R v MBK

[2011] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBK [2011] QCA 10

PARTIES:

R
v
MBK
(appellant)

FILE NO/S:

CA No 201 of 2010
DC No 106 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2011

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED –where the trial judge directed the jury that a possible explanation for the complainant’s sexual awareness may be sexualisation by the appellant – whether direction resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant submitted that the complainant’s evidence was inconsistent and improbable –  where initial disclosures by the complainant to her mother were later elaborated on in a police interview – where the complainant initially provided a false explanation for being upset – whether conviction unsafe and unsatisfactory

COUNSEL:

D C Shepherd for the appellant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MUIR JA:  The appellant was convicted, after a two day trial of three counts of exposing a girl under 12 years to an indecent act, two counts of unlawfully and indecently dealing with a girl under 12 years and one count of unlawfully procuring a girl under 12 years to commit an indecent act.  He appeals against his convictions.  The appellant was either 13 or 14 years of age at the time of the offences.  The complainant, the appellant's stepsister, was either seven or eight years of age at the time of the count 1 and 2 offences and eight at the time of the others.  The counts on the indictment were:

Counts 1 & 2:     Between 1 January 2008 and 1 January 2009 exposing the complainant to an indecent act.

(The appellant was alleged to have masturbated in front of the complainant in the TV room of the house in which they lived with the complainant's mother and the appellant's father.)

Count 3: Between 30 December 2008 and 5 January 2009 unlawfully and indecently dealing with the complainant.

(The appellant was alleged to have kissed the complainant and put his tongue in her mouth as she lay on top of him.)

Count 4: Between 30 December 2008 and 5 January 2009, unlawfully procuring the complainant to commit an indecent act.

(The appellant was alleged to have induced his sister to insert two fingers into her vagina.)

Count 5: Between 30 December 2008 and 5 January 2009, unlawfully and indecently dealing with the complainant.

(The appellant was alleged to have inserted two fingers into the complainant's vagina.)

Count 6: Between 30 December 2008 and 5 January 2009, exposing the complainant to an indecent act.

(The appellant was alleged to have masturbated in front of his sister in his room.)

The grounds of appeal

[2]      The appellant appeals on grounds that:

(a)     There was a miscarriage of justice as the trial judge wrongly directed that if the jury thought the complainant was more sexually aware [than was normal for a child of her age], one possible explanation might be her sexualisation by the appellant;

(b)     The verdict was unreasonable or could not be supported, having regard to the evidence.

The evidence before the jury

[3] The complainant's evidence took the form of a tape recording of her interview with police officers pursuant to s 93A of the Evidence Act 1977 (Qld) made on 10 January 2009 and a pre-recorded video tape of her further evidence-in-chief and cross-examination on 9 March 2010 pursuant to Part 2, Division 4R of the Evidence Act 1977 (Qld). The complainant's mother and the appellant's father gave evidence. The appellant did not.

[4]      When interviewed by a police officer on 10 January 2009, the complainant gave the following account.  The appellant had abused her sexually "a couple of days after New Year's Eve".  The first such incident occurred in the complainant's bedroom when the complainant, at the appellant's instigation, inserted two fingers "at the front" of what she referred to as her "fanny".  She extracted her fingers after about 30 seconds and replied, "Yes", when asked, "Does it feel good?"  She was afraid to tell the appellant to stop his conduct and felt "really bad and sad, angry … weird … weak".

[5]      The next incident, which took place also in her room, was the appellant masturbating in front of the complainant.  She described what he did and said, "Some sperm come out of his willy".  She described the appellant's penis in some detail.  The appellant had masturbated in front of the complainant "about four times before":  twice when the complainant and the appellant were watching television in the television room and twice in her room.  One such incident in her room occurred in 2009, after New Year.  She thought that two such incidents may have taken place in December 2008.

[6]      The third incident occurred when the appellant, in the complainant's room, told her about "69", saying, "[T]he girl goes on the bottom of the man and the man goes on the top, and the girl sucks the man's willy and the boy licks the girl's fanny".  On a subsequent occasion in the appellant's room, the appellant inserted his hand down the complainant's pants and placed his fingers in or about her vagina.  Either just before or after engaging in this conduct, the appellant demonstrated the "69 position" to the complainant on the bed in the appellant's room.  She was on her back, he was on top of her and they were both fully clothed.

[7]      On the evening after the last of the incidents, the complainant cried after going to bed.  Hearing her, the complainant's mother came in and inquired as to the cause of her crying.  The complainant then informed her mother of what had happened.

[8]      Before describing her allegations of sexual misconduct in the above sequence, the complainant had said, compendiously, that she was told of "this thing called sixty nine"; shown masturbation; tongue kissed; digitally penetrated by the appellant; made to masturbate the appellant and rubbed on the stomach and back by the appellant with his penis.

[9]      On 9 March 2010, in her pre-recorded evidence-in-chief, the complainant gave the following account.  The first incident described was the appellant making the complainant lie on top of him as he kissed her, placing his tongue in her mouth as he did so.  The next incident she described was the appellant's telling her to move two fingers in and out of her "fanny".  At the time, the appellant was sitting next to the complainant on a bed.  When asked how it was that she stopped such acts, she replied, "I just felt like stopping so I did" and that the appellant said, "You can stop now if you want".  At the time she was wearing underwear and to comply with the appellant's request, she put her hands down the front of her pants.

1. The complainant then said that when she was in the appellant's room, "He got his willy out and started shaking it up and down".  She observed the appellant ejaculate about 10 or 15 seconds after he began to masturbate.  The door was slightly ajar at the time and the parents were sleeping on a couch in the lounge room.  The incident occurred around the New Year period in 2009.  When the appellant stopped handling his penis, he told her to get a paper towel, "[S]o he could wipe down the stuff that came out ".  She complied with his request.

1. She said she had seen the appellant "shaking his willy" "two times before" and that happened in the TV room.  The two TV room incidents occurred on the same day and on both occasions the complainant got some kitchen paper for the appellant to clean himself up.  In her room, the appellant inserted his hand down her pants and placed two fingers in her vagina.  Asked how it felt, she said, "It hurt a little bit because his nails were a bit long".  At the time she was lying down and the appellant was sitting by her side.  There were three masturbation incidents in all.  In cross-examination, in response to the suggestion that she and the appellant fought "nearly every day", she said, "Nearly".

1. The complainant's mother gave evidence as follows and to the following effect.  Not long after the complainant had gone to bed she came out of her room crying:[1]

"… She said she felt sad and she said she missed her teacher and she missed 2008.  We'd just had New Years Eve and she was missing the previous year and her previous teacher."

[1]Record, 21.

1. The complainant's mother told her to go back to bed and that they would talk about it in the morning.  She heard her daughter continuing to cry and as she walked towards the complainant's bedroom, the complainant was coming back towards her in the hallway.  The complainant said that she had to tell her mother something "very important and it was the most important thing she'd ever had to tell me".  The complainant said:[2]

"[The appellant has] been doing things to me in my room". She said he'd been rubbing his willy till the white stuff came out.  He told her about some positions, about the 69 position and, yeah, that I - I think I said to her at that stage, "Was that the first time?", and she said, "No. He's done it a few times before".

[2]Record, 22.

1. At the time, the complainant:[3]

"… was very tense. Her body posture was very tense. She was I suppose almost - like, she was hyperventilating, very shallow breathing. She - yeah - she just appeared to me to be very, very tense and very, very upset.
…
She said he'd - he'd touched and kissed her boobs. That he'd rubbed his willy on her chest and her back and he'd showed her how to rub her fanny like girls do it and she held up her two fingers when she told me that."

[3]Record, 22.

1. The complainant's mother admitted that in a statement provided to police, she had said that the complainant told her that, "[O]n that night … he had been rubbing his penis until white stuff came out … [but] he had done that three or four times … that he had been kissing her boobs … he had been rubbing his penis on her back and chest … he had been kissing her … he had showed her how to rub her fanny, how girls do it … and that he showed her how to do the sixty-nine position".  She admitted that on the next day the complainant had said that she was "scared that [the appellant] is going to say that I did things as well … that he asked me to put my hands on his willy and rub it".  She denied that the complainant and the appellant did not have a good relationship.

1. The appellant's father gave evidence of an occasion on which the complainant's mother had said to him that the appellant "needs to pack his bags, and he's going back to his mother's".  She then told him what had happened.  He questioned the appellant, who denied the allegations.

The unsafe and unsatisfactory ground

1. The substance of the argument advanced by counsel for the appellant is as follows.  The complainant's evidence was internally inconsistent and inherently improbable.  It was also inconsistent with other evidence.  The probability that a 13 or 14 year old boy would, without warning or any suggestion of security, masturbate in an open area of the family home in front of his younger step-sister is so remote as to make it fanciful.  Similarly, embarking on a series of sexual acts in front of or upon his step-sister in the family home while the parents are at home and in circumstances where there was nothing to indicate that his conduct would not immediately be disclosed, is equally as fanciful.  Also, the idea that the appellant would send the complainant out to fetch tissues for him to clean himself is not credible.

1. The initial disclosures were either added to or not maintained.  The initial disclosure was that events occurred in the complainant's room.  This was later expanded to certain events occurring in the appellant's room.  The complainant did not initially disclose the two most intrusive or invasive allegations, namely, that the appellant kissed her and placed his tongue in her mouth and that he had put his hand down her pants and touched her genital area or inserted two fingers into her vagina.  These further allegations first arose in the police interview, which seems to have occurred about a week after the events.  That delay was unexplained.

1. The complainant's evidence that she told the appellant that touching herself felt good because she was scared, and of being afraid not to do any of the things the appellant asked for that reason, was improbable.  Her claims of fear were not repeated in her pre-recorded evidence-in-chief and cross-examination.  In that evidence, in some cases she said she was stopping, or the appellant told her to stop.  In light of the complainant's evidence that she sometimes got out of bed and went to her parents because she was scared of imaginary things under her bed, her failure to repeat her claim of fear to a police officer, but not her mother, is telling.  There is no evidence to suggest any basis for the complainant to fear the appellant.

1. The complainant's description of events, particularly in relation to counts 3 and 4, has about them an unrealistic air of nonchalance.  There are other aspects of the complainant's evidence which suggest significant unreliability.  She initially provided a false explanation for being upset:  saying she missed her teacher of the previous year.

The unsafe and unsatisfactory ground – consideration

1. The "initial disclosures"  referred to in the appellant's counsel's submissions appear to be a reference to the evidence of the complainant's mother concerning the conversation she had with the complainant when the complainant first alleged sexual maltreatment by the appellant.  I do not regard the complainant's revelation that some of the events in question occurred in places other than her room as reflecting adversely on her credibility.  The complainant's mother's understanding that she had been told the appellant's "been doing things in my room" could have been the product of an imperfect recollection.  If the complainant's mother's  recollection was accurate, it may be explicable by the complainant's giving an incomplete account or by the complainant having particularly in mind, when speaking to her mother, the events which occurred in her own room.

1. The complainant's initial account, at least as reported by her mother, was relatively sparse.  That is what one would expect, as the seven year old complainant, according to her mother, was "very, very tense and very, very upset".  Nevertheless, that account included a number of acts of masturbation, discussion of "the 69 position" and instruction on "how to rub her fanny like girls do it" with an indication that two fingers had been used.  The account also included assertions that the appellant had "touched and kissed her boobs" and that "he'd rubbed his willy on her chest and her back".  The latter of these allegations, but not the former, was also made in the complainant's police interview.  This discrepancy in the complainant's accounts was not touched on in cross-examination.  Thus, it is correct that one of the initial disclosures was not maintained in the police interview.  But, at least generally, if the initial disclosures were "added to", it was only in the sense that there was some further explanation or elaboration.  There was no inconsistency between the initial brief account and the later expanded account.

1. I do not regard the fact that some of the initial allegations were not persisted in by the complainant in her evidence-in-chief as of great significance.  The complainant was very young.  Some acts were likely to have impressed themselves on her more than others.  Also, it does not appear that either the police interview or the examination-in-chief was conducted in a manner likely to ensure that the complainant's memory in relation to sexual misconduct was tested or prompted.  Of course, there were obvious limits to what could have been achieved in this regard in the complainant's evidence-in-chief.

1. There was nothing objectively improbable in the accounts given by the complainant.  Those accounts were consistent.  No weaknesses in them were revealed in cross-examination.  The evidence of the complainant's initial account to her mother and the complainant's emotionally disturbed state then, and subsequently, supported her credibility.  So, too, did the few detailed descriptions volunteered by the complainant.  There was nothing contrived or unlikely about their content or the way in which they emerged in evidence.

1. To my mind, there is nothing improbable in the complainant's account of being "scared" and afraid not to do the things asked of her by the appellant.  The complainant, after all, was only seven or eight years of age, approximately half the age of the appellant.  And, the complainant was being asked to perform acts and to observe things which, if her account is to be accepted, she regarded as singularly inappropriate and which made her feel very uncomfortable.

1. I am unable to accept the validity of the contention that the complainant's descriptions of events had about them an "unrealistic air of nonchalance".  Rather, the complainant made her statement and gave her evidence in a simple matter of fact way which, to my mind, added to, rather than detracted from, her credibility.  The complainant's initial reluctance to reveal the true reason for her distress was not explored in cross-examination.  Such reluctance, however, is not uncommon in cases of this nature and, if anything, makes her evidence more, rather than less, credible.  It also assists in showing that the submission that the complainant was motivated by dislike of the appellant and a desire to bring about his expulsion from the family home was ill founded.  There was meagre support for that claim in the other evidence.

1. The challenge to the appellant's credibility on the ground that there was an inherent improbability in the alleged sexual activity having taken place because of the high risk of exposure or detention, was not persuasive.  There was no evidence that, at the time any of the alleged acts were perpetrated, the circumstances were such that detection by one or both of the adults in the house was likely.  The activities were also conducted in a way which made prompt concealment of the nature of the activities possible.  None of the activities entailed the removal of any items of clothing or underclothing.  It is true, as counsel for the appellant submitted, that if the appellant had done the acts alleged, he thereby exposed himself to the risk of the complainant reporting his conduct to her mother.  Such calculated risks, however, are frequently taken in cases of this nature.

1. The fact that the complainant made no complaint immediately after the first incident or incidents was also said to have been inconsistent with the emotional disclosure of the offending conduct by the complainant to her mother.  Counsel for the respondent pointed out, with considerable justification, that the complaint was made immediately after the misconduct had "escalated" to the intrusive extent of digital vaginal penetration.  And it would not be surprising if a child in the complainant's position took time to appreciate the gravity of the subject conduct, and to develop an emotional response.

1. Having considered the evidence before the jury, I have no difficulty in concluding that it was open to the jury on such evidence to be satisfied beyond reasonable doubt of the appellant's guilt.  This ground has not been substantiated.

The misdirection ground

1. The passage in the summing-up directly relevant to this ground is:

"She was asked by the police officer what a fanny does. This is relevant because of the assertion that she was sexually aware for a young child.  She was asked what a fanny does.  She said:

'Well, when women have sex, then baby comes out of there and you go to the toilet with your fanny.

And what about a willy?--  The boy puts it in the girl's fanny when they're having sex and they pee out of it.'

It's a question for you whether that's undue sophistication for an eight year old and then if it is, what weight you give to it.  But also consider the - if she was more sexually aware than other eight year olds, what was the cause of this, whether it was the result of school yard gossip, whether it was the result of her mother reading her what she says was an age-appropriate book 'Where Do I Come From', or whether it was a result of her sexualisation by her stepbrother. All of those are possible. There may be other possibilities that occur to you."

1. Counsel for the appellant submitted that this passage gave rise to a miscarriage of justice because:

(a)         it improperly presumed the guilt of the appellant;

(b)         it wrongly suggested that the complainant's use of language might be evidence of the subject offences, particularly when the only evidence on the point was that given by the complainant's mother; and

(c)         there was no evidence, expert or otherwise, which linked the use of the words to the allegations being made.

It was further submitted that it cannot be presumed that the proposition advanced by the judge that it was possible that the complainant's use of the terms "willy" and "fanny" was a result of sexualisation by her step-brother had no impact on the jury.

The misdirection ground - consideration

1. Also relevant to this ground is that part of the summing-up immediately prior to the above quoted passage in which the primary judge quoted the part of the complainant's record of interview in which she described what she had been told of "this thing called sixty nine" and what she had observed of the appellant ejaculating.

1. It is apparent from the first and second sentences of the quoted passage, that the complainant's degree of sexual awareness had been an issue in addresses.  Defence counsel had argued in her address that the complainant's worldly knowledge of sexual matters might have been attributable to pre-school gossip or to discussions with her mother by reference to a book, "Where Do I come From".  She submitted also that young girls were being sexualised at a very early age in today's society.  The prosecutor had attributed the complainant's knowledge of sexual matters to the appellant's behaviour.  Reliance was placed on the complainant's "particular knowledge of a man's penis, the fact that ejaculate was milky coloured, that it was firm" and "the veins on it".  The issue having been raised, it was appropriate for the trial judge to deal with it.  In so doing, he did no more than remind the jury of the possibilities which had been put forward by counsel in addresses.

1. The direction did not assume that any undue sexual sophistication was caused by any matter in particular, whether sexualisation by the appellant or otherwise.  Nor did the subject passage assert the existence of "undue sophistication" or suggest that the complainant's quoted words should be used as evidence of the offences.  The complainant's knowledge of sexual anatomical detail and sexual conduct, on the face of it, was precocious, and relevant to the jury's assessment of the credibility of her account.  That was doubtlessly apparent to both prosecutor and defence counsel, neither of whom sought a redirection on the point now argued.  This ground has not been made out.

Conclusion

1. For the above reasons, I would order that the appeal be dismissed.

1. FRASER JA:  I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.

1. CHESTERMAN JA:  I agree that the appeal should be dismissed for the reasons given by Muir JA.