applicant
G P Cash for the respondentSOLICITORS:
Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA with which I agree.
FRASER JA: The appellant was found guilty by a jury after a trial in the District Court of two counts of indecently dealing with a person with an impairment of the mind and under his care. The trial judge sentenced the appellant to two and a half years imprisonment on each count with parole eligibility after 15 months.
The appellant appealed against his convictions and applied for leave to appeal against his sentence. The ground of appeal against conviction is that the verdicts of the jury were unreasonable and could not be supported having regard to the evidence. Under that ground of appeal the question is whether, having regard to the whole of the evidence before the jury, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[1]
[1]MFA v The Queen (2002) 213 CLR 606 at 614-615 [25] per Gleeson CJ, Hayne and Callinan JJ and 624 [59] per McHugh, Gummow and Kirby JJ, applying M v The Queen (1994) 181 CLR 487.
After hearing argument on 23 June 2011, the Court allowed the appeal, set aside the convictions, and entered verdicts of acquittal on each count. The Court then indicated that the reasons for those orders would be given in due course.
Outline of the case
The complainant, who was 20 years old, was afflicted with a significant intellectual impairment and required full time residential care. The appellant was employed as a carer in the house in which the complainant resided.
The Crown case was that during the morning on Sunday, 11 January 2009 the appellant touched and sucked on the complainant’s breasts while she sat at the kitchen table in the house (count 1). The appellant subsequently followed the complainant to the toilet, pushed open the toilet door, and touched the complainant in the area of her vagina and backside (count 2). There was no one else present at the time. The evidence in the Crown case was given by the complainant, carers to whom the complainant spoke shortly after the alleged events, and the complainant’s mother. The appellant did not give or call evidence.
The appellant argued that the reliability of the complainant’s evidence was doubtful. Her evidence was submitted to be compromised by demonstrable errors, internal inconsistencies, and inconsistencies with the evidence of some of the other witnesses. The appellant also argued that there was evidence that the complainant was capable of manipulative behaviour and had a possible motive for making a false complaint against the appellant. The respondent acknowledged that there were such errors and inconsistencies in the evidence, but argued that it was reasonably open to the jury nevertheless to act on that evidence and find the appellant guilty of the offences.
Those arguments make it necessary to summarise the evidence. It is necessary also to quote some passages of the complainant’s evidence because the manner in which she gave her accounts sheds some light on the effects of her disability. No expert evidence was adduced on that topic.
The complainant’s evidence
The complainant’s evidence comprised two recorded interviews between the complainant and police (on 27 and 30 January 2009) and pre-recorded evidence (on 1 October 2010). In the first recorded interview the complainant said that the appellant referred to “male staff … [l]ast week before” and said:
“EC Oh, UI got UI bit, UI I had got attacked from him
MD MmhmmECHe was tickling me too much up, my head was going backwards from the chair
MD Mmhmm
ECThen he started putting his hand down onto my breast and UI keep off me
MDMmhmm
ECAnd then he UI and then UI gone to look and check for my UI and it’s still nearly full but he just UI
MDMmhmm
ECSo he just left UI Louise is so kind
MDMmhmm
ECHe did the wrong thing, that was my dumb leg click
MDPardon?
ECMy leg clicked”.
(Ms Louise Baker was a carer at the house with whom the complainant was particularly close.)
The complainant said of the appellant that “he was a not, a bad one … [h]e attacked … [s]o I was that close to call Louise up tell her to come in earlier”, and:
“EC But I waited for him to go so I can tell her
MD Yep, ok
EC Yeah
MD And so this male staff you said
EC Oh yeah well he was touching on me
MD AhhaECUI and UI my girl thing and I said UI my foot was holding the door closed and he still got near me
MD Ahha ok
ECSo he lost his job working with me, now Louise will have to look after me
MD Oh ok
EC Mmm cause I like her, I just like her”.
The police officer asked the complainant to tell her everything about when the complainant got attacked:
“EC He was tickling me too much
MD Mmhmm
EC And I was at, sitting at the table
MD MmhmmECMy head was back, half way up, down, not my UI, my back was on the seat too, UI it was a bit dangerous
MD Mmhmm
ECThen I went to the bathroom and then he followed me and I just got fed up
MD Oh ok and what happened then?
EC Touched me, my girl thing when I had my girl thing, period
MD Yep
EC Every month I have it
MD OkECHe got me right when, the end of my, right down past my stomach
MD Ok
EC Mmm
MD And what happened then?ECHe was touch me and I told him get that hand out of there UI so that’s why he lost his job working with me, now Louise have to work with me whole time”.
The complainant then referred again to the appellant having tickled her. She said that she told him to stop, she waited for him to leave, and then she told Louise what happened. The police officer asked the complainant to explain what she meant when she said that the appellant had tickled her “all around”. The complainant explained that she “couldn’t breathe too much” because he was being rough. She said that the appellant tickled her under her arms, that she swore at him and told him to back off, and that “he lost his job for all that … [s]o I told Louise”. The complainant added that the appellant “was touching where my had my girl thing”. She referred again to having gone to the bathroom. The complainant told him to back off, and:
“he toucheded me … on my girl thing he touched me and I tell him to back off … and then I pull my jeans up and then … knickers and and zipped them up … [a]nd then I was close to call Louise … [s]o I told her when she got here and he left”.
The police officer asked the complainant to tell her everything about “the touch” and what part of the body the appellant used. The complainant answered “my body”. She said that the appellant “wanted to suck my UI” (the Court was informed that at this point the complainant pointed to her breast) “and UI kicked him away”. After further questioning, the complainant said that the appellant touched her chest, then put his hand inside her clothes and touched her chest under her clothing.
In the second recorded interview the complainant said that the appellant was touching her “boob”, “trying to suck them”, “[s]ucking them” and “touching my girl parts”. She said that the appellant “was trying to touch my other part at the back” and that he “was touching my girl period”. The complainant said that the appellant was touching her boob in the sitting room. She was reading the newspaper and the appellant put his hand down her shirt and her bra, touched her boobs and “sucked them”.
In describing her report of the conduct, the complainant said that she had to wake Louise up, she rang Louise on her mobile and then her home line, and when Louise answered the complainant told her to come back to work straight away. The complainant waited for the appellant to go so that she could tell Louise what he had done. She said that the appellant “was stealing money and [UNO] cards but he had to give them to back to me.”
The complainant repeated that the appellant was touching her “girl parts”. She said this occurred when she was sitting on the toilet and that a drop of blood fell on him. She added that the appellant “was shaking his um private part of me”, and that when the appellant touched the blood on her pad she told him “not to do that, it’s my girl stuff”. After describing the events in the bathroom again, the complainant said that she started giving the appellant “a punched hand” and that “he was stealing my UNO cards and then I told him to give my UNO cards back”. She told the appellant “not to touch my girl parts and no stealing my UNO”, and “not to tickle me”. The complainant said that the appellant had also touched her backside.
In evidence in chief the complainant affirmed the truth of everything in her police interviews. In cross-examination the complainant said that the appellant had:
“[B]een touching my whole body … [h]e had me in danger, too … [m]y head halfway onto the ground, my body, my legs are hanging over the edge upside down and it was really dangerous. I was – would hurt myself and I – he would have – attacking me, too … [h]is – my whole body was this – he had my whole body upside down that way to here … [t]hat was really dangerous and my mum wouldn’t believe what he just done.”
The complainant said that occurred on the occasion when the appellant “sucked on” her boobs, and she said, “[d]on’t do that. It’s pretty rude to me.” The complainant said that she was sitting at the table looking at the newspaper and “then he started touching my girl parts … [a]nd my backside, too”. When the complainant was asked whether she was very close to Louise, she agreed and added, “I was really scared of [the appellant] because I didn’t like what he just done to me.” She then volunteered that “he had his boy parts up my girl parts, touching my period too.”
The complainant said that she had a “blue mobile” on which she rang Louise, and said:
“Look, I need help. [The appellant’s] attacking me. He’s been tickling me all over me and I didn’t like and I was just about to kick him away because I really needed a lot of help and I should have called you to help me.”
The complainant said that the alleged things that the appellant did happened before morning tea. She said that she rang Louise and told her to “come quickly and help me” and “[j]ust tell him to stop.” The complainant gave evidence that she asked Louise to hurry “because I’m getting attacked.” Louise responded that she would come in at about 3.00 pm.
Defence counsel suggested to the complainant that she had told Louise a number of things but had not told her that the appellant had sucked on her boobs. The complainant did not respond to the question but observed that the appellant “lies … and … he think he hasn’t done the wrong thing when he has done the wrong thing”. The question was put to the complainant again and she responded that “he touched it there and he sucked on them, touched my girl parts and touched behind and he had his zip and putting his boy parts up my vagina.” Defence counsel put to the complainant that when she spoke to Louise she had not told her about “boy parts”. The complainant answered that she “just told my mum the other day what he did because I forgot to tell [the police officer] … because I was getting agitated and hungry at lunchtime and I’m supposed to have music at 1 o’clock.”
When defence counsel questioned the complainant about who was at the house at the time of these events, the complainant said that there was a staff member called Susan. The complainant said that Susan “saw my head halfway on the ground, too … [s]he had to help me … [s]he helped me, called Louise up.” The complainant agreed that Melissa Markham, another carer, visited the house after lunch on the day that the appellant “did things” to her. She said that she followed Melissa down to the office “because I had to try and get away from [the appellant]”. The complainant gave evidence that she told Melissa “the truth what [the appellant] done”, specifically that the appellant had been sucking both breasts and tickling her all over, touching her “girl parts”, and put “his boy parts up my girl ‘gina”.
Other evidence in the Crown case
Ms Markham gave evidence in the Crown case. Her evidence was that she was at the house on the day of the alleged offences from about 1.45 pm for about an hour and a quarter. She recalled that while she was at the house the appellant was there attending to housework. Ms Markham said that the complainant was beside her the whole time and was quite chatty and excited about Christmas. During that time Ms Markham could hear the noise of the vacuum cleaner being used by the appellant. At one point the appellant came in to the office and offered to make Ms Markham a cup of coffee. The complainant asked the appellant whether he did not know that Ms Markham did not drink coffee. The appellant went away and continued his housework, and the complainant and Ms Markham continued their amicable discussion. Ms Markham gave evidence that the complainant always knew that her door was open, and that the complainant would always say that “I can just come in and talk to you about anything at anytime”. In cross-examination Ms Markham confirmed her recollection that the complainant seemed very happy to see her and was very chatty when she attended the house on the day of the events. The complainant did not complain about anything done by the appellant. Ms Markham would “definitely” have remembered such a complaint. Ms Markham gave evidence that she next saw the complainant just over a week later on the morning bus run at about 7.30 am. The complainant told her that the appellant had “done something”. Their conversation was cut short at that point because the bus they were in picked up a young client. The complainant never raised the matter again with Ms Markham.
Ms Louise Baker gave evidence that when she arrived at the house at about 3.00 pm on the day of the alleged offences, the appellant was present. The complainant stayed away from her until the appellant left the house at about 5.00 pm. When the appellant started his car, the complainant started shouting, “this is what [the appellant] did to me … he touched me, poked me here”. The complainant was grabbing her neck, kicking out, and gesticulating or rubbing her breast. The complainant also made some other gesture with her hand below the table she was sitting at. Ms Baker said that she did not know whether the complainant said her “zip was down” or “he pulled my zip down”, or something else. The complainant appeared to be overwhelmed, she could not breathe, she was screaming, and her face was contorted. Ms Baker recalled that the complainant said something like, “[a]nd it had happened yesterday”, which Ms Baker thought was a reference to the breast. Once Ms Baker was able to calm the complainant down, the complainant did not say anything else about the events throughout the remainder of the day.
Ms Baker agreed in cross-examination that if the complainant had telephoned her that day and complained about something the appellant had done she would have recalled it. She did not receive such a telephone call. She said that the complainant was obsessed with her UNO cards and if they were taken away from her she became traumatised. Ms Baker recalled that she saw the complainant’s UNO cards on top of the refrigerator when she arrived at the house that day. (It was submitted that the inference was available that the appellant had taken the cards from the complainant). Ms Baker agreed that the complainant could exhibit “very challenging behaviour” which included “outbursts of abuse and screaming directed at people”. Early in Ms Baker’s own relationship with the complainant, the complainant was at times very violent, including episodes of her lashing out and spitting.
When further questioned about the complainant’s complaint to her, Ms Baker agreed that the complainant did not mention anything about the appellant sucking her breasts. She added that the complainant said “[h]e touched me”, which “could be anything to [the complainant]”. Ms Baker agreed that Susan Byrnes was a carer who worked at the house, but she was not rostered to work on that day and was not there during the afternoon.
Ms Rachael Ryder was responsible for overseeing the care provided to the complainant. On Monday, 12 January 2009 she spoke to the complainant in the presence of Ms Veronica Johns, who was another of the complainant’s carers. Ms Ryder gave evidence that the complainant said that the appellant tickled her and “was trying to put his hand down her shirt”. The complainant told her that the appellant followed her everywhere. The complainant then lay down on a bed, so that her lower body was half off the bed, and said “I was like this” and “[h]e kept pointing at me.” In cross-examination Ms Ryder agreed that she took care to pay particular attention to what the complainant said and encouraged the complainant to tell her everything that had occurred. The complainant did not say anything to her about the appellant sucking her breasts, nor did she mention any touching of “girl parts”, “boy parts up girl ‘gina”, or “girl vagina”. Ms Ryder agreed that the complainant definitely told her that the events had occurred in the lounge room.
Ms Johns gave evidence that the complainant said that she “wasn’t very happy with [the appellant] because … he was touching her under her shirt, and she didn’t like that and she pulled her shirt up to stop him.” She said that the appellant kept following her and “poking her”. When asked where the appellant was poking her, the complainant pointed to her lower body. The complainant then took Ms Johns with Ms Ryder into the complainant’s bedroom and said that the appellant had been poking her with his finger while she was lying half on and half off the bed. In cross-examination, Ms Johns was referred to a file note that Ms Ryder had written and Ms Johns had checked for accuracy at the time, and agreed that the complainant in fact used the word “point” not “poke”. Ms Johns also agreed that the complainant said that the events happened in the lounge room. The complainant did not say anything about the appellant sucking her breasts, touching her “girl parts”, or “boy parts up her girl vagina” or “girl ‘gina”.
The complainant’s mother gave evidence that on Tuesday, 13 January 2009 she telephoned the house and spoke to the complainant. The complainant told her that she “hadn’t had a good weekend because of what [the appellant] had done to her”. The appellant had touched her breasts and “tried to tickle her really hard”. When the complainant’s mother asked her “what else?”, the complainant said that the appellant touched her “private girl’s parts”. The complainant’s mother recalled that the complainant used those precise words either during that conversation or when they spoke again the following day. The complainant told her mother that: she was in the toilet when the appellant touched her private girl’s parts; the appellant touched her breast inside her bra; the appellant had “touched her private girl’s parts where her blood drips, because she had her periods”; and the appellant had pushed the toilet door open because he was too strong. The complainant’s mother indicated that she was confused about whether those matters were discussed in one of the first two conversations, or in a third conversation which took place on 24 January 2009.
In the conversation on 24 January, the complainant’s mother emphasised to the complainant that it was important to tell the truth. The complainant said it was the truth. The complainant then said that the appellant had touched her breast, touched her between her legs and sucked her breast while she was on the sofa. The complainant’s mother recalled the complainant telling her that these things happened on two separate days, but she acknowledged that the complainant might have been “getting mixed up”. The complainant’s mother also said that the complainant reported that the appellant had told her “not to tell”, otherwise he would take her UNO cards away.
In cross-examination the complainant’s mother agreed that the complainant had exhibited challenging behaviours over a long period of time and manipulative behaviour “on a basic level”. As an example, the complainant’s mother said in re-examination that if the complainant was out on a bus and wanted to be back at the residence she would insist that she needed to go to the toilet. The complainant’s mother had previously reported to Disability Services Queensland that the complainant was “complex, manipulative, conniving, sneaky”, but on a basic level.
Another carer gave evidence in very vague terms about the complainant having told her in January 2009 that the appellant had touched her breast.
Discussion
It is useful here to set out the comprehensive analysis of the discrepancies in the evidence set out in the written submissions prepared by the appellant’s counsel:
“23. The complainant’s own evidence was internally inconsistent:
23.1.She did not complain in the first interview with police or in her complaints to staff members about the allegation that the applicant sucked on her breasts;
23.2.In her first interview with police she claimed that she waited for the appellant to leave before telling Louise Baker but in the pre-recorded evidence claimed to have told Louise Baker while the appellant was still there and ‘then he had to leave’;
23.3. In the pre-recording of her testimony she claimed the appellant touched her backside while sitting at the table which was not otherwise her evidence in either interview with police or any complaint to preliminary complaint witnesses;
23.4. She did not mention anything about “boy parts up girl ‘gina” until the pre-recording of her evidence and that was something not relied upon by the Crown.
24.The severity of the allegations escalated upon the retelling of the complaint:
24.1.The allegations initially made were of touching her breasts and touching her ‘girl parts’. There was no allegation about sucking her breasts made until either her conversation with the conversation with her mother in the car on Saturday, 24 January 2009 (though that was not included in the mother’s original police statement), or the second interview with police on Friday, 30 January 2009.
24.2.The severity of the allegations escalated to a crescendo when, in giving evidence at the pre-recording, the complainant alleged that ‘he touched it there and he sucked on them, touched my girl parts and touched behind and he had his zip and putting his boy parts up my vagina.’. There had been no such allegation previously made and the evidence was not considered sufficiently reliable for it to be charged on the indictment.
25. Her evidence was provably wrong in a material respect:
25.1.She claimed to have approached ‘Susan’ on the day of the offending because she was scared of the applicant touching and attacking her. She claimed to have had Susan help her telephone Louise Baker. This was not supported by other evidence and, in fact, the evidence of Louise Baker revealed that ‘Susan’ was not there that day.
25.2.The Crown Prosecutor all but conceded that the complainant’s evidence was unreliable in that regard and the learned trial Judge took that up in his summing up and noted, ‘So, I don’t think anyone is inviting you to conclude that the complainant was right about that.’. The jury were invited to consider whether her ‘erroneous evidence’ gave them a reasonable doubt.
26. There was some apparent motivation for her to complain:
26.1.After making the complaint Louise Baker looked after her more often which was a ‘good thing’.
26.2.She claimed that, “He took my Uno cards and I said, ‘That’s it. I don’t want you working with me anymore,’ so Linden left for good.”.
27. Her actions on the afternoon were inconsistent with having been offended against that morning:
27.1.The offending was said to have occurred before morning tea on Sunday, 11 January 2009. When Melissa Markham spent one and a quarter hours with the complainant in the afternoon she was said to be ‘happy’ and ‘chatty’.
28.She was someone who was said to be manipulative at a basic level:
28.1.There was evidence from the complainant’s mother that she was manipulative at a basic level.
28.2. The complainant’s mother and Louise Baker noted that the complainant exhibited challenging behaviours.
29. Her intellectual impairment:
29.1.Because of an admitted impairment of the mind, the complainant was taken to be someone who was unable to give her evidence on oath and who was a special witness and not required to give evidence in the usual way.
29.2The nature and extent of the complainant’s impairment was not the subject of evidence but it may be seen to have produced a lack of coherence in her evidence which detracts from its reliability.
30. Her evidence was inconsistent with other witnesses:
30.1.She claimed to have spoken about the incident on that Sunday to Melissa Markham, ‘Susan’ and Louise Baker. In fact, she only spoke with Louise Baker on that day.
30.2. She did not tell Rachel Ryder and Veronica Johns that the appellant had sucked her breasts, touched her on the vagina and had his “boy parts up my girl ‘gina”.
30.3. She alleged the touching had happened sitting at the table and the toilet but Rachel Ryder and Veronica Johns noted that the complainant had said it happened in the lounge room;
30.4.She claimed to have telephoned Louise Baker and told her about the appellant attacking her. This was not supported by Louise Baker’s evidence.
30.5.She claimed to have called Louise Baker and told her to come back to work straight away and that Louise Baker did come back to work early. This was contradicted by Louise Baker’s evidence.
30.6.She claimed that ‘Susan’ was there at the time and that ’Susan’ assisted her to call Louise Baker. This was not supported by other evidence.
30.7.She claimed to have told Melissa Markham that he had touched and sucked her breasts and put his “boy parts up her girl ‘gina” but Melissa Markham’s evidence contradicted that assertion.” (references omitted)
The respondent acknowledged the accuracy of that analysis, with some minor qualifications. The respondent referred to the complainant’s statement in the first police interview to the effect that the appellant “wanted to suck” the complainant’s breasts. The respondent also referred to the complainant’s mother’s evidence about the difficulty of eliciting information from the complainant, that she had to speak to the complainant about the events three times, and it was only when they had a face to face discussion that the complainant mentioned the appellant sucking her breast. Nevertheless, it must be accepted that no complaint was made at the outset that the appellant had sucked the complainant’s breasts.
In relation to inconsistencies between the account given in the police interviews and the account given in evidence, the respondent referred to the passage of time and the complainant’s impairment as possible explanations for the inconsistencies. Those are possible explanations, but the introduction of the allegation about “boy parts up girl ‘gina” at the pre-recording of evidence for the first time is of concern. The respondent’s submission that the complainant did not share the same understanding of the meaning of words and phrases as others does not seem a reasonable basis for treating this as anything other than the introduction of an entirely new and more serious complaint, and in circumstances in which the complainant had expressed her allegations on numerous, earlier occasions.
It is apparent on the face of the complainant’s evidence that an attempt to weigh its truthfulness and reliability by reference to internal or external consistency and demeanour must be fraught with difficulty. The complainant’s mother described the complainant as having “autism”. She plainly laboured under serious disadvantages in giving her accounts. Throughout the evidence, particularly during the police interviews, the complainant often interjected that she loved Louise; at times, that appeared to dominate her thinking to the exclusion of the topic of any particular question. At other times, she emphasised her attachment to her UNO cards. The complainant also often failed to respond to questions, mentioned unrelated matters, and seemed unable to distinguish between what was relevant and what was irrelevant.
Perhaps the most significant discrepancy in the evidence was the inconsistency between the complainant’s evidence and Ms Markham’s evidence. Ms Markham’s evidence of the complainant’s happy demeanour over more than an hour during the afternoon is hard to reconcile with the complainant’s evidence of very distressing conduct by the appellant that morning. On Ms Markham’s apparently reliable evidence, the complainant knew that she could talk to Ms Markham about anything at anytime, yet the complainant appeared to be content. She made no suggestion of any misconduct by the appellant during that afternoon. There was no suggestion of any constraint in the complainant’s manner, even when the appellant appeared and offered to make Ms Markham a cup of coffee in the complainant’s presence.
The respondent submitted that the explanation might lie in the fact that the complainant was closest to Ms Baker, so that she preferred to wait until the appellant was out of the house before disclosing the offences. That is a possible explanation but the inconsistency remains troubling. The respondent also submitted that it should not be assumed that the complainant would respond emotionally in the same way as another person. That may be so, but it would follow that too much weight should not be attributed to what otherwise might be significant evidence of the complainant’s distress when she complained to Ms Baker.
Another matter of real concern is the complainant’s evidence that she approached “Susan” and that Susan assisted her in telephoning Ms Baker. On the evidence of the carers, Susan was not present on the day of the offending and the complainant did not in fact telephone Ms Baker. That was acknowledged at the trial by the prosecutor and the trial judge. The respondent submitted that this error might be explained by the very long delay between the commission of the offences and the recording of the complainant’s evidence. That is a possible explanation, but the fact that the complainant’s detailed and apparently convincing evidence about this aspect of her reaction to the alleged offences was shown to be wrong nevertheless throws some doubt over her accounts.
The appellant submitted that possible motivations for the complainant to make a false complaint lay in her strong desire to have Ms Baker as her primary carer and her powerful attachment to her UNO cards. The complainant mentioned both of these matters in the course of her accounts of misconduct by the appellant. The respondent acknowledged that the complainant strongly preferred Ms Baker as a carer and that the complainant was attached to her UNO cards, but submitted that neither matter amounted to a real motive for a false complaint. That was for the jury to assess, but the quoted extracts from the complainant’s accounts demonstrate that the complainant did have a remarkably strong desire to have Ms Baker care for her and that the complainant connected her allegations against the appellant both with her affection for Ms Baker and with the departure of the appellant from the house. The complainant’s attachment to her UNO cards seems, at face value, to be a wholly insufficient motive, but again that attachment seems to have been surprisingly powerful. It should be recalled also that her mother gave evidence that the complainant told her that the appellant had threatened to confiscate the UNO cards if the complainant reported his misconduct, yet Ms Baker gave evidence that when she arrived at the house on the day of the alleged events, the UNO cards were not in the complainant’s possession.
The respondent submitted that there was no evidence that the complainant’s impairment was such as to make her prone to confabulation or that she was in the habit of telling lies or inventing stories. However the complainant’s capacity for confabulation was sufficiently demonstrated by her detailed and apparently persuasive, but incorrect, evidence that on the day of the alleged offending she complained to Susan and enlisted her help to telephone Ms Baker.
The respondent also submitted that there was no evidence that the complainant’s impairment was such as to make her prone to hallucination. Whilst there was no expert evidence which drew any link between the complainant’s disability and the reliability of her evidence, there was evidence which gave rise to serious concern in that respect. So much appears from the matters already discussed. Furthermore, when the complainant gave her pre-recorded evidence on 1 October 2010, the trial judge first asked a series of simple questions designed to ascertain whether the complainant appreciated the difference between right and wrong and her obligation to give truthful evidence. The complainant first appeared not to understand the point of the questions, but after some questioning she said that she told the truth. When the trial judge started to ask the complainant a further question, the complainant interrupted, “[b]ecause I’ve got the truth thing on me.” When asked what that was, the complainant responded “[t]he truth. It’s truth.” The trial judge asked whether it was on the complainant’s arm and the complainant answered “Yeah, wrist thing.” (The Court was informed that the complainant indicated that she wore a band on her wrist.) She added that it “helps me to tell the truth and I do tell the truth, what [the appellant] done to me.” Plainly there are grounds for doubting that the complainant was capable of consistently giving accurate evidence.
The trial judge appropriately directed the jury’s attention to the significant inconsistencies and errors, particularly the error concerning the complainant’s evidence about the involvement of Susan. His Honour correctly directed the jury that it was necessary to scrutinise the complainant’s evidence with great care and to act on her evidence only if, after considering the trial judge’s cautions about it, the jury was nevertheless convinced of its truth and accuracy. Even so, and although the jury must have accepted the complainant’s evidence in its essential respects, this is, in my opinion, one of those exceptional cases in which the Court must intervene.
The issue in the appeal was not whether the appellant was innocent, but whether it “appears unjust or unsafe to allow the verdict to stand because … there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”[2] Inconsistencies in the evidence were naturally to be expected in the case of this complainant, but it is the accumulation of so many matters of concern which is significant here. This was a case, in my opinion, in which “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”, so that “the court is bound to act and to set aside a verdict based upon that evidence.”[3]
[2]M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, quoting from Davies and Cody v The King (1937) 57 CLR 170.
[3]M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ, citing Chamberlain v The Queen [No 2] (1984) 153 CLR 521 and Chidiac v The Queen (1991) 171 CLR 432.
For these reasons it was necessary to set aside the convictions and enter verdicts of acquittal on each count.
MULLINS J: I agree with Fraser JA.
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