R v LAJ
[2017] QCA 268
•10 November 2017
SUPREME COURT OF QUEENSLAND
CITATION:
R v LAJ [2017] QCA 268
PARTIES:
R
v
LAJ
(appellant)FILE NO/S:
CA No 45 of 2017
DC No 44 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Beenleigh – Date of Conviction: 8 March 2017 (Chowdhury DCJ)
DELIVERED ON:
10 November 2017
DELIVERED AT:
Brisbane
HEARING DATE:
30 October 2017
JUDGES:
Sofronoff P and Morrison JA and Brown J
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after trial of one count of rape – where the complainant was three years old at the time of the offence – where the appellant was convicted seven years after the offence – where the appellant appeals the conviction on the ground that it is unreasonable and cannot be supported by the evidence – where the appellant contended that there were key areas of inconsistency – where the appellant identified those inconsistencies – where the respondent submitted that the complainant’s account was consistent, and plausible – where the respondent highlighted that the complainant’s evidence was consistent with preliminary complaints – where the jury were directed on the issues of inconsistency – whether a review of the evidence reveals that the guilty verdict is unreasonable or insupportable – whether it was open to the jury to convict the appellant of rape
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES – IMPROPER ADMISSION OF EVIDENCE – where members of the complainant’s family gave evidence of preliminary complaints – where the complainant’s father gave evidence that the complainant told him the appellant wanted ‘them’ to suck him off – where the appellant now challenges the admission of that evidence on the basis that the word ‘them’ led to a miscarriage of justice – where the appellant now contends that the statement should have been excluded from evidence, or the learned trial judge should have given directions as to that evidence or discharged the jury – where the respondent submitted that the word ‘them’ was not capable of being prejudicial – where no application for redirection was made before the learned trial judge – whether the word ‘them’ caused the jury to speculate impermissibly – whether the evidence was prejudicial – whether there has been a miscarriage of justice caused by admission of the evidence, or a failure to direct on the evidence or discharge the jury
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2)
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, followed
De Jesus v The Queen (1986) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed
R v Soma (2003) 212 CLR 299; [2003] HCA 13, cited
R v Thompson [1983] 1 Qd R 224, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, followedCOUNSEL:
B Mumford for the appellant
G P Cash QC for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Morrison JA and with the order his Honour proposes.
MORRISON JA: For a time the appellant lived in his van in the back yard of Z’s family home. There were three girls in the family: Z, G and Q. On occasion he would look after the children while their parents were out.
On one such occasion Z said that she was sexually assaulted by the appellant. The appellant put Vegemite on his penis and inserted it in Z’s mouth. Z was then three years old.
The appellant was charged with one count of rape. After a two day trial the appellant was convicted.
The appellant has appealed against his convictions on the following grounds:
(a)ground 1: the verdict is unreasonable or cannot be supported by the evidence; and
(b)ground 2: a miscarriage of justice occurred due to the admission of evidence from Z’s father, that the appellant wanted “them to suck it off”; and/or there was a failure by the learned trial judge to direct the jury as to that evidence, or discharge the jury.
The evidence at trial
The principal witness at the trial was Z. Preliminary complaint evidence came from her family members (her grandmother, X; her sister, Q; and her father, D), as well as from P, a family support officer. There were two formal admissions.
Z’s evidence
Z’s evidence was given by way of a statement admitted under s 93A of the Evidence Act 1977 (Qld) and pre-recorded evidence under s 21AK of that Act.
Z was seven years old when she was interviewed by police. She said that when she was three, the appellant was looking after her while her parents had gone shopping. She said she was still in bed. She described the incident as: “He put his rudy in my mouth and put vegemite on it”. When she was asked what happened next, she said “I can’t remember anything else actually”, but “That’s what I could remember”.
She identified the appellant by his name, and as the person who lived in a van in their back yard, and who used to eat with them occasionally. She was asked to identify what a “rudy” was, and after some hesitation she used the word “doodle”. Her subsequent answers made it clear that she was identifying the appellant’s penis.
When asked for further details about the conduct she said “I don’t remember everything we were doing but I remember most of it”. She said the appellant “got the vegemite out of the cupboard and put it on there”, and then, as to what happened next, “he put it in there”. She did not say anything to him and did not know whether he had said anything to her.
She said she had told her grandmother, who then told her parents. When asked what she told her grandmother she said “Well I only told her the yucky bit”.
When asked to explain where she was, and reminded that she had originally said that she was “still in bed”, she explained that this was “near the kitchen”. She gave a description of the layout of the house, including whose room was where inside.
She said the appellant was wearing clothes but said “I can’t remember what clothes”. She then identified that he had taken the Vegemite from a “little cupboard on top of this big cupboard”. Then, when asked to explain how he put the Vegemite on, given that he was wearing clothes, she said “I don’t remember that bit either … He must have tooken his pants off”.
Having explained that she was three years old when it occurred, she was asked how she knew that was her age at the time. She replied: “I remember most of the things that happened and I was only a bit little”. She was asked what her grandmother had told her parents, answering “everything I told her … the yucky bit … just that bit and I told you more but … I didn’t really say anything about it …”
She was asked if anything like that had ever happened at another time, answering “No”. She was then asked whether the appellant had touched her anywhere else, answering “Not really”, and when asked to explain what she meant by that answer, said “No”.
Z’s pre-recorded evidence was given when she was nine years old. She affirmed that she had told the police the truth, and that the appellant had put his “doodle” in her mouth when she was three years old.[1] Using the word “dick” she identified what she called the “doodle” as the appellant’s penis.
[1]AB 32.
In cross-examination, Z adhered to her account. She was asked about a passage in her interview where, it was suggested, she had told the police that she was seven years old when it happened. The passage is:
“INTERVIEWER: So [Z] tell me what you’ve come here to talk to me about today. You did say it was about a yucky thing is that right? Tell me everything about that?
Z: Well when I was three.
INTERVIEWER: Hm hm.
Z: When I was seven I was mum and dad were going shopping and I was still in bed.
INTERVIEWER: Hm hm.
Z: And [the appellant] was looking after me.
INTERVIEWER: Hm hm.
Z: And he I was crying.
INTERVIEWER: Hm hm.
Z: And then he put his rudy in my mouth and put vegemite on it.”[2]
[2]Interview Statement, page 3.
The recording of the interview makes it clear that Z was not suggesting she was seven when the event occurred. That is not surprising as she was seven years old at the time of her interview, and the event had occurred some years previously. Given her very young age at the time of the interview, it is not surprising to find that her thoughts might be strung together in a form less structured than those of an older person. In any event, in cross-examination she denied that she had told the police she was seven years old when it happened, saying “No. It said three years old in the video and I remember being three”.[3]
[3]AB 33 line 39.
Matters arising out of cross-examination included the following features:
(a)Z said she was near the kitchen when it happened, lying down “on one of those baby things … sort of like a cot but it’s not”; she described it as having four poles and “like this sort of bed[4] thingy on top”;
(b)all her sisters were in bed, though she could not recall what time of day it was;
(c)she could not recall how the appellant was standing when he put his penis in her mouth;
(d)she saw that the Vegemite was on his penis when it was put in her mouth, though she did not see him put it on there;
(e)it was put to her, and denied, that she had identified the wrong person as being the perpetrator, and that there was another person with a similar name;[5]
(f)it was put to her, and denied, that the appellant had never put Vegemite on his penis and had not put his penis in her mouth, with or without Vegemite on it;[6]
(g)she confirmed that her grandmother was the first person she told, but she eventually told her sisters, although she said she did not remember telling G; and
(h)it was put to her, and denied, that she was either confused by another event or had made the story up, and it was untrue.[7]
[4]The transcript of the interview wrongly has the word “bent” for “bed”.
[5]AB 36.
[6]AB 37.
[7]AB 39.
X’s evidence
X was Z’s grandmother. She said that in April 2012, Z made some disclosures of sexual abuse to her. She described the occasion as having been prompted by the fact that the girls were playing with dolls and there was a male doll that had an actual penis instead of a mound. X commented that it was disgusting that the male doll had a penis. A short time later Z walked over to her and asked her if she could keep a secret. When X said yes, Z then described how the appellant put Vegemite on his penis and made Z either lick it or suck it. X said she was not sure whether Z said “lick it” or “suck it”.[8]
[8]AB 65.
X was shocked and asked her if she was sure, with Z responding in the affirmative. Z was then crying and X took her into the bedroom so she could tell her mother. Z then told her mother the same thing.[9]
[9]AB 66.
X was not cross-examined.
Q’s evidence
Q’s evidence was in the form of a statement under s 93A of the Evidence Act.[10] Q was then about 11 years old. She was not required for cross-examination.
[10]Exhibit 2.
In Q’s interview, she said that she had gone there to speak to police “about something that happened to my little sister [Z] when she was three”. She then said “there was this man … he was one of my dad’s close friends and … he was babysitting [Z] and he put vegemite on his and … apparently he stuck it in [Z’s] mouth”. She said that it happened “like four years ago” and that Z was three at the time. When asked how she knew about it, she said Z “told mum and dad … and then all of us girls wanted to know”. Then she was asked what Z had told her about it and she answered:
“She said okay … you know how when I was three and [the appellant] was babysitting me and then we were all just like yeah and then … he … put vegemite on his you know and … stuck it in my mouth and … it was really gross and I was really scared.”[11]
[11]Q’s interview, page 4.
She indicated with a downwards motion when she recounted “put vegemite on his you know”, and her later answers revealed that it referred to the appellant’s penis.
Q said that she was told about these events the previous year when Z was six. She identified the man that Z was talking about as “dad’s really close friend he used to live in a caravan at the back yard”.
D’s evidence
D was Z’s father. He said that the appellant lived in his Bedford van in the back yard of their house in about 2008 or 2009, for a few weeks at a time, and over maybe four or five months. D said the appellant was left alone with the children for periods of about half an hour at the most,[12] at times both he and his wife were out, leaving the appellant in charge.
[12]AB 59.
In 2012, Z made some disclosures of sexual abuse to him. He described the occasion as being when one of the girls was playing with a doll that had a penis on it and the grandmother told her to put a nappy on the doll because it was rude. Shortly thereafter, D and his wife found out that Z had told X about the abuse. Then “we all sat down in the room” and Z revealed: [13]
“Yeah, she said you know your friend [the appellant]? I’m like, yeah. And she’s like, oh, one time when you were up the shops with mum, he was babysitting and he came into the room with vegemite on it and wanted them to suck it off.
Was anything else said?---Oh, not to my knowledge.
You said, wanted it to be sucked off?---Yeah.”
[13]AB 60 lines 4-11.
D described the house as being relatively small, with three bedrooms. The children shared rooms, with Z and her sisters sharing one room. The house had a wooden floor and when people were walking around in it you would expect to hear them.
In cross-examination D agreed that the appellant was not staying or living at their house all the time, and that sometimes he might sleep on a couch.[14] When questioned about whether the appellant would be left in charge of the very younger children, D confirmed that he could “if we had to go up to the shop for a minute, we’d be gone for … half an hour, or something like that”.[15]
[14]AB 63.
[15]AB 63 line 45.
P’s evidence
P was a family support officer.
P gave evidence that in December 2012, she was a consultant family therapist. In that role she was engaged working with Z and her siblings. In the course of one of their sessions Z told her some details of sexual abuse. Her account was as follows: [16]
“… we were having a conversation about her parents’ friends and who was safe and who was unsafe, and she named one of her dad’s friends, whose name was [the appellant], and at the mention of his name, she became extremely distressed … [s]he was crying hysterically and finding it difficult to breathe, and shaking, and I just spent some time trying to calm her down … she said that her and this man … had been watching TV at the family home and that the rest of the family were asleep, and that [the appellant] had gotten up and started rubbing Vegemite on his doodle, which I understood to be her word for penis, and that he had then put it in her mouth and told her to lick it off, and that when he had finished, he put the doodle away in his pants and told her she wasn’t allowed to tell anyone. And she also told me that he had touched her private parts, and she pointed to her chest and her pubic area.”
[16]AB 68 lines 22-41.
In cross-examination she confirmed that conversation, also saying that there were two separate acts of pointing to her pubic area and to her chest area.
Admissions
There were two formal admissions,[17] those were:
(a)Z and her siblings were removed from their parents’ care by the Department of Child Safety at the following times: (i) 1 March 2010 until 24 March 2010; (ii) 16 April 2010 until 7 October 2011; and (iii) 5 July 2012 until present; and
(b)Z was born on 17 January 2006.
[17]Exhibit 3, AB 97.
Ground 1- unreasonable verdict
In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[18] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact. SKA adopted a passage from M v The Queen,[19] which said:[20]
“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”
[18](2011) 243 CLR 400; [2011] HCA 13, at [20]-[22] per French CJ, Gummow and Kiefel JJ.
[19](1994) 181 CLR 487; [1994] HCA 63.
[20]SKA at [14]; M v The Queen at 492-493.
In M v The Queen the High Court said:[21]
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
[21]M v The Queen at 493. Internal citations omitted. Reaffirmed in SKA v The Queen (2011) 243 CLR 400.
More recently the High Court has restated the pre-eminence of the jury and the role of a criminal appellate court, in R v Baden-Clay:[22]
“[65]It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”
[22](2016) 258 CLR 308; [2016] HCA 35, at [65]-[66]. Internal citations omitted.
Submissions
For the appellant it was contended that there were key areas of inconsistency, both internal to Z’s evidence and external, that rendered it incapable of acceptance as credible or reliable evidence. There were two particular areas of complaint. The first was the contradictions as between her police interview and her oral evidence, which included:
(a)saying that she was three years old when it occurred, but also saying she was seven years old in the police interview;
(b)saying that she was in bed when it happened, then later saying she was near the kitchen;
(c)the reference to a “cot” that she was lying on; it was said the absence of any reference to this unusual feature in conjunction with the locality brings into question the whole event; and
(d)the mechanics of the event, with the complainant Z lying down and unable to recall how the appellant positioned himself.
The second was the discrepancies in her disclosures to police as compared with her disclosures to other people. This included:
(a)telling police that the appellant’s penis had been put in her mouth, whilst telling her grandmother that he had made her lick it or suck it;
(b)telling P not only of the licking, but that the event occurred when they were watching television, other members of the family being asleep, and no reference being made to child minding or the parents being out; and
(c)further, the introduction in this account of the alleged further touching in the chest and pubic areas, an event denied in the police interview.
It was also contended that there were inherent implausibilities in her account, one of which was that the event was supposed to have occurred while others were present in the house in close proximity and in easy hearing of where she was. A second was the odd description of the positioning of both Z and the appellant[23] which exhibited a lack of understanding suggesting that she did not experience the act at all.
[23]Her lying down in a cot in an area near the kitchen.
Finally, reliance was placed on the passage of evidence where, according to D, Z told him that the appellant “came into the room with vegemite on it and wanted them to suck it off”. It was suggested this gave a ground on which the jury should have concluded that Z’s evidence was unreliable.
For the Crown, it was submitted that Z’s account was consistent, and not so unlikely or implausible as to compel a reasonable doubt. Her evidence was also consistent with the preliminary complaint evidence, particularly the unchallenged evidence of Q. All of the preliminary complaint evidence was consistent in referring to Vegemite being placed on the appellant’s penis and that he wanted it to be sucked off, or something similar.
Further, it was submitted that the inconsistencies and discrepancies were matters for the jury and not so compelling that they could not lead to a conclusion of guilt. The discrepancy early in the interview, when Z referred to herself as being three and seven, was understandable as an innocent mistake as she had not long turned seven when she was interviewed. Further, there was no relevant inconsistency in saying that she was “in bed”, and also “near the kitchen”, given that she referred to some form of bed. It was said that Z’s lack of clarity about the so-called “mechanics of the event” simply revealed the lack of detail from a girl who was three when the event occurred, and seven when asked to describe it to police. Such a lack of detail was hardly surprising. It was submitted that the jury were properly directed and there was an adequate basis for their conclusion.
Discussion
The jury were given the following directions, about which there was no complaint:
(a)they had to be satisfied beyond reasonable doubt to convict;[24]
(b)unless they accepted Z’s evidence as truthful and reliable they had to acquit;[25]
(c)they could accept or reject the whole or any part of the evidence a witness gave; if they rejected a part it did not mean they had to reject the whole;[26]
(d)because of the delay and Z’s very young age it would be dangerous to convict on the basis of Z’s evidence alone unless, after scrutinising it with great care, having regard to all of the evidence and bearing in mind that warning, they were satisfied beyond a reasonable doubt of the truth and accuracy of Z’s evidence.[27]
[24]AB 79 lines 22-35.
[25]AB 84 line 16.
[26]AB 80 line 7.
[27]AB 83 line 31 to AB 84 line 17.
On the question of inconsistencies within Z’s account to the police, and between that account and her accounts to others, the jury were directed:[28]
“Importantly, any inconsistencies between the account of [Z] to the police and in court, and what she told the others, may cause you to have doubt about her credibility or reliability. Whether consistencies or inconsistencies impact on the reliability of [Z] is a matter for you. Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for you to consider in the course of your deliberations. But the mere existence of inconsistencies does not mean that, of necessity, you must reject [Z’s] evidence. Some inconsistency is to be expected, because it is natural enough for people who were asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.”
[28]AB 83 lines 5-14.
In my view, the appellant’s contentions as to fatal inconsistencies and discrepancies should not be accepted, for a number of reasons.
First, there was a core of consistency in the evidence stemming from the police interview when compared with the oral evidence of Z. She consistently maintained that the event involved the appellant putting Vegemite on his penis, and then putting his penis in her mouth. That consistency is supported by all of the preliminary complaint evidence, each account of which included those features.
Secondly, the inconsistencies and discrepancies to which reference was made in Z’s own evidence are not so compelling when the transcript is carefully considered. Z commenced by saying she was three, and maintained that not only in her police interview, but in her oral evidence as well. The reference to being seven[29] is quite explicable as simply being the train of thought of a young girl (then aged seven) as she tried to put her thoughts together to answer the question for the police. Further, when she denied, in her oral evidence, that she had told the police she was seven when it happened, that was true. She was seven when the police interviewed her, and the event she was describing happened some years before.
[29]At page 3 of the police interview.
In my view, there was nothing compelling about her description of where she was when the event occurred, pointing to unreliability in her evidence. She said she was in bed and that the others were in bed, by which she was referring to the other children as her parents were out. I do not see that as inconsistent with then saying that she was “near the kitchen”, considering that the bed she described was something akin to a cot which “had four poles and like this sort of bed thingy on top”.[30] If that was so, it explains why she was lying down.[31] It may be noted that D, who might be expected to have been able to comment on the cot, was not cross-examined about it. Nor, for that matter, was he challenged about the fact that the appellant was left alone with the children.[32]
[30]AB 34 line 38.
[31]As she said in her oral evidence: AB 34 line 29.
[32]AB 59 line 3.
Thirdly, it is evident that Z was not prone to exaggeration or over-elaboration, even when the opportunity presented itself. Her explanation of the event never really varied from its simple terms, with Z saying that was all she could remember. She did not effect any memory of why she was crying or how the appellant put the Vegemite on his penis. She did not effect any memory of what either of them said to each other, if anything, during the event. She maintained that at the time the appellant was wearing clothes, and when questioned about how he managed to get the Vegemite on his penis while wearing clothes, said: “I don’t remember that bit either … He must have tooken his pants off.”[33] By that answer, Z essayed an inferential conclusion, but did not change her story to accommodate it.
[33]Police interview, page 7.
Fourthly, the differences in her account to the preliminary complaint witnesses are not, in my view, so great as to raise such a doubt that a finding of guilt could not be made. The account given to her grandmother was then repeated to her parents, as reflected in the evidence of X, Q and D. That more was said to P does not rob the preliminary complaint evidence of such consistency that it should have been rejected. True it is that according to P there were other areas which the appellant was said to have touched on other occasions. However, P’s evidence of Z’s condition at the time of that conversation might be thought to provide a ready explanation. She said Z was extremely distressed and crying hysterically, finding it difficult to breathe and shaking. It would not be hard for the jury to reason that a seven year old child in that condition may well get some things wrong or over-state them.
Fifthly, the contended oddity about the description of her lying down and the event occurring with the appellant standing, with no greater description than that, is not convincing. Z was three at the time and her account was given when she was seven. The jury may well consider she was so young that a detailed description might have been beyond her, but at the same time her recitation of the events nonetheless true. Similarly, the contention that the proximity of others in the residence somehow tells against the account, lacks cogency. The others were young children, and the parents were out. No version of the events ever suggested that there was another child present at the time, as opposed to being in another room. Z’s account does not suggest the event was prolonged. Given that Z said that she was near the kitchen, the jury may well have reasoned that proximity questions were not particularly compelling.
Sixthly, the admissions[34] would have assisted the jury’s determinations. They revealed that Z was in care, and therefore not in the house, for substantial periods after March 2010. In other words, Z was absent the house for much of the time from when she turned four. The periods of time back with her parents could be discounted as there was no suggestion that the appellant lived in their yard after 2009.[35] That, and the absence of any challenge to the fact that the appellant was left in charge of the children from time to time, means that the jury could conclude that the appellant had the opportunity to carry out the assault.
[34]AB 97.
[35]D’s evidence that it was over four or five months in 2008 or 2009 was not challenged.
Seventhly, no complaint was made about the adequacy of the directions, which included a Longman direction, warning of the dangers of convicting on the basis of Z’s evidence alone: see paragraph [44](d) above. The directions included specific warnings about dealing with inconsistencies, both internally to Z’s evidence, as well as comparing it with the preliminary complaint evidence. Much was made of that in defence Counsel’s address, as is evident from its summary in the course of the summing up.[36] Matters clearly emphasised by defence Counsel were:
(a)that children can be prone to making things up, which was the case with Z;
(b)the “wildly inconsistent accounts” by Z, with particular reference to the evidence of P; and
(c)the implausibility of the event happening in the house where others were proximate.
[36]AB 84 line 39 to AB 85 line 21.
Having reviewed the whole of the evidence, and being careful not to substitute trial by appellate court for trial by jury,[37] I am unpersuaded that it was not open to the jury to accept Z’s evidence as credible and reliable, and conclude that the appellant was guilty. Accordingly this ground fails.
[37]Baden-Clay at [65]-[66].
Ground 2 – miscarriage of justice and misdirection
This ground centred upon the passage of evidence referred to in paragraph [28] above.
Submissions
For the appellant, it was submitted that a miscarriage of justice had occurred because of the prejudice which flows from D’s evidence. According to D, Z said that the appellant had asked “them” to suck the Vegemite off his penis. The jury had previously heard about Z’s siblings and their presence at the time of the offence. It was submitted that the question unwittingly emphasised the prejudice because it asked: “Okay. Now, in her words or as best you can, what did she say to you about what had happened. This is [Z], we’re talking about?” It was said that the defect in the trial was so prejudicial that the failure of the learned trial judge to follow any of the three available courses should be regarded as fundamental and amounting to a miscarriage of justice. The three alternatives were:
(i)refusing to permit the evidence to be adduced; or
(ii)directing the jury about the proper use of that evidence; or
(iii)discharging the jury.
The submission was made that the evidence disclosed offending in respect of another or other complainants, was impermissibly prejudicial[38] and wrongly admitted. The conclusion to be drawn from the evidence, it was said, was that the appellant had a sexual interest in young children. That evidence should not have been received and upon receipt the only remedy or course available was to discharge the jury.
[38]Relying on De Jesus v The Queen (1986) 68 ALR 1; [1986] HCA 65.
It was submitted that the failure of trial defence Counsel to object to the evidence, to seek appropriate directions, and to seek to have the jury discharged, should not stand in the way of a determination that there had been a miscarriage of justice.[39]
[39]Referring to Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 and R v Soma (2003) 212 CLR 299; [2003] HCA 13.
It was also contended that the evidence was inadmissible and that failure to object to it was not fatal to the application based on miscarriage of justice.[40]
[40]R v Buckley [1944] St R Qd 147.
For the Crown, it was submitted that in order to succeed, the appellant had to demonstrate that the use of the pronoun “them” would have resulted in the jury concluded the appellant attempted to procure another child, also present, to engage in sexual conduct. Other than pointing to the presence of other children in the house, the appellant had not articulated why the jury would have taken that view. The evidence was not capable of bearing that interpretation, as signified by the fact that defence Counsel and the learned trial judge were not moved to act on it in any way.
Further, it was submitted that the jury were specifically directed that the evidence of the conversation between Z and her father was not evidence that the events complained of occurred.[41] The evidence of what Z said to her father was admissible under s 4A of the Criminal Law(Sexual Offences)Act. If that evidence also gave rise to prejudice to the appellant, it might have been excluded if the court had been satisfied it was unfair to the appellant to admit the evidence. There was no relevant prejudice from that piece of evidence.
[41]The relevant direction is at AB 82 line 44 to AB 83 line 3.
Finally, it was submitted that if there was any prejudicial evidence inadvertently admitted, the failure to specifically direct upon it did not produce a miscarriage of justice. A direction concerning the word “them” would only have served to highlight the evidence. There was no application to discharge the jury.[42]
[42]Reliance was placed on R v Thompson [1983] 1 Qd R 224 at 227.
Discussion
In my respectful view, the contentions of the appellant must be rejected. Before stating the reasons for that conclusion, it is necessary to set out the evidence which is the subject of the attack, seen in the context of what went before and after.
D recounted that the occasion of the preliminary complaint came when one of the girls was told to put a nappy on a male doll because it was anatomically correct, and shortly afterwards D and his wife went to lie down in another room. The questioning proceeded:[43]
“Okay, but my question was, did [Z] ever tell you about what had happened?---Yeah, we all sat down in the room.
Okay. And was it your understanding that she’d already told [Z’s grandmother]?---Yeah.
And just for the record that’s [X]?---Yeah.
Okay. And you had a conversation with [Z]?---Yeah.
Okay. Now, in her words or as best you can, what did she say to you about what had happened. This is [Z], we’re talking about?---Yeah, she said you know your friend [the appellant]? I’m like, yeah. And she’s like, oh, one time when you were up the shops with mum, he was babysitting and he came into the room with vegemite on it and wanted them to suck it off.
Was anything else said?---Oh, not to my knowledge.
You said, wanted it to be sucked off?---Yeah.
Did she say anything about whether that occurred or not?---I don’t remember.”
[43]AB 59 line 41 to AB 60 line 13.
There are a number of features about that passage to note. D was describing an occasion when he, his wife, Z and possibly X, were all in the same room at the same time. The fact that there were at least one and possibly two other women present at the same time reveals that the question, “Now, in her words or best you can, what did she say to you about what had happened. This is [Z], we’re talking about?”, does not serve to highlight any prejudice. The jury would simply have understood that as meaning that of the two or possibly three females in the one place at the one time, it was Z’s words that were being sought.
Having listened to the audio recording of the hearing, no emphasis whatever was given to the word “them”. The reference was momentary and lacking distinction. The real emphasis in the passage of questions is demonstrated by the question asked shortly afterwards: “You said, wanted it to be sucked off?” The thrust of what was being said, and understood to be said, was not concerned with “them”, but the request by the appellant to have the Vegemite sucked off. That is evident from the audio recording of the evidence.
The difficulties confronting the contentions by the appellant, which lead me to conclude that this ground should be rejected, are as follows.
First, on no one’s evidence was any other child present at the time. True it is that Z said that the other children were in bed in other rooms. But, on no account was there another person present and who might have been the subject of wanting “them” to suck the Vegemite off.
Secondly, the immediate characterisation of the thrust of the response was that it was concerned with the fact that the appellant “wanted it to be sucked off”, rather than by anyone other than Z, or in addition to Z. That the evidence was understood that way is reflected in the summing up. When the learned trial judge dealt with the evidence of D[44] he recounted it as Z having coming in and said:
“You know your friend [the appellant]? One time, when you were at the shops with mum, he was babysitting. He came in with vegemite on his dick. Wanted it to be sucked off.”
[44]AB 82.
Thirdly, having heard that part of D’s evidence, it must be said that he would have impressed as not the most articulate of witnesses, and the jury may well have concluded that his use of the word “them” was simply a speech pattern, rather than a specific reference to more than one person.
Fourthly, there was no application for a direction concerning that evidence or for the discharge of the jury. One reason for that may well be that defence Counsel did not see any vice in the evidence, let alone the superimposed prejudicial impact of the question which led to it. As I have said above, there was good reason to think there was nothing in it. But the absence of any such application makes it more difficult now to establish that there has been a miscarriage of justice.
Fifthly, as submitted by the Crown, a direction was specifically given that D’s evidence could only be used insofar as it related to Z’s credibility. The learned trial judge said, as to the preliminary complaint evidence:
“However, you cannot regard the things she said to her sister, to her father, to her grandmother and to [P] as proof of what actually happened. In other words, evidence of what was said on that occasion, or those occasions, may, depending on your view or your take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything, and you only have to think about it for a moment. Just because you say someone committed an offence to someone else, doesn’t mean that it occurred, because they weren’t there; they didn’t see it.”[45]
[45]AB 82 line 44 to AB 83 line 3.
Sixthly, the evidence was admissible under s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) as being evidence of “how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant”. In my view, the evidence did not disclose offending in respect of another or other complainants and, in context, did not indicate that the appellant had a sexual interest in young children. It did not impress as being that when it was given, it was not understood that way at the time, and it was not left to the jury as having any such connotation.
Finally, there is substance in the submission by the Crown, that to have given a specific direction as to the word “them”, would have only served to highlight the evidence of the complaint and emphasise the consistency of the preliminary complaint evidence.
The question whether there has been a miscarriage of justice requires that this Court proceed as the High Court laid down in Darkan v The Queen:[46]
“[84]An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.”
[46](2006) 227 CLR 373; [2006] HCA 34, at [84]. Internal citations omitted.
As was said in Weiss v The Queen:[47]
“[41]That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.”
[47](2005) 224 CLR 300; [2005] HCA 81, at [41]. Internal citations omitted.
As will be apparent from what I have said in respect of ground 1 and 2 above, I have undertaken an assessment of the whole of the evidence, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record.
That task is made easier in this case than in others because: (i) Z’s evidence is wholly recorded in audio and visual form; (ii) all other witnesses were really preliminary complaint witnesses, and none were challenged as to their evidence of what they were told by Z.[48] That being so, the natural limitations are significantly less than they are in the usual case.
[48]Q’s evidence was recorded in audio and visual form, and she was not required for cross-examination; X was not cross-examined; and neither D nor P were cross-examined to challenge that part evidence.
In paragraphs [44] to [55] above I have referred to a number of the features in the evidence that provide a substantial foundation to conclude that Z’s evidence was reliable and credible, supported, as it was, by the preliminary complaint evidence. In addition to that I add the following.
Z was a witness whose evidence did not suggest anything but a reliable core of recollection of the fact that the appellant put Vegemite on his penis then inserted it in her mouth. Her evidence was given firmly, calmly and, for her age, deliberatively. The only time she looked discomforted or upset was when: (i) she was asked to say a word other than “doodle” and she was evidently embarrassed to do so; (ii) she was questioned about being taken into care from time to time, when her answers became quite terse;[49] and (iii) she was being pressed that what she said was not true, and that the appellant had not put his penis in her mouth.[50]
[49]AB 36 lines 23-29.
[50]AB 37 lines 18-34, AB 39 Lines 11-20.
Z was also precise at times, such as: (i) correcting her position as “near the kitchen”, not in the kitchen;[51] (ii) correcting that it was just her sisters who were in bed, not her brother as well, as he had not been born;[52] and (iii) saying that she saw the Vegemite on the appellant’s penis, but not him putting it on.[53]
[51]AB 34 lines 10-18.
[52]AB 35 lines 1-4.
[53]AB 35 lines 15-27.
Further, when the occasion might have prompted an embellishment of her evidence she did not do so. Examples of that are: (i) maintaining she did not recall what was said at the time, by either;[54] (ii) not recalling how he was standing at the time;[55] and (iii) maintaining that she did not recall telling another sister, G.[56]
[54]AB 34 lines 43-46.
[55]AB 35 line 9.
[56]AB 37 line 4.
The jury evidently accepted Z’s evidence. As I have concluded in respect of ground 1, it was open for them to do so. Having made an assessment of the evidence, and making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, it is my conclusion that the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. I do not consider an innocent person has been convicted.
This ground fails.
Disposition
For the reasons I have expressed above, the appeal should be dismissed.
BROWN J: I agree with the reasons for judgment of Morrison JA and the order proposed by His Honour.
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