R v Id
[2013] QCA 215
•6 August 2013
SUPREME COURT OF QUEENSLAND
CITATION:
R v ID [2013] QCA 215
PARTIES:
R
v
ID
(appellant)FILE NO/S:
CA No 219 of 2012
DC No 1211 of 2012DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
6 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
9 July 2013
JUDGES:
Chief Justice and Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal is allowed.
2. The convictions are set aside.
3. Verdicts of acquittal are entered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by majority verdict of two counts of indecent assault and one count of attempted rape of his sister-in-law – where the appellant appeals his convictions on the ground that the verdicts were unreasonable – where the case against the appellant relied entirely on the uncorroborated account of events of the complainant, given after the lapse of 40 years – where the offences were not complained of for 20 years – where the delay manifested in the complainant struggling to recall certain details of the alleged offences – where the complainant gave evidence that the alleged offences occurred on three occasions, when she stayed overnight, in the same bed as the appellant and his wife, her sister – where both the appellant and his wife testified that the appellant had never stayed at their home – where there was evidence that the appellant was interstate during some of the period during which the complainant recalled the offences as having occurred – whether there was an inherent improbability in the complainant's account of the repetition of events – whether in the circumstances 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, cited
COUNSEL:
T A Ryan for the appellant
G P Cash for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by her Honour, and with her reasons.
HOLMES JA: The appellant was convicted by majority verdict of two counts of indecent assault and one account of attempted rape of his sister-in-law, B. Each of the offences, it was alleged, occurred on an unknown date between 11 August 1973 and 21 October 1974. He appeals the convictions on the ground that the verdicts were unreasonable.
The complainant’s evidence
B grew up with an older sister and a younger brother in what she described as a “very strict Italian Catholic” family. Her sister, M, who was about two and a half years older than B, married the appellant in 1971. In 1973, the couple was living in East Brisbane, in an old Queenslander divided into two flats. Their flat consisted of an open veranda, a small entrance area (which B and M respectively referred to as a “hallway” and a “sunroom”), a bedroom, a combined lounge and dining room area, a kitchen and a bathroom. B was then 17 years old and was working as a secretary. She was shy, she said in evidence, and had never had a boyfriend. Her father did not allow her to go out unsupervised. She, her parents and her younger brother often visited M and the appellant on Saturday afternoons. On four such occasions, she said, she stayed the night at the flat, at her father’s suggestion and her sister’s request. In each case, the arrangements were made on the spot during the visit; she had no toiletries or night attire with her, and borrowed a nightgown from her sister.
B said her father first suggested that she stay overnight with M during a visit shortly after the family’s return in August 1973 from a holiday in Europe. What she described as the hallway of M’s flat had a couch in it which could be made up into a bed. However, that evening, M was disinclined to make the couch up and suggested to B that, instead, she should sleep on the side of the double bed she and her husband shared. B did so, lying on the left side of the bed facing the door, with her sister in the middle and the appellant on the right-hand side. To her embarrassment, her sister and the appellant had sexual intercourse. B pretended to be asleep and said nothing about it the next day either to them or to her parents. She had no driver’s licence and there was no telephone at her parents’ home, so she had to wait at her sister’s house until her parents arrived to take her home.
Matters fell out similarly the next time B stayed overnight with her sister. When it came time to make up the couch, M proposed, instead, that she sleep on the side of the marital bed, and she did so. On this occasion, however, she woke in the morning to find the appellant had his hand inside her underpants. He was rubbing her vaginal area and pushed his finger into her vagina. B was lying on her left side facing him; it “would have been his right hand” which he was using. She told him to get off her; he responded that she should relax and enjoy it. She said that she did not want to relax, pushed him away and ran out into the bathroom. She did not see her sister anywhere. B did not say anything to her sister or anyone else about what he had done. That event was the subject of the first of the indecent assault counts against the appellant.
Again, on a third occasion, B stayed with her sister and slept on the side of the bed, M once more having reneged on a promise to make up the couch. The following morning, B woke to find the appellant putting his hand into her underpants and moving his finger into her vagina (the second of the indecent assaults charged). He asked her to take his penis in her mouth and suck it. She responded that if he put his penis anywhere near her mouth, she would bite it off. She pushed him away and went into the bathroom.
On the fourth and final occasion on which B stayed at her sister’s house, the latter was pregnant; it was September or October 1974. B said she would stay only if M promised to make up the couch for her. M made that promise but, at bedtime, said that she did not want to pull sheets out for just one night and did not make up the couch. B was upset and tearful, but again, got into the bed with her sister and brother‑in‑law. After a while, she heard them having sexual intercourse and told them to stop. When M realised B was awake, she told her husband to stop but he persisted, saying that B was enjoying it. M was angry and told him she would not forgive him.
The next morning, B woke with the appellant on top of her, attempting to put his penis into her vagina (the attempted rape count). She told him to get off, saying “Your wife’s pregnant...what are you doing?”. Again, he told her to relax and she said she did not want to. She pushed him off and he got out of the bed and left the room. She stayed in bed crying. Although B’s evidence was that on each of the four occasions her sister was gone from the bed when she awoke, she said that on none of the four occasions was she conscious of M getting out of bed.
B said that about two weeks later, M had her 21st birthday party. B was in the kitchen when the appellant tried to grab her breast. She said that if he ever touched her again, she would tell her father. He did not, after that, make any attempt to touch B in any way and she did not stay with the couple again. Although she generally confided in her sister, she did not, on any of the relevant occasions, feel that she could tell her that the appellant was molesting her. B said nothing of what had occurred to anyone until 1994, when she had conversations about the events with her brother and her husband. She did not go to the police about the matters until 2008, after her mother had developed dementia, because it would have been too distressing for the latter.
B was cross-examined about the timing of events. She agreed that she had previously said that the first occasion of her sleeping over was in August or September 1973, and the second was a couple of months after that; the third was a couple of months again after the second. She said that her best estimate was that the incidents were about two months apart, but it might have been more or less. She was sure about the timing of the last incident, because it was shortly before her sister’s 21st birthday in October 1974. B conceded that in her initial police statement she said that it was on the first occasion she had stayed with her sister that the appellant first “tried to do anything to [her]”. That was wrong, she acknowledged: he had not done anything to her on that visit.
B rejected the suggestion that what she was supposed to sleep on was a single bed with a bedspread on it, insisting that it was a sofa bed or couch. Asked about why, when first faced with the prospect of having to sleep with M and the appellant, she had not made the couch up herself, she said that it was not her house, and her sister did not want her to use her sheets. She did not expect anything untoward to happen, so she agreed to sleep in the double bed. Cross‑examined about why on the second occasion, after the experience of the first, she did not make the bed herself, B said that M had told her it would be “okay”, so she agreed again to sleep in the bed.
Asked why on the third occasion on which her father had urged her to stay at her sister’s house, she did not think of an excuse not to do so, B said that she enjoyed spending time with her sister. B said that this time she was insistent that she would not sleep in the double bed again, but her sister refused to make up the couch. She did not do so herself because it was not her house. On the final occasion, she made her sister promise to make the bed, but M ultimately refused to do so. Although B cried, M did not quiz her about why she was so upset. Questioned why she had remained in the bed on that occasion while her sister and husband were having sex, she said that she froze.
B agreed that the apartment was small, and that anyone speaking in a raised voice would be heard through it. She was asked about telling the appellant to get off her on the first occasion on which she was sexually assaulted, and whether it would have been audible to her sister in the small apartment. She said that she spoke “in a quiet voice”. However, she agreed that in her original statement, she had referred to “yelling” at the appellant, although later she had made an addendum statement in which she said that she spoke in a low voice. When questioned at the committal proceedings, though, she said that she had been “loud and assertive”.
M’s evidence
M was called as a Crown witness. She confirmed that early in her marriage she had lived with her husband in the flat at East Brisbane. In late October 1973, the appellant, who was a painter, had gone to work in Darwin. She joined him there in early November. They returned to Brisbane just before Christmas, but her husband went back to Darwin after the New Year, coming back to Brisbane at the end of February 1974. That account of their whereabouts was supported by tendered correspondence, including a letter which B agreed she wrote to her sister and brother-in-law, apparently in mid November 1973, referring to their absence in Darwin.
M said her parents constantly visited them at East Brisbane. She had a close relationship with B, but once she began living with the appellant she did not invite her to stay because she knew that their father would not allow it. It was never even discussed because she knew that it would not have been possible. M had, however, written a letter to her husband in late January 1974 while he was still in Darwin, saying that her father was going to let B stay with her on the weekend to keep her company. That had not in fact eventuated. B had never slept in M’s marital bed, or been present when the latter engaged in sexual activity with the appellant.
M said that the sunroom at the entrance of the East Brisbane flat contained a bed, not a couch, which had been put in the room for her younger brother to sleep on while his parents and B were in Europe. It remained there, with a bedspread and pillow on it. M said that there was a telephone at her parents’ house; her parents had obtained it about the time that she had married.
An aspect of the way M’s evidence about providing a statement was treated bears mention, because the Crown relied on it as relevant to the jury’s assessment of her credit. It is evident from discussion between counsel and the trial judge after the opening of the Crown case that the Crown prosecutor in his opening referred to M’s having seen a solicitor before she gave a statement to police. Defence counsel complained of the inference that there had been some reluctance on her part and of the apparent attempt to undermine the witness’ credibility. That view was justified; it could in no way have been probative of the Crown case to show that one of its witnesses was initially reluctant to provide a statement. There was no point to the comment except to diminish the effect of M’s evidence; which was simply impermissible, given that it was the Crown prosecutor who was calling her. The matter was left on the basis that the appellant’s counsel could cross-examine about the circumstances in which M’s statement was made. He did so. M said that she had been waiting for police to approach her, but nothing had happened until her solicitor had asked the police to take a statement from her.
Oddly, and without objection, the Crown prosecutor was permitted to cross-examine M, his own witness, on the point, putting it to her that police had asked her whether she would make a statement and that she had declined, saying she wanted to speak to her husband’s lawyer first. She rejected that proposition. The issue plainly caused the jury some concern because they sent a note to the judge, observing that there seemed to be some confusion about whether M was reluctant to give a statement or the police were reluctant to pursue it, and asking whether there was a police record which could put the matter beyond doubt. Defence counsel did not, as might have been expected, contend that M’s evidence on the point (as a purely collateral issue) was final. Instead, the Crown prosecutor called the investigating police officer and, without objection, elicited evidence from him that M had declined to provide a statement and said that she wanted to speak to her lawyer. Some months later, he was advised that the defence had asked that a statement be taken and he did so.
The whole sequence of evidence is remarkable. Once that issue had been raised in the Crown opening and M had given her evidence about it, it is extremely difficult to see why the prosecutor was permitted, without challenge, to cross-examine her about it. Even more extraordinary is the fact that he was then permitted to call the police officer to give evidence on a matter going only to credit, and the credit of his own witness at that. It must be said, however, that none of those steps, apart from the comment in the opening, met with any demur from defence counsel, but it is difficult indeed to see the forensic advantage for his client in his quiescence. It seems entirely possible that the respondent is correct in saying that the jury took an adverse view of M’s evidence because of what the police officer said about her reluctance to make a statement.
Other evidence in the Crown case
Other witnesses for the Crown were B’s father, her younger brother and her husband. B’s father said that he could not recall B staying overnight with her sister. He did not think he would have given permission for her to do so. Pressed, however, by the appellant’s counsel with the proposition that he would not have encouraged B to stay with M, he said,
“They are sisters. And as sisters you got to allow them to stay with them”.
Nor was he receptive to the suggestion that that would not apply to a husband:
“Nothing wrong with the husband if you know who he is. I wouldn’t judge [the appellant] – ”.
However, he agreed with the proposition that there was no reason that he could think of as to why he would have encouraged B to stay with M and her husband.
B’s younger brother confirmed that in 1994 B complained to him of sexual abuse by the appellant, without further elaboration. He said that he had slept on a couch or bed in the East Brisbane flat while his parents were overseas. His recall was that it was a single bed. He remembered that his parents had a telephone, but he thought they had obtained it in 1975 or 1976. It was possible that it was earlier, but he doubted it. B’s husband recalled that in 1994, she had told him something to the effect that the appellant had attempted to rape her. Because she was upset, he did not press for detail.
The appellant’s evidence
The appellant gave evidence in his own defence. He said that B, her parents and brother had constantly visited him and M at the East Brisbane premises, but B had never slept there. The only member of his wife’s family who had stayed at their flat was M’s brother, who was there for about two months between June and August 1973 while his parents were overseas. They had acquired a bed for him and it was left in place, still made up, after his departure. The flat was very small; it was possible to hear everything going on it. The children in the apartment next door could be heard running up and down the corridor.
The appellant confirmed that he had gone to Darwin two months before Christmas in 1973 and returned in February, apart from a brief visit for Christmas itself. He had never touched his sister-in-law or made any sexual advance to her. He agreed under cross-examination that B was a shy, quiet girl who lacked independence. He had had nothing to do with her since 1994; up until that point their relationship had seemed normal. He denied that she had slept overnight at the flat or shared a bed with him and his wife.
The appellant’s contentions
The appellant contended that B’s evidence, on which the Crown case entirely depended, was in many respects improbable. It was clear from B’s account that she would have required her father’s consent to stay at her sister’s flat, and the father said he did not think he would have allowed her to stay there overnight. It was unlikely that B would have been prepared at any stage to share a bed with her sister and husband, and more particularly so after she had had the experience of their having sexual intercourse beside her. If she had, in fact, been made to sleep with M and the appellant on the first occasion of staying over and sexually assaulted by the latter on the second occasion, she would surely have offered some excuse not to go there again. In relation to the first count, her description of the appellant lying on his right-hand side while using his right hand to fondle her, was inherently improbable.
It was implausible that the appellant would have committed the acts at a time when his wife must have been in the small flat, in which noise travelled easily. There were inconsistencies in B’s evidence as to whether on the occasion of the first assault she had spoken quietly to the appellant or had yelled at him. B had said that there were gaps of a couple of months between the first, second and third of the occasions on which she stayed at her sister’s house, which did not sit with the evidence that the appellant was in Darwin from late October or early November 1973 until the end of February 1974. B had conceded that in her first statement, she asserted that the appellant had assaulted her on the occasion of the first sleep-over, but had changed that version at trial. M had contradicted B’s evidence that there was no telephone at her house, while their brother’s recall of sleeping in a single bed there was at odds with B’s insistence that it was a couch. It was significant that B had not made any complaint to anyone for 20 years. It might have been expected that she would disclose to her sister what the appellant had done. The evidence of M should have caused the jury a reasonable doubt about B’s account.
The respondent’s contentions
Counsel for the respondent Crown said that it was a case in which the jury was best positioned to assess the witnesses and to decide between the competing versions. B’s conduct had to be assessed in the light of the fact that she was a small, quiet young girl, not an independent type. It was not surprising that she was so embarrassed by what had happened on the first occasion she stayed at her sister’s flat that she was unable to raise it on later visits or to tell anyone, including her sister, about what had happened. She was plainly torn between affection for her sister, whose company she wanted, and her reaction to the appellant’s conduct.
B’s having said in her police statement that the first visit was the first time the appellant “tried to do anything to” her was not a material inconsistency; she had not gone into any detail on the subject. Any mistake about whether the appellant used his right hand while lying on his right side in the first offence was insignificant and unremarkable after the lapse of 40 years.
The evidence of B’s brother conflicted with that of M as to whether there was a telephone at the parent’s house, but it was, anyway, a minor feature. Although in his statement he had described what he slept on as a bed, that point was made at the trial and, clearly, had not persuaded the jury. The evidence of B’s father was effectively neutral; he plainly had no clear recollection of events. Although the flat was small and noise travelled, it was not uncommon that people prepared to commit sexual offences would do so, notwithstanding risk.
The jury was entitled to reject M’s evidence. She was contradicted in her assertion that there was no discussion about B’s staying over by the letter that she had written to her husband in Darwin. Her reluctance to provide a statement to police would have given the jury a reason to doubt her reliability as a witness. The period of delay in the case was dealt with by a Longman direction which brought the relevant factors to the jury’s attention. It was open to the jury to accept B’s account and to find the charges established beyond reasonable doubt.
Conclusions
A number of the points made for the respondent may be accepted. B’s father was a very elderly man by the time of trial, whose evidence vacillated as to whether he would have approved of B’s staying with M. The fact that he agreed that he could not think of any reason for encouraging her to stay was, after the lapse of 40 years, not very compelling evidence against her having done so. As to whether there was a telephone, the jury might well have thought that B’s brother was in a much better position than M to remember when his parents acquired one, given that he lived with them and she did not. In any event, it was, as the respondent said, a trivial point. As the respondent submitted, the risk of being caught is not necessarily a deterrent to a determined offender. Nor is it difficult to understand why B, with her sheltered upbringing, would have found it extremely difficult to talk about the appellant’s behaviour, particularly to his wife.
But there are greater difficulties with the case. The most obvious is that it depended on an uncorroborated account of events given after the lapse of 40 years. There necessarily arose questions about the reliability of B’s recall. The fact that she had previously complained to her brother and husband could not add significantly to confidence in the accuracy of her account of the four occasions, because those complaints were made after two decades and were devoid of detail.
The inevitable problems of memory after such a long period are illustrated, to some extent, by B’s inconsistency as to on which of the occasions the appellant had first attempted to molest her. It was unlikely, too, that B’s recall of a sequence of assaults occurring at roughly two month intervals after her first stay with M in September 1973 could have been accurate, in light of the evidence of the appellant and M, supported by the correspondence, as to his absence in Darwin for four months from late October 1973. B’s inability to recall which hand the appellant had used on the first assault was, as the respondent pointed out, entirely unsurprising after the lapse of forty years, but it was a manifestation of the effects of delay on memory; as, possibly, was the inconsistency in her evidence as to whether she had raised her voice in rebuffing the appellant on the same occasion.
The fact that B’s account was contradicted by that of the appellant and M was, of course, relevant. The respondent did not point to any aspect of the appellant’s evidence which would compel its rejection. The reasons advanced for discounting M’s evidence are not powerful. M was asked whether “while [she was] living with [the appellant]” she had asked B to stay and whether it was suggested to B in her presence that she should do so; it was in response to those questions that she answered in the negative. That was rather a different context from the circumstance in which the appellant was living in Darwin and the prospect of B’s staying with M was raised (by whom was unclear), and there was no necessary inconsistency between the two positions. M’s choosing to speak to a lawyer before providing a statement in a context in which her husband was charged with offences against her sister, would hardly provide a reason for rejecting her evidence, although there is, I think, some risk that the jury’s view of M’s reliability was affected by the police officer’s contradiction of her version of events.
Had the evidence of M and the appellant denying B’s claims been the only consideration, though, I do not think it could be said that the jury must inevitably have had a reasonable doubt about the appellant’s guilt. The fundamental problem is that although one might accept B as an honest witness who had, indeed, suffered at the hands of the appellant, there was, as the appellant submits, an inherent improbability in the repetition of events she described.
The very features on which the respondent relies as explaining why B did not complain – her youth, innocence and strict upbringing – are those which make hard to accept that she could be induced after one occasion on which her sister and brother-in-law had sex beside her, and another on which her brother-in-law sexually assaulted her, to expose herself twice more to a similar experience. The explanations that she was prepared to stay because she enjoyed spending time with M, and that she slept in the marital bed rather than adopting the obvious alternative of sleeping on the couch, because the flat and sheets belonged to her sister, challenge belief.
One could readily accept the events B described as having happened once or twice, but the notion that she returned to sleep with the couple three times after the first occasion, with no better explanations than those she offered, should have caused a reasonable jury pause as to whether her evidence of the three assaults could be relied on. The evidence "lack[ed] credibility for reasons which are not explained by the manner in which it was given”.[1]
[1] M v The Queen (1994) 181 CLR 487 at 494.
Given the concerns as to B’s reliability raised by the extraordinary lapse of time before she came to give evidence and the difficulty in the circumstances of accepting as accurate her description of the sequence of offences, it was not, on the test in M v The Queen,[2] open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. I would allow the appeal, quash the convictions and substitute verdicts of acquittal.
[2](1994) 181 CLR 487 at 493.
GOTTERSON JA: I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.
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