R v MDH
[2020] QCA 175
•25 August 2020
SUPREME COURT OF QUEENSLAND
CITATION:
R v MDH [2020] QCA 175
PARTIES:
R
v
MDH
(appellant)FILE NO/S:
CA No of 151 of 2018
DC No 38 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Ipswich – Date of Conviction: 18 June 2018 (Horneman-Wren SC DCJ)
DELIVERED ON:
25 August 2020
DELIVERED AT:
Brisbane
HEARING DATE:
14 May 2019
JUDGES:
Fraser and Morrison JJA and Davis J
ORDERS:
1. The appeal be allowed.
2. The convictions be set aside.
3. Verdicts of acquittal be entered on counts 1, 2, 7, 8, 9 and 10.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of indecent dealing with a child under the age of 16 and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation (counts 1, 2, 7, 8, 9, 10) – where the appellant was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation, and two counts of rape (counts 3, 4, 5, 6, 11) – where the appellant appeals his convictions on the ground that the jury’s verdict of guilty was unreasonable and unable to be supported on the evidence – where all counts relate to the same complainant – where the complainant was the appellant’s niece – where the complainant’s account of the sexual offences was uncorroborated and denied in evidence given by the appellant – where there was evidence which contradicted the complainant’s account of the counts on which the appellant was acquitted – whether, upon a consideration of the whole of the case, the complainant’s credibility or reliability was so damaged that it was not open to the jury to accept her evidence and convict on the counts which they did – whether the jury ought to have entertained a reasonable doubt as to the appellant’s guilt – whether the verdict of the jury on counts 1, 2, 7, 8, 9, and 10 was reasonably open on the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of two counts of indecent dealing with a child under the age of 16 and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation (counts 1, 2, 7, 8, 9, 10) – where the appellant was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation, and two counts of rape (counts 3, 4, 5, 6, 11) – where the appellant appeals his convictions on the ground that the jury’s verdict of guilty was unreasonable given the inconsistency of the verdicts – where all counts relate to the same complainant – where the complainant was the appellant’s niece – where the evidence suggests that the most likely explanation for the not guilty verdicts is that the jury harboured a reasonable doubt about the accuracy of the complainant’s evidence on those counts – whether the inconsistent verdicts demonstrate that the convictions were unreasonable and should be set aside
Criminal Code (Qld), s 210, s 349, s 644, s 668E
Evidence Act 1977 (Qld), s 21AK , s 93ADoney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v the Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v the Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Norris v The Queen (2007) 176 A Crim R 42; [2007] NSWCCA 235, followed
R vBaden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered
R v CAH (2008) 186 A Crim R 288; [2008] QCA 333, cited
R v CX [2006] QCA 409, cited
R v D[2000] QCA 417, cited
R v GAN [2012] QCA 50, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v R (1989) 18 NSWLR 74, cited
R v Spencer [1987] AC 128; [1987] UKHL 2, cited
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, citedCOUNSEL:
L D Reece for the appellant
D Balic for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I have had the advantage of reading in draft the reasons of Morrison JA and Davis J.
The real question in the appeal is whether the guilty verdicts are unreasonable when regard is had to the whole of the record of the trial, including the verdicts of not guilty of five of the eleven charged offences. I respectfully agree with Davis J’s conclusion that the verdicts must be set aside upon this ground. His Honour’s detailed exposition and extensive analysis of the relevant evidence enables me to succinctly state the main features of the case, the combination of which has led me to that conclusion.
First, the complainant’s account of the eleven sexual offences alleged to have been committed by the appellant on seven separate occasions was uncorroborated and denied in detail in evidence given by the appellant which was not implausible on its face.
Secondly, in cross examination there was no real challenge to the detail of the appellant’s evidence or other evidence that was consistent with his evidence.
Thirdly, the only material respect in which the complainant’s evidence was arguably corroborated[1] concerned only the question whether the appellant had the opportunity to commit one of the offences; Mrs GPL’s evidence relating to that point was not consistent with the complainant’s evidence of his recollection;[2] and to the extent that Mrs GPL’s evidence, when considered in the context of the other evidence to which Morrison JA refers, might be regarded as contradicting the evidence of the appellant, that does not justify a conclusion that his evidence upon that point was other than honest, even if mistaken.[3]
[1]See Morrison JA’s reasons at [39] – [42].
[2]See Davis J’s reasons at [232] – [234].
[3]I do not find it necessary to consider whether the jury should have been given specific directions about what the prosecutor submitted to the jury were lies by the appellant and his wife: see [235] of Davis J’s reasons.
Fourthly, for the reasons given by Davis J[4] the evidence suggests that the most likely explanation for the not guilty verdicts is that the jury harboured a reasonable doubt about the accuracy of the complainant’s evidence upon those counts.
[4]See [165]–[179], [212] – [225].
Having regard particularly to those features of this trial I am driven to the conclusion that, despite the jury’s advantage in assessing the evidence at the trial and the primacy of its role in that respect, the guilty verdicts were not reasonably open.
In all other respects, I agree with the reasons of Davis J and I agree with the orders proposed by his Honour.
MORRISON JA: I have had the advantage of reading the draft reasons of Davis J. His Honour’s extensive recitation of the evidence, and synopsis of the relevant legal principles, permits me to express my own reasons in respect of the issues in a relatively truncated way, though it is the case that I have reviewed the whole of the evidence before coming to those conclusions.
The defence case at the trial was not that because of the lapse of time or the age of the complainant, the complainant should be considered an unreliable witness. Any such suggestion was raised only fleetingly. To the contrary, the defence case as opened was that the complainant was a liar about whose truthfulness the jury should be gravely concerned, because the events did not happen. In address that approach was reinforced with the jury being urged that the complainant should be “considered a contradiction of the truth”[5] because: “She is a liar. Plain and simple.”[6]; “My friend will say to you, “No, she’s a kid. She’s confused. She’s mistaken.” She’s not. She’s just a liar, plain and simple.”[7]; “she’s downright dishonest”[8]; and “The reasonable explanation [for inconsistencies] is that she’s lying”.[9]
[5]Appeal Book (AB) 33 line 5.
[6]AB 34 line 27.
[7]AB 38 line 29.
[8]AB 41 line 7.
[9]AB 43 line 6.
Whilst it is true to say that the appellant never assumed the onus of proof, the case framed for the jury was that each allegation on each of the 11 counts was a complete fabrication. The jury were urged to assess the complainant’s evidence in that prism.
When the complainant was interviewed by police in June 2015 she was then 14 years and five months old. She told police she had a general memory, but not a particular one, of offending conduct against her in the years prior to 2013. It was the events in 2013 that she said she could recall, and which formed the basis of each of the 11 counts with which the appellant was charged.
Further, the complainant did not pretend to remember the sequence in which the 11 counts occurred, nor some of the detail of the surrounding facts on each count. The transcript of her police interview reveals the stress she was under in being interviewed about personal matters of such a private nature, and as well, a couple of years after the events.[10]
[10]For example, at one point the police interviewer left to get some tissues, the plain inference being that the complainant was crying (AB 289 line 27). On other occasions the interviewer asked whether the complainant was okay to continue (AB 316), and asked her to close her eyes in order to relate things she could actually remember (AB 288 line 54). And the prosecutor reminded the jury that the complainant could not get through the interview without crying: AB 47.
A further feature of the police interview that the jury would have assessed was the fact that if the complainant was fabricating her accounts, she did not take the opportunity to make the allegations worse. Thus, for counts 1 and 2 the allegation was restricted to touching her genital area or rubbing against her, with no suggestion of penetration of any kind. Similarly, for counts 7 and 8 her account was again of mere touching and rubbing with no suggestion of penetration of any kind. The same applies for counts 9 and 10. Her description of those events in her oral evidence was consistent with what she had said to police, in the sense that there was no attempt to expand the allegations beyond touching.
The complainant made it plain in the police interview, and again in her oral evidence, that she could not put an accurate timeline or sequence on the events. However, the ones that she said she could remember with some detail all occurred when she was living with the appellant and his family. That was in 2013, and at no earlier time. That the complainant left her mother’s house to live with the appellant’s family was not contested. The evidence was that there was a discussion between the two sets of parents, and relevant children, before the arrangement was accepted. The source of the arrangement was that there was friction between the complainant and her stepfather. Whatever the reason, the complainant gave evidence that all of the offences with which the appellant was charged occurred after she commenced to live in their house.
The appellant’s evidence included an acceptance by him that over the period of January to August 2013 when he was working away from home, nonetheless he came home on four to five occasions.[11] Thus, the appellant himself accepted that there were a number of occasions over that period when he was present at the same house where the complainant was living.
[11]AB 159 line 25.
In cross-examination the appellant was challenged on all counts, though the challenge was dealt with in a global way:[12]
“Okay. Now, Mr MDH, you’re well aware of the allegations against you?---Yes, I am.
You understand all those allegations?---Yes, I do.
Every one of those allegations happened, didn’t it?---No, it did not.”
[12]AB 163 lines 34-39.
There are several points to be made about that approach. Firstly, by the time those questions were asked the complainant had already been interviewed by police and had given her oral evidence and been cross-examined based on the instructions of the appellant. Secondly, the appellant had the transcripts of that evidence, and had a substantial time, nearly two years, to become familiar with the allegations against him. Thirdly, the questions were not confined to “offences”, but referred to “allegations”. That comprehended what the complainant said as to how the offences occurred, not just the elements of those offences.
Whilst it might be that not everyone would challenge an accused by that method, nonetheless the appellant was challenged on all counts, and on the basis that what the complainant said was true.
The issues before this Court involved no complaint about the directions given to the jury, nor that the jury may have been led into misusing the evidence in any way. The issues centred solely on whether the inconsistent verdicts rendered the guilty verdicts unreasonable. Further, no issue before this Court involved criticism of redirections in response to the jury’s questions, nor was it suggested that there was any relevant conclusion that might be drawn from that process.
Further, no issue before this Court involved a suggestion that conduct on the part of the prosecutor was either worthy of criticism or had an impact that was in some way relevant to the issue raised on the appeal.
There were, in my view, rational reasons why the jury found the appellant not guilty of counts 3 (the towel incident), counts 4-6 (Poppy’s house) and count 11 (the picture frame incident). These can be stated fairly simply.
As for count 3, in the police interview the complainant said that she had walked to her room after a shower with a towel wrapped around her. The appellant tried to take the towel off her by unwrapping it, but she resisted by holding onto the towel. Then she said that the appellant got the towel off her and started touching her on her breasts and buttocks.[13] In her evidence in chief she said that what she had told the police was true. Then, in cross-examination, it having been put to her that every one of the allegations had been fabricated by her,[14] she maintained her account with the exception that she said the appellant did not get the towel off her.[15] Then in re-examination she explained that whilst the whole towel did not come off he did get the front part of it off her, exposing her breast and lower parts. She explained that the towel was still under her arms and when he pulled it off a bit she put it back on, wrapping it around her.[16] As for the touching, she said that the appellant “tried to touch my breast, but he didn’t really get to”.[17]
[13]AB 303 lines 19-21, AB 304 lines 7-22.
[14]AB 16 lines 33-36.
[15]AB 21 line 38.
[16]AB 41 line 34 to AB 42 line 17.
[17]AB 42 line 24.
Thus, the jury could well have had a doubt about whether actual touching occurred, without disbelieving the complainant, let alone concluding that she had fabricated the account.
As for counts 4-6, the complainant’s evidence as to finding a spare key and opening up the back door was challenged by the evidence of Poppy who asserted there was no spare key with which to open the back door, and the back door could not be opened from the outside. That the back doors could not be opened from the outside was also supported by the evidence of the appellant’s wife and photographic exhibits.
However, the complainant’s evidence in respect of counts 4-6, and in particular how she entered the house, was accompanied by qualifications she put on her own memory. In the police interview she said that the appellant asked her to jump the fence and see if there was a spare key in the room under the house which she did, and she said “I think there was”. The appellant told her to “see if I could open up the back door”, and she did, saying “it opened up the back door”.[18] In her oral evidence she said she retrieved the key and “walked up the stairs to the back door and I opened up the back door”, then walked through the house.[19] She was asked whether she opened the door with the key she had retrieved and the complainant said “Yes. I believe so”.[20] She was then asked whether she had unlocked the door and the complainant responded “I’m pretty sure. That’s how I remember it”.[21]
[18]AB 307 lines 7-14.
[19]AB 23 lines 38-41.
[20]AB 24 lines 10-13.
[21]AB 24 lines 15-20.
Thus, whilst the complainant said she retrieved a key and used it to open the back door, she did put qualifications on her memory in that regard.
Further, whilst the complainant said the appellant took Coke from the fridge, that was not something that Poppy did.[22] That evidence could have been understood as meaning that Poppy did not keep Coke in the fridge at the time that the complainant had contact with him. In his evidence in chief Poppy was only asked “… do you keep Coke in your fridge?”[23] The question was framed in the present tense, not as at 2013. The answer was not evidence as to what was the case in 2013.
[22]AB 32 lines 36-43.
[23]AB 192 line 12; emphasis added.
It was those discrepancies which were highlighted to the jury, and it cannot be doubted that they had an influence on whether they could place sufficient reliance on her account of that particular incident to convict. However, whilst it is true to say that the cross-examination of Poppy and the appellant’s wife did not directly challenge their evidence that the sliding doors could not be unlocked from the outside, it is not right to say that their evidence was uncontested. The complainant had already given her evidence, and it was a matter for the jury to weigh the differences in their consideration.
The jury therefore may have been unpersuaded that the events of counts 4-6 occurred as the complainant said they had. However, that does not, in my view, inexorably lead to the conclusion that the complainant was a liar, or so lacking credibility that their doubts on those counts should necessarily infect all the others.
As for count 11, there were two features that the jury were confronted with, which may well have caused them to not reach satisfaction of guilt beyond reasonable doubt. The first was that this was the only incident in which there was penile penetration. The jury were urged that ordinarily one might think that would cause the event to be fixed firmly in memory, but the complainant remembered this last in her recounting of events in the police interview. Of course, she was at pains to point out that she was not remembering the chronological sequence of events, but nonetheless other incidents were recounted before that one. Secondly, there was evidence from the complainant’s cousin M that she did not keep anything on top of the upright mattress which was placed between the bunk bed and the wall. The complainant had said that while lying on the bed and being assaulted she bumped her head on the upright mattress causing a small picture frame to fall off and hit her on the lip. She did not suggest that the photo frame which fell was of any size, describing it as “only a little one”,[24] nor did she suggest that she received a cut on her lip from the impact, but rather simply that it “hurt my lip”.[25]
[24]AB 339 line 23.
[25]AB 342 line 40.
There was also a degree of tension between what the complainant said as to things on the upright mattress and what was asked of cousin M and the appellant’s wife. The complainant said that cousin M had things sitting on top of it, but she did not describe them as leaning against or touching the wall. She described them as an iPod dock with a “radio thing” and photo frames,[26] and then “photo frames and stuff”.[27] She said what fell down was a “little grey” photo frame.[28] The appellant’s wife was asked whether any “photo frames, lamps, clocks” were “stored” there.[29] Cousin M was asked whether anything was ever “stored or held” there, such as the “pictures or lamps or clocks, or any items”.[30] Cousin M said that there was nothing stored there because the house was a rental and “nothing could mark on the walls”. But nothing that the complainant said referred to something that could do that.
[26]AB 339 lines 14-19.
[27]AB 19 line 31.
[28]AB 342 line 33.
[29]AB 178 lines 25-28.
[30]AB 200 lines 14-16.
Be that as it may, the jury therefore had a piece of conflicting evidence from another witness about one of the aspects of her account.
More significantly, the jury’s inability to be satisfied beyond reasonable doubt on this count may well have been affected by the fact that this event was said to have occurred while the cousins were in the lounge room watching TV, in relatively close proximity to the room where count 11 occurred.
Once again, the jury’s failure to reach the requisite state of satisfaction has an explanation that does not necessarily require them to have disbelieved the complainant as a liar or fabricator, but rather simply had enough doubts that they could not be persuaded.
As for all of the other counts on which guilty verdicts were returned, there was a consistency between the account given by the complainant in the police interview, and the account in oral evidence. Not only consistency but a considerable level of detail. Notably in each case the cross-examiner gave free rein to the complainant by simply asking her to say what happened.[31] In each case the account was consistent with what she had said in the police interview, and was not embellished, nor diminished. In each case the complainant accepted, as she had proffered in the police interview, that she had told no-one about the events until the matters came to light as a result of her entries in a school exercise. Just as she did in the police interview, the complainant explained that the reason she did not reveal anything was because she felt threatened by the appellant.
[31]Counts 1 and 2 (AB 17 line 12); count 9 (AB 29 line 25); count 10 (AB 31 line 10) and counts 7 and 8 (AB 33 line 4).
That consistency in the account of each of the offences was something the jury was entitled to take into account in assessing whether the complainant was, as the defence case would have it, a complete and utter liar who had fabricated her stories, and also whether her evidence could be accepted on those counts, even though it was rejected on other counts. Once the jury reached the conclusion, as they evidently did, that the complainant was not a complete and utter liar who had fabricated the stories, the assessment of the evidence on each count then became a more orthodox analysis which did not necessarily call for wholesale rejection of her evidence simply because it was not accepted on some counts.
Furthermore, in my view, it is wrong to parse and analyse what was said in the police interview as though it was the considered response of an adult, or someone experienced in giving evidence, and familiar with the whole process. This was a teenage girl in a totally foreign setting, recounting matters of a deeply personal and embarrassing kind, and to strangers. And she was pressed to go into levels of detail. Moreover, this was the first time she had ever had to relate the events for recording, and with no time outside of the interview to order her thinking. The interview transcript makes it apparent that she was under stress. Her own account did not pretend to be accurate as to the sequence, timeline, and some details of what occurred. And, of course, this Court does not have the advantage enjoyed by the jury, of seeing the recorded interview and seeing the complainant in the witness box.
In one material respect there was corroboration of the complainant’s evidence. The sequence is significant. In respect of count 10, it was put to the complainant that the only time she had ever been to the GS’s house was when she, along with other children, had visited there and all children were riding bikes and playing on the trampoline.[32] What was expressly put was “that’s the first and only time you’ve actually been there”.[33] The appellant gave evidence that he had never taken the complainant alone in the car to the GS’s house, nor had he ever taken the complainant and cousin Z to that house.[34] However, Mrs GPL gave evidence that on an occasion quite separate from that when all the children were present playing, the appellant brought some car parts to help her husband work on a car and he had two girls with him. In evidence in chief she thought it was cousin M with the complainant,[35] but then said she could not be completely sure that cousin Z was not in the car.[36] In cross-examination she reiterated that the appellant was bringing over car parts to assist working on a car, and there were definitely two girls with him, one of whom was the complainant. She also said she could not be sure whether or not it was cousin Z or cousin M.[37]
[32]AB 31-32.
[33]AB 32 line 4.
[34]AB 148 lines 40-44.
[35]AB 212 line 1.
[36]AB 212 lines 17-20.
[37]AB 213 lines 27-44.
Significantly, when cousin M gave evidence[38] she did not say that there was ever an occasion when she went with the complainant and the appellant to the GS’s house. Cousin Z was not called by either side to give evidence at the trial. The jury were therefore left in the position that if they accepted Mrs GPL’s evidence, there was an occasion when the appellant arrived at the GS’s house accompanied by the complainant and one of the female cousins, and that could not have been cousin M. The jury could therefore have reasoned that the other person was cousin Z, thus lending weight to the conclusion that the complainant was truthful in her account of this incident.
[38]Called as part of the defence case.
The significant features from that evidence are not just that it contradicted the appellant’s account, but that it told heavily against the proposition that the complainant was fabricating a story. The complainant had told the police that she and the appellant had driven to that house to pick something up from the appellant’s mate, and on that occasion cousin Z was taken as well.[39] In her cross-examination the complainant maintained that account[40] and she maintained that account even when it was put to her that the only time she had ever been to that house was on the occasion when all the children were there and playing.[41]
[39]AB 327.
[40]AB 30-31.
[41]AB 32.
Thus the jury had, in respect of count 10, independent evidence from Mrs GPL which confirmed that there was an occasion when the appellant brought the complainant to their house, in the company of cousin Z, and that it was connected with something to do with car parts and working on the car. In a case where the jury were being urged to find that the complainant was a liar rather than simply someone with a poor memory, that piece of corroboration was important. It was a basis for concluding that the complainant was telling the truth. It eloquently demonstrates, in my view, why rejection of the evidence on those counts where a not guilty verdict was returned, did not compel the wholesale rejection of the complainant’s evidence on other counts.
The complainant’s evidence in respect of the dirt trail incident (counts 7 and 8) should not be confused with that given in relation to count 10. Count 10 concerned an occasion when the appellant arrived at the GS’s house, with the complainant and cousin Z in the car. The complainant’s account in respect of counts 7 and 8 was that it was just herself and the appellant who were in the car. Thus, the complainant’s account in respect of counts 7 and 8 could not have been the occasion when Mrs GPL saw the appellant with the complainant and cousin Z in the car.[42]
[42]As explained elsewhere, even though Mrs GPL could not say whether it was cousin M or cousin Z in the car, cousin M did not suggest there was any such occasion in which she was involved in going to the GS’s house in company with her father and the complainant. Therefore, the jury were entitled to conclude that the true effect of Mrs GPL’s evidence was that she saw the complainant and cousin Z in the car.
In my view, no occasion arises to question how the jury might have used Mrs GPL’s evidence. No such point was raised on the appeal.
One must add the fact that, contrary to the defence case, there was evidence that the appellant was at times alone with the complainant in the car and present at the house when the complainant was as well. It is true to say that the appellant was absent for employment reasons and returned only periodically, but equally the evidence sustained the conclusion that there were opportunities where the appellant and the complainant were alone together.
The complainant made it plain in the police interview, and again in her oral evidence, that she could not put an accurate timeline or sequence on the events. However, the ones that she said she could remember with some detail all occurred when she was living with the appellant and his family. That was in 2013, and at no earlier time.
There is, in my respectful view, nothing that can usefully be drawn from the fact that the complainant went to live in the appellant’s house notwithstanding that she said he had assaulted her before.
That the complainant left her mother’s house to live with the appellant’s family was not contested. The evidence was that there was a discussion between the two sets of parents, and relevant children, before the arrangement was accepted. The complainant explained that the reason she moved out of her mother’s house, and in with the appellant’s family, was because of the unfair and physically hurtful treatment she received from her stepfather.[43] That conduct by the stepfather reached the point where the complainant’s school had people come over to speak to the family about it.[44] The appellant’s wife gave similar evidence, saying that she knew of “some of the things from what [the complainant’s brother] had told me a few things prior”.[45]
[43]AB 285 lines 10-12; AB 350 lines 43-44; AB 351 lines 1-6.
[44]AB 350 line 48 to AB 351 line 11.
[45]AB 170 line 41 to AB 171 line 10.
The complainant described the dilemma she felt because she did not want to remain in the appellant’s household when he moved back in from having worked away from home so often.[46] The dilemma was that she did not want to remain in the appellant’s household, but also did not want to say that she wanted to go back home, so as a result she started to misbehave to the point where the appellant’s wife threatened to send her home, and then finally did.[47]
[46]AB 285 lines 12-17.
[47]AB 352-353.
Whatever the reason, the complainant gave evidence that all of the offences with which the appellant was charged occurred after she commenced to live in their house. She received outwardly preferential treatment from the appellant in the sense that he would take her out to various places and got her an MP3 player.[48] However, that evidence was not advanced to explain why she moved into the appellant’s house in spite of the fact that she had been assaulted from a younger age. That evidence arose out of questions in cross-examination about whether she had spoken to anyone else about what had happened to her whilst living in the appellant’s house.[49] The context was that the complainant was talking to her brother about “my aunty and stuff”, and it was the brother who had suggested that the appellant “was always a lot nicer to me than he was to them”.[50] It was the brother’s suggestion that the appellant was extending privileges to the complainant because of what he was doing. It was in that context that she was asked what those privileges were, that the brother had referred to. The complainant’s response was to identify that the appellant would take her out to places and got her an MP3 player. She also referred to going camping at Rainbow Beach with them but that was when she was younger.[51]
[48]AB 36.
[49]AB 35.
[50]AB 35 lines 35-39.
[51]AB 36 lines 1-10.
Notwithstanding what the complainant’s brother had said about his perception of the appellant extending privileges to the complainant, the complainant consistently described feeling threatened and scared of the appellant.
Within the confines of the case before this Court, based upon what is said to follow from the inconsistent verdicts, I am not persuaded that the jury were compelled to entertain such a doubt about the complainant’s evidence on counts 3, 4-6 and 11, that that doubt either compelled the rejection of the complainant’s evidence, or created such a doubt that the jury could not find the appellant guilty on the remaining counts.
I would dismiss the appeal.
DAVIS J: On 12 June 2018 the appellant was convicted of two counts of indecent dealing with a child under the age of 16[52] and four counts of indecent dealing with a child under the age of 16 with a circumstance of aggravation, namely that the complainant was under his care.[53] He had previously been tried but the jury was discharged after being unable to reach verdicts.
[52]Criminal Code, s 210(1)(a).
[53]Criminal Code, s 210(1)(a)(iv).
At the time of his convictions he was acquitted of one count of indecently dealing with a child under the age of 16 years, two counts of indecently dealing with a child under 16 years with a circumstance of aggravation that she was under his care and two counts of rape.[54] There was only one complainant, common to all 11 counts.
[54]Criminal Code, s 349.
The appellant appeals against the convictions on two grounds:
1.The verdicts of guilty in respect of counts 1, 2, 7, 8, 9 and 10 are inconsistent with the verdicts of not guilty returned for counts 3, 4, 5, 6 and 11; and
2.The verdicts of guilty in respect of counts 1, 2, 7, 8, 9 and 10 are unreasonable or cannot be supported having regard to the evidence.
Section 668E of the Code provides four bases upon which this court may quash a conviction:
(a)The verdict is unreasonable.
(b)The verdict cannot be supported having regard to the evidence.
(c)There has been an error of law.
(d)There has otherwise been a miscarriage of justice.
Ground 1 relies upon the circumstance of there being different verdicts returned on different counts on the indictment. Where different verdicts are returned and there is no apparent explanation for the acquittals on some counts and the convictions on others, that fact may lead to a conclusion that the guilty verdicts are unreasonable on the basis that they are an affront to common sense.
Ground 2 alleges that the verdicts of guilty are “unreasonable” or “cannot be supported having regard to the evidence”. It was not seriously argued though that the verdicts could not be supported having regard to the evidence. The complainant’s evidence, if accepted, was capable of supporting each of the guilty verdicts.[55] The appellant’s real point on ground 2 was that having regard to all the evidence and the fact that the jury, by their acquittals, rejected at least part of the complainant’s evidence, it was unreasonable of the jury not to hold a reasonable doubt as to guilt on the counts on which they convicted.[56]
[55]Doney v The Queen (1990) 171 CLR 207 and R v R (1989) 18 NSWLR 74 at 77, point C.
[56]MacKenzie v The Queen (1996) 190 CLR 348 at 376, R v CX [2006] QCA 409 at [33], R v GAN [2012] QCA 50 at [37]-[40].
Both grounds of appeal against the guilty verdicts rely then upon the acquittals. As explained by Simpson J (as her Honour then was) in R v TK,[57] unreasonableness based solely on the circumstance of alleged inconsistent verdicts raises a different inquiry to unreasonableness of verdicts based on damage to a witness’s credibility or reliability evidenced by the acquittals.[58]
[57](2009) 74 NSWLR 299; and see also Norris v The Queen (2007) 176 A Crim R 42 at [45]-[53].
[58]At [123]-[138].
Both grounds of appeal are separate and different examples of reliance upon the one basis of appellate intervention (unreasonableness) even though both rely on the acquittals.
The charges and the course of the trial
The complainant was born on 24 January 2001. Her mother was a witness called by the Crown (the complainant’s mother). The complainant’s mother’s sister is married to the appellant. The complainant is therefore the niece of the appellant.[59]
[59]Appeal Record Book 1 (“ARB”), pages 91-92.
The complainant’s maternal grandfather is known to the complainant as “Poppy”. I shall, for convenience, refer to him as “Poppy”. Poppy is the father of both the complainant’s mother and the appellant’s wife.
The uncontested evidence was:
(a)The complainant lived with her mother and her step father.
(b)The appellant and his family lived in a house at Brassall (the first Brassall house).
(c)In the period up to 2010 the complainant would visit the appellant’s family at the first Brassall house.
(d)In 2010 the appellant’s family moved to another house in Brassall (the second Brassall house).
(e)The complainant would visit the appellant’s family at the second Brassall house.
(f)The complainant did not get along with her step father.
(g)The complainant’s mother married the complainant’s step father on 1 January 2013.
(h)From just before the wedding and into the new year the complainant and her sister stayed at the second Brassall house.
(i)On 14 January 2013 the appellant’s family went on a camping holiday to Rainbow Beach.
(j)The complainant and her sister accompanied the appellant’s family on the holiday to Rainbow Beach.
(k)At the end of the Rainbow Beach holiday, the complainant refused to go home. A compromise was reached where the complainant returned to her home but then commenced living with the appellant’s family at the second Brassall house from 28 January 2013.[60]
(l)The complainant lived with the appellant’s family until 2 September 2013.[61]
(m)The complainant was sent back to live with her mother and step father because she was involved in disagreements with the appellant’s wife and children.[62]
[60]ARB 2 page 173.
[61]ARB 2 page 173.
[62]ARB 2 pages 97 and 173.
On 19 February 2015, while in class at school, the complainant was asked by her teacher to prepare a timeline of her life. The activity was designed to have the students identify significant incidents and events in their lives.[63] In this timeline,[64] she wrote:
“2008 my uncle rapped[65] me.”
And also:
“2013 I moved in with my aunty and my uncle rapped me again so I moved back with my mum.”
[63]ARB 2 page 127.
[64]Exhibit 3.
[65]This was taken, correctly it seems, to mean “raped”. She did not use the term in its technical meaning (understandably). She meant that she was sexually assaulted; ARB 2 page 372, although count 11 did allegedly involve penile penetration of the complainant’s vagina.
The school did not report the matter to the police but reported it to the complainant’s mother. Sometime later, a complaint was made to police, the complainant was interviewed and the interviews were recorded. Both interviews were admissible on the appellant’s trial by force of s 93A of the Evidence Act 1977. The interviews occurred on 4 June 2015 (the first s 93A interview)[66] and on 11 June 2015 (the second s 93A interview).[67] The first s 93A interview contained the allegations which supported the 11 counts on the indictment. In the second s 93A interview, the complainant was asked to clarify some of the statements she made in the first s 93A interview.
[66]ARB 2 page 282 (transcript).
[67]ARB 2 page 357 (transcript).
As a result of the complainant’s allegations, the appellant was ultimately tried on an indictment containing 11 counts. Those counts, and the verdicts that were returned by the jury, are as follows:
Count
Charge
Verdict
Count 1
That on a date unknown between the twenty-third day of January 2009 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
Guilty
Count 2
That on a date unknown between the twenty-third day of January 2009 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
Guilty
Count 3
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And the offence is a domestic violence offence.
Not Guilty
Count 4
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Not Guilty
Count 5
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Not Guilty
Count 6
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at North Ipswich in the State of Queensland, [the appellant] raped [the complainant], a child under 16 years.
And the offence is a domestic violence offence.
Not Guilty
Count 7
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Guilty
Count 8
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Guilty
Count 9
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Guilty
Count 10
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Springfield or elsewhere in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the appellant] had [the complainant] under his care, for the time being.
And the offence is a domestic violence offence.
Guilty
Count 11
That on a date unknown between the thirty-first day of December 2012 and the first day of January 2014 at Brassall in the State of Queensland, [the appellant] raped [the complainant].
And the offence is a domestic violence offence.
Not Guilty
Although there were eleven counts on the indictment these were allegedly committed during seven separate incidents as particularised by the Crown.
Counts 1 and 2 stood together. The complainant told police that she was nine years old at the time of these events. The appellant took her from her bed to a couch in the lounge room and undressed her. He also undressed himself. Counts 1 and 2 were particularised by the Crown as follows:
“Count 1
[The appellant] touched [the complainant’s] genital area with his hand/s.
Count 2
While [the appellant] was undressed he touched/rubbed himself against [the complainant], who was also undressed.”
During the trial counts 1 and 2 were described as “the couch incident”. The appellant was convicted of both counts 1 and 2.
Count 3 was alleged to have occurred when the complainant was 12 years of age. She said that she had taken a shower and the appellant removed the towel which she had around her and sexually assaulted her. Count 3 was particularised as follows:
“Count 3
In a bedroom, [the appellant] touched [the complainant’s] breast/s with his hand/s.”
Count 3 was described during the trial as “the towel incident”. The appellant was acquitted of count 3.
Counts 4 to 6 also allegedly occurred when the complainant was about twelve years old. The complainant alleged that the appellant had taken her to her grandfather’s house while her grandfather was away. Counts 4 to 6 were particularised as follows:
“Count 4
In the kitchen, [the appellant] touched [the complainant’s] breast/s with his hand/s.
[The complainant] was under [the appellant’s] care.
Count 5
In the kitchen, [the appellant] touched [the complainant’s] buttock/s with his hand/s.
[The complainant] was under [the appellant’s] care.
Count 6
In the dining area, [the appellant] inserted his finger/s into [the complainant’s] vagina, without her consent.”
Counts 4 to 6 were called at the trial the “Poppy’s house incident”. The jury acquitted the appellant of each of counts 4, 5 and 6.
Counts 7 and 8 also allegedly occurred when the complainant was about twelve. The appellant took the complainant in his gold four-wheel-drive vehicle to run an errand to the house of Mr and Mrs GS. The complainant said that the appellant drove up a dirt trail and sexually assaulted her. The particulars of counts 7 and 8 are as follows:
“Count 7
[The appellant] removed [the complainant’s] pants and underpants and touched [the complainant’s] genital area with his hand(s).
[The complainant] was under [the appellant’s] care.
Count 8
[The appellant] removed his pants and rubbed his penis against [the complainant’s] genital area.
[The complainant] was under [the appellant’s] care.”
Counts 7 and 8 were described at the trial as the “dirt trail incident”. The jury convicted the appellant of each of counts 7 and 8.
Count 9 stood alone. Again this allegedly occurred when the complainant was about twelve. The appellant and the complainant travelled together to a McDonalds restaurant to buy ice-cream. Count 9 was particularised as follows:
“Count 9
While [the appellant] was driving to McDonalds he rubbed [the complainant’s] thigh. Immediately prior he said, ‘Only if you do something special for me’.
[The complainant] was under [the appellant’s] care.”
Count 9 was referred to at the trial as the “McDonalds incident”, sometimes also called the “Maccas incident”. The jury convicted the appellant of count 9.
Count 10 stood alone. Again, this was alleged to have occurred when the complainant was twelve years of age and is also alleged to have occurred in a car. On this occasion a cousin of the complainant was in the car but was asleep. Count 10 was particularised as follows:
“Count 10
While outside a house, [the appellant] touched [the complainant’s] breast/s with his hand/s.
[The complainant] was under [the appellant’s] care.”
Count 10 became known during the trial as the “MKE[68] sleep incident”. This also allegedly occurred when the appellant visited the house of Mr and Mrs GS. The jury convicted the appellant of count 10.
[68]Anonymised in these reasons.
Count 11 also stands alone and was said to have been committed just before the June/July school holidays in 2013, about four or five months after the complainant turned twelve. She was in a bedroom with the appellant with the door locked and he penetrated her vagina with his penis. A picture frame fell from a shelf and hit the complainant on the lip.
Count 11 was particularised in these terms:
“Count 11
In a bedroom, [the appellant] inserted his penis into [the complainant’s] vagina, without her consent. A picture frame fell down and struck [the complainant’s] lip.”
Count 11 became known during the trial as “the picture frame incident”. The jury acquitted the appellant of count 11.
On 8 July 2016 the complainant’s evidence was recorded (the pre-recorded evidence). That recording was admissible on the appellant’s trial pursuant to s 21AK of the Evidence Act.
At the trial the Crown tendered the two s 93A statements and the pre-recorded evidence of the complainant and called three other witnesses:
1. The complainant’s mother;
2. BQS who is the school teacher, who conducted the class where the timeline was produced, and
3. Mr SHN, the principal of the school.
Two groups of mutual admissions were made.[69] These were reduced to writing and tendered as exhibits.[70] They were as follows:
“1.[The complainant] was born on 24 January 2001.
2.[The complainant] turned 12 years old on 24 January 2013.
3.In 2013 the Queensland school holidays were as follows:
[69]Criminal Code, s 644; ARB 2 pages 136-137.
[70]Exhibits 31 and 32; ARB 2 pages 235-236.
Easter Holidays
June/July Holidays
September
Holidays
Christmas Holidays
29 March – 14 April 2013
22 June – 7 July 2013
21 September – 8 October 2013
14 December until 28 January 2014
4.On 3 May 2013, [the appellant’s] de facto partner, purchased a gold 2000 Nissan Pathfinder Wagon, registration [Redacted].
5.In February 2013, [the appellant] worked for [Redacted] at Childers as follows:
a.Tuesday, 5th – Thursday, 7th February;
b.Saturday, 9th – Sunday, 10th February; and
c.Monday, 11th – Friday, 15th February.
6.In 2013, [the appellant] worked for [Redacted] in Hervey Bay as follows:
a.Thursday, 21st March – Saturday, 23rd March;
b.Monday, 25th March – Thursday, 28th March;
c.Tuesday 3rd April [day after Easter Monday] – Friday, 5th April;
d.Monday, 8th April – Saturday, 13th April;
e.Monday, 15th April – Friday, 19th April;
f.Monday, 22nd April – Saturday, 27th April;
g.Monday, 29th April – Friday, 3rd May;
h.Monday, 6th May – Saturday, 11th May;
i.Monday, 13th May – Friday, 17th May; and
j.Monday, 20th May – Thursday, 23rd May [mid-morning] and Saturday, 25th May 2013 [last shift].
7.In May and June 2013, [the appellant] worked for [Redacted] which had a depot at Childers. [The appellant] worked as follows:
a.Thursday, 23rd May at Maryborough;
b.Monday and Tuesday, 27-28th May, training in Virginia; and
c.Thursday, 30th May – Saturday, 1 June.”
And further:
“1.In 2013, [the appellant] worked for [Redacted] as follows:
a.11 – 17 June 2013 at Yarraman;
b.18 – 20 June 2013 at Gayndah;
c.20 – 25 June 2013 at Eidsvold;
d.25 June – 1 July 2013 at Bunya Mountains; and
e.23 July – 1 August 2013 at Stanthorpe.
2.Payslips from [Redacted] indicate that [the appellant] did the following hours:
a.Week of 29 July 2013 to 4 August 2013 – 36 hours;
b.Week of 5 August 2013 to 11 August 2013 – 30 hours and 5 hours travel allowance;
c.Week 12 August 2013 to 18 August 2013 – 30.5 hours and 3 hours travel allowance;
d.Week of 19 August 2013 to 25 August 2013 – 32.25 hours and 2 hours travel allowance; and
e.Week of 25 August 2013 to 1 September 2013 – 14.5 hours.
3.On 3 September 2013, [the appellant] ceased employment with [Redacted].
4.On 6 September 2013 [the child] was enrolled in Year 7 at [Redacted] State School.”
The appellant gave evidence at the trial and he called six witnesses:
1.His wife;
2.Poppy;
3.The appellant’s niece, being his sister’s daughter;
4.The appellant’s daughter;
5.GMN; and
6.GPL.
It is necessary to identify the evidence which supports each of the counts.[71]
[71]I have included underlining for highlighting purposes.
The couch incident (counts 1 and 2)
In the first s 93A interview the complainant said:[72]
[72]The couch incident was not mentioned in the second s 93A interview.
“BLP: Um he took me into the lounge room, and he laid me on the couch, and he undressed me. And then he started touching me and like laying on top of me, and he would undress himself and do all those things.[73]
[73]ARB 2 page 289.
SCON WHEATLEY: When you’re saying, do all those things, what do you mean by that?
BLP: Um like touch me and everything.
SCON WHEATLEY: Touch you where?
BLP: Um in private parts.
SCON WHEATLEY: In which private parts?
BLP: All of them.
SCON WHEATLEY: BLP, I’m, you’re going to have to, when you’re ready, actually tell me which word, you know the other words for the private parts, and how he would touch them. Do you need some tissues darl? [INDISTINCT]. How old were you when this incident that you’re thinking about occurred?
BLP: Ah about um nine.[74]
[74]Therefore about 2010, at least two years before she moved in to live with the appellant’s family.
SCON WHEATLEY: About nine. I’m just gonna go out and grab some tissues darl. There you go darling. So you said you were about nine, what makes you th-, remember that it was around that age? What helps you make, remember?
BLP: Um I’m not sure, I just remember being around that age.
SCON WHEATLEY: Mmhmm.
BLP: I remember being fairly young.
SCON WHEATLEY: Okay. And the address you’re talking about in the, the lounge room, which, which address wo-, is that?
BLP: Um I’m not sure, I think that was the one that um one at number 17.[75]
[75]Which must be a reference to the second Brassall house.
SCON WHEATLEY: So the address that you said they lived at at the moment?
BLP: Um yeah.
SCON WHEATLEY: 17, Ipswich?
BLP: Yeah.
SCON WHEATLEY: Have you known, how many houses have you known MDH to live at? MDH[76] and MHY.[77]
[76]The appellant.
[77]The appellant’s wife.
BLP: Um I think it was about, um quite a few, like –
SCON WHEATLEY: Quite a few.
BLP: Yeah.
SCON WHEATLEY: And when you’re talking about these incidences that you’re talking about, how many different houses did they occur at?
BLP: Um I can’t remember exactly. I can’t remember like, I do [seem] to remember it being at their most recent house –
SCON WHEATLEY: Mmm.
BLP: The most.
SCON WHEATLEY: At the most. So the time, the, the one that you’re talking about now, um about when he took you to, into the lounge room, laid you on the couch and undressed you, and he started touching, which house was that?
BLP: Um the number 17.
SCON WHEATLEY: So the most recent?
BLP: Yeah.
SCON WHEATLEY: Their current one. Okay. So tell me everything about what the couch looked like.
BLP: It was like a, like, like, like a blue, bluey grey-ey colour, but like a dark bluey grey colour.
SCON WHEATLEY: Yeah.
BLP: But not like, not quite as dark as this –
SCON WHEATLEY: Okay, yeah.
BLP: But a bit lighter.
SCON WHEATLEY: Mmhmm.
BLP: And it was soft, and ah I think that’s like all I really remember [INDISTINCT].
SCON WHEATLEY: Alright. And what was the size of the couch?
BLP: Ah I think it was a three seater.
SCON WHEATLEY: Three seater.
BLP: Yeah.
SCON WHEATLEY: And what was the material that it was covered in?
BLP: Ah probably the same as this or-
SCON WHEATLEY: Mmm.
BLP: A bit different to this, like a.
SCON WHEATLEY: That sort of. Do you know what a word for this stuff would be?
BLP: Um it was like a, um, a soft material.
SCON WHEATLEY: Like a soft material.
BLP: Yeah.
SCON WHEATLEY: [INDISTINCT]. What were you wearing that day?
BLP: Ah I can’t remember what I was wearing.
SCON WHEATLEY: And what was um MDH wearing that day?
BLP: I can’t remember what he was wearing.
SCON WHEATLEY: What time of the day was it?
BLP: It was at night time.
SCON WHEATLEY: Night time.
BLP: Yeah.
SCON WHEATLEY: Was there anyone else in the house?
BLP: Um yeah I think there was.
SCON WHEATLEY: Who do you remember being in the house?
BLP: I think everyone was in the house.
SCON WHEATLEY: Everyone. And when you say, night time, sort of what part of the night time?
BLP: It was, I think everybody was sleeping?
SCON WHEATLEY: Everyone was sleeping?
BLP: Yeah. So it would’ve, like fairly early in the morning, or fairly late at night.
SCON WHEATLEY: Alright. You said that he took you into the lounge room. Where did he take you from?
BLP: He took me from my cousin’s bedroom.
SCON WHEATLEY: From your cousin’s bedroom.
BLP: Yeah.
SCON WHEATLEY: Which cousin?
BLP: MGN.
SCON WHEATLEY: Do you remember um what you were doing before he came and took you from your cousin’s bedroom?
BLP: I was sleeping.
SCON WHEATLEY: You were sleeping. Did he say anything to you?
BLP: No.
SCON WHEATLEY: And how did he take you?
BLP: He just like, he woke me up, well he did say, he said um-
SCON WHEATLEY: [INDISTINCT]
BLP: Well it wasn’t like, it was kinda, he woke me up, I don’t exactly remember but-
SCON WHEATLEY: Yeah.
BLP: He woke me up and like, and he told me to go into the lounge room. Like in like, like I was fairly threatened by him.
SCON WHEATLEY: Mmm.
BLP: So like he was really scary to me. So I did, I would just listen to what he said.
SCON WHEATLEY: And where was MGN?
BLP: Um MGN was also in the bedroom.
SCON WHEATLEY: Was she awake?
BLP: No, she was sleeping.
SCON WHEATLEY: Sleeping. And was there anyone else in the bedroom?
BLP: Um no.
SCON WHEATLEY: Alright. So he’s told you something like um, to go into the lounge room, and you just listened to him because you were threatened by him.
BLP: Yeah.
SCON WHEATLEY: And you went into the lounge room, and then what was the next bit that happened then?
BLP: He started to undress me and touch me.
SCON WHEATLEY: Alright. How, you said he laid you on the couch, how did he do that?
BLP: He like picked me up and laid me down on the couch.
SCON WHEATLEY: Mmhmm. And then he undressed you?
BLP: Yeah.
SCON WHEATLEY: Alright. And then you said he started touching. Which, which part of your body did he start touching first?
BLP: Um I think it was my stomach.
SCON WHEATLEY: Yeah. And then, and what was he touching you with?
BLP: His hands.
SCON WHEATLEY: And then what, what happened next? What was the very next bit?
BLP: Um he went down-
SCON WHEATLEY: He went—
BLP: [INDISTINCT]
SCON WHEATLEY: Down.
BLP: Onto my legs. And then he like would just rub up and down for a bit.
SCON WHEATLEY: Your le-, your legs?
BLP: Yeah.
SCON WHEATLEY: With what?
BLP: His hands.
SCON WHEATLEY: You said, then, sorry, what happened next? What was the next bit that happened?
BLP: And then he would start to touch me on my vagina, and on my bum.
SCON WHEATLEY: And which part of your bum?
BLP: Um like my bum cheeks.
SCON WHEATLEY: Your cheeks.
BLP: Yeah.
SCON WHEATLEY: Yeah. And when you say, touch your vagina, what exactly, which parts, and how did he touch them?[78]
[78]These are the particularised acts.
BLP: Um like the outside.
SCON WHEATLEY: The outside.
BLP: Yeah.
SCON WHEATLEY: And then what happened?
BLP: And then, um I just remember it like that, that’s.
SCON WHEATLEY: For that. You said when you first talked to me, you said something about, he was laying on top of you.
BLP: Yeah.
SCON WHEATLEY: Which, when did that but happen?
BLP: Like that was, like he was touching me and then he would, like after he touched my vagina he would lay, he like layed on top of me.
SCON WHEATLEY: Mmm.
BLP: And touched me while he was laying.
SCON WHEATLEY: So he’d be laying on top of you and touching you?
BLP: Yeah.
SCON WHEATLEY: Do you remember which hand he used?
BLP: He used both.
SCON WHEATLEY: Both hands. And you said something about him undressing himself. When did he do that bit?
BLP: Um he did that bit like before he layed on me.
SCON WHEATLEY: So before he layed on you.
BLP: Yeah.
SCON WHEATLEY: Before or after he started touching you?
BLP: Um after.
SCON WHEATLEY: After. [INDISTINCT]. And what did you notice about him when he layed, undressed himself?
BLP: Um.
SCON WHEATLEY: So tell me what his body looked like. Was there anything different about his body or, anything that you can remember?
BLP: Um he, he was like a bit fat.
SCON WHEATLEY: A bit fat.
BLP: Yeah.
SCON WHEATLEY: Yeah.
BLP: And I think that’s it really.
SCON WHEATLEY: [INDISTINCT]. And what part of his body touched what part of your body when he was laying on you?
BLP: Um his stomach touched my stomach.
SCON WHEATLEY: Yeah.
BLP: And his legs touched my legs.
SCON WHEATLEY: Yeah.
BLP: And his hands touched my stomach, and my legs.
SCON WHEATLEY: And when you say, he undressed himself, what pieces of clothing did he take off?
BLP: He took off his shirt, and his pants.
SCON WHEATLEY: Was he wearing any clothing after he undressed himself?
BLP: Um no.
SCON WHEATLEY: No. Do you remember whether or not he had underpants on?
BLP: Um he took them off.
SCON WHEATLEY: He took them off.
BLP: Yeah.
SCON WHEATLEY: Do you remember what they looked like?
BLP: No.
SCON WHEATLEY: So when his body was lying on your body, could you f-, you, you said his stomach was touching your stomach, your legs were touching his legs, his hands were touching your stomach and your legs, any other part of his body touching any other part of your body?
BLP: Um no.
SCON WHEATLEY: Okay. What about your um private parts? What could you, what could you feel that they were touching?
BLP: Um I thought they were touching his private parts.
SCON WHEATLEY: His private parts. What part of his private parts?
BLP: Um his penis.
SCON WHEATLEY: And what was his penis doing?
BLP: Um just like nothing really.
SCON WHEATLEY: Mmhmm. Do you know what I mean when I’m asking that question?
BLP: Yeah.
SCON WHEATLEY: Yeah. So what do you think I’m, I’m saying?
BLP: Ah like it, it wasn’t doing anything, it was, like he was just, it was more with his hands.
SCON WHEATLEY: It was more with his hands.
BLP: Yeah.
SCON WHEATLEY: Okay. So when, when we talk about a penis, I don’t mean to embarrass you I just need to make sure that you and I understand the same thing, [INDISTINCT] you’re trying to, what you’re telling I understand, um a-, what’s your understanding of what a function of a penis is? Not having had one, [INDISTINCT], you know, but just your understanding.
BLP: Um it’s like, I don’t understand like function, like.
SCON WHEATLEY: Okay. Does, does the penis always look the same, or can it change it’s appearance?
BLP: Um I know that it can change it’s appearance.
SCON WHEATLEY: Okay. And what’s your understanding of, do you know what that’s called, when it changes it’s appearance? Or what is it, like what’s, what does it look like when it changes?
BLP: It looks like it’s like hard and—
SCON WHEATLEY: Hard.
BLP: Long.
SCON WHEATLEY: Hard and long. Okay. So, I s’pose what I’m asking is, was there any change of appearance?
BLP: Um—
SCON WHEATLEY: When you said that h-, that you could feel his penis.
BLP: No, I think it was the same—
SCON WHEATLEY: Was the same?
BLP: The whole time, which was hard and long.
SCON WHEATLEY: Oh so it was hard and long—
BLP: Yeah.
SCON WHEATLEY: The whole time?
BLP: Yeah.
SCON WHEATLEY: Yeah. Alright. So he was laying on top of you. Tell me what he was saying when this was happening?
BLP: He wasn’t really saying anything.
SCON WHEATLEY: Was he making any sounds or anything?
BLP: Um I don’t remember. I think he was making like a few like, sort of like grunting noises, like not really grunting though, it’s like.
SCON WHEATLEY: [INDISTINCT]. So how long did this, did, did this sorta touching go for, or this incident go for?
BLP: Um I’m not sure how long it went for, um but I remember it went for a little while.
SCON WHEATLEY: Can you remember whether you were wearing summer or winter clothes, or whether it was like cold or hot, or anything like that, like temperature?
BLP: Um I think it was just normal.
SCON WHEATLEY: Mmm.
BLP: [INDISTINCT]
SCON WHEATLEY: If you don’t remember that’s okay, I don’t want you to make anything up, it’s just if—
BLP: Okay.
SCON WHEATLEY: If you can remember or not. So how did it, how did this incident sort of stop happening? This incident, how did it sort of end?
BLP: Um he just stopped and put his clothes back on.
SCON WHEATLEY: Did anything happen prior to him stopping and putting his clothes back on?
BLP: Well I think it was just that like I wouldn’t, like, I don’t know, like he just.
SCON WHEATLEY: He just stopped and put his clothes back on? What about you?
BLP: I would sit there and I’d, like I would lay there, and I just didn’t like it. [INDISTINCT]
SCON WHEATLEY: Did you say anything to him while he was doing this?
BLP: I would say like no, stop, and everything.
SCON WHEATLEY: Okay. And how was your voice? Sort of how loud was your voice?
BLP: Um I wasn’t very loud ‘cause I didn’t have a very loud voice. But I would say it quietly because like, but loud enough for him to hear.
SCON WHEATLEY: Mmm.
BLP: And he would tell me to be quiet.
SCON WHEATLEY: He’d tell you to be quiet.
BLP: Yeah.
SCON WHEATLEY: And did he tell you to be quiet?
BLP: He would just say like, shhhh, like—
SCON WHEATLEY: Shoosh?
BLP: Yeah.
SCON WHEATLEY: Okay. And did he do anything else to, to sort of suggest to you, be quiet, or tell you to be quiet?
BLP: [INDISTINCT]
SCON WHEATLEY: No. And um you said that his penis was hard the [INDISTINCT], whole t-, hard and long the whole time, did anything else happen to his penis?
BLP: No.
SCON WHEATLEY: No. [INDISTINCT]. And you said he just stopped and put his clothes back on. And then what happened then?
BLP: And then I put my clothes back on, and then I went back to bed.
SCON WHEATLEY: Did he tell you anything while you were putting your clothes on or?
BLP: Well he told me to go back to bed.
SCON WHEATLEY: He told you to go back to bed.
BLP: Yeah.
SCON WHEATLEY: Did he tell you about this incident at all, did he talk about this at all?
BLP: No.
SCON WHEATLEY: Did he tell you anything about this at all, when you were going back to bed?
BLP: No.
SCON WHEATLEY: [INDISTINCT]. And when you got back to bed, where was [Redacted], MGN?
BLP: She was, like they were [bunk] beds, so she was on the lower bunk.
SCON WHEATLEY: She was on the lower bed. And was she ah s-, awake or asleep?
BLP: Um actually I’m not sure if she was on the lower bunk or the—
SCON WHEATLEY: Okay. Can’t—
BLP: Higher bunk.
SCON WHEATLEY: Remember.
BLP: But she was asleep.
SCON WHEATLEY: Still asleep.
BLP: Yeah.
SCON WHEATLEY: Okay. Did um, did you need any help putting your pyjama, ah your clothes back on?
BLP: No.
SCON WHEATLEY: And was MDH there while you were putting your clothes back on?
BLP: Yeah.
SCON WHEATLEY: He was. And did he walk with you to the room?
BLP: Um he waited there until I started walking to the room.
SCON WHEATLEY: Mmm.
BLP: And then um I think he went into the kitchen.
SCON WHEATLEY: Mmhmm. And then what happened?
BLP: Um, and I’m not sure what happened after that.
SCON WHEATLEY: [INDISTINCT]. So you reckon it happened early morning, sort of everyone was asleep and it was dark, it was ni- , evening time.
BLP: Yeah.
SCON WHEATLEY: If we had to, have you told anyone about this particular incident before?
BLP: No.
SCON WHEATLEY: No, so I’m the first person that you’ve actually talked to about that incident?
BLP: Yeah.
SCON WHEATLEY: [INDISTINCT]. If we have to talk about this particular incident, what’s sort of s-, sort of something that we can call it that would prompt you that that’s the one that we’re talking about? You know like name it.
BLP: Um the couch one.
SCON WHEATLEY: The couch time. Couch one.
BLP: Yeah.
SCON WHEATLEY: Couch one, or couch time?
BLP: Couch one.
SCON WHEATLEY: Was there any other times on the couch?
BLP: Um.
SCON WHEATLEY: That you can recall.
BLP: I, I think so, but that’s the one that I, I don’t remember—
SCON WHEATLEY: Don’t remember the details of [those] other ones?
BLP: Yeah.
SCON WHEATLEY: But you think there might have been other times on the couch?
BLP: Yeah.
SCON WHEATLEY: You said that um he touched, he touched your vagina and on your bum with his hands, which part of his hands was he touching those parts of your body with?
BLP: Um his palm, and his fingers.
SCON WHEATLEY: His palm and his fingers? And what was his fingers doing?
BLP: Um like just, like just rubbing.
SCON WHEATLEY: Just rubbing.
BLP: Yeah.
SCON WHEATLEY: And you said it was on the outside of the vagina.
BLP: Yeah.
SCON WHEATLEY: And just on the bum s-, the cheek bums.
BLP: Yeah.
SCON WHEATLEY: Okay. Um and you said your sto-, your stomach he was touching, was there any o-, and your legs, any other part of your body?
BLP: Um I think it was just, no I think it was just my legs.
SCON WHEATLEY: Okay. And was he doing anything else—
BLP: [INDISTINCT]
SCON WHEATLEY: With any other part of his body other than his hands?
BLP: Um no, I don’t think so.
SCON WHEATLEY: [INDISTINCT]. No. Okay. Anything else about that incident that you can remember?
BLP: Um no.”[79]
[79]ARB 2 page 301.
The pre-recorded evidence (cross-examination) was as follows:
“Okay. I want you now to tell me about the first time that you say something that you can remember – and you told the police about – happened to you?---The first time that I remember that I told the police about[80]
[80]ARB 2 page 16.
Yes?---I believe – I don’t remember what the first thing I told them was, but there was a number of things that I told them.
Okay. Let me ask you - - -?---There was - - -
Sorry?---There was the time on the couch.
Well, just hold on a second. I just want to clarify something with you. When you spoke to the police about the things that you say happened to you, did you speak to them in the order in which they occurred or was it just random bits and pieces and you picked out and told them about?---It was just whatever I remembered. It wasn’t in any specific order.
Okay. Well, what I want to do with you today is to put it into a specific order, if we can. I want you to tell me about what was the first occasion in 2013 that you remember occurring to you?---I believe it was the couch incident.
Okay. And when you say the couch incident, describe to me what you mean by the couch incident, describe to me what time of day it happened – you’ve said it was the lounge incident – and I want you to tell me what happened?---It was at night time. He got me – he woke me up from the top bunk in my cousin’s room, then he took me out to the lounge in the – the couch in the lounge room. And he undressed me and undressed himself and then he was touching me and rubbing against me. And then after about 10, 20 minutes or so, he stopped and told me to go back to bed.
All right. Now – and this is the first incident you can recall in 2013?---Yes.
How long had you been living at the house when that first incident occurred?---Not very long. Probably – that was just after I moved in.
Okay. And so you believe you moved in in early January?---Yes.
And was it in January or was it after Rainbow Beach or – when was it?---I believe that was before Rainbow Beach in around January, February.
Now, it might seem like a strange question, but this was, according to you, something that had been going on for the previous five years, is that right?---Yes.
In 2008 when this first happened, did – you didn’t say anything to anyone?---No.
You didn’t stop going to the house?---No. Because I didn’t tell anyone, so nobody knew - - -
All right?--- - - - so they didn’t know not to take me to the house. And I felt threatened by him, which I why I didn’t tell anyone.
Okay. You never said to your mother or father or step-father, “I’d just rather not go over there”?---No. I enjoyed going over there to see my cousins. It’s – I just didn’t enjoy seeing him.
Okay. So that was the first in time, you say? What time of - - -?---Yes.
Can you give me some indication of what time of the day or night that was?---That was during the night when everybody was sleeping. So it would have been around early in the morning when it was still dark or late at night - - -
Okay. And you - - -?--- 5 - - - when everybody was asleep.
And at that – on that occasion, you would’ve just turned 12, is that right?--Yes.
Did you say anything to him when he was doing this to you?---I would tell him to stop and I would try and stop him from doing it. I would put my hands in the way and I would not let him do it, but he would always end up doing it anyway.
How did you get on with your aunty?---My aunty – I’m not sure. We got along a bit, but I didn’t really speak to her much because whenever we went over there, I would play with my cousins and everything and I wouldn’t talk to my aunty much. My mum would always talk to my aunty and we would – I would play with my cousins.
But, obviously, you felt that being at your aunty’s house, I’d suggest, was a safe place for you because you didn’t want to be at home because that was an unsafe place. Is that right?---Yes, because, at the time, my uncle was working away from home. He was – I’m not sure where he was working, but he wasn’t working at home so he wasn’t really at home very often.”[81]
And further:
“I want to suggest that, in relation to the couch incident that you have described, that did not happen?---That did happen.”[82]
Then in re-examination:
“If you think about that couch incident, how old were you at the time of that couch incident?---I believe I would have been 12. Just turned 12.
So that couch incident happened after you moved into that house, is that what you’re saying?---Yes.”[83]
[81]ARB 2 page 18.
[82]ARB 2 page 39.
[83]ARB 2 page 41.
In the first s 93A interview the complainant said that she had not made the complaint about the couch incident to anyone before her interview with police.
The appellant specifically denied committing the offences charged as counts 1 and 2.[84]
[84]ARB 2 page 155.
In the first s 93A interview, the complainant said that the couch incident occurred after she was about nine years old. That would date the event at about 2010. In the pre-recorded evidence, she said the event occurred in 2013, and it seems after she moved into the second Brassall house.
The appellant’s wife gave evidence relevant to the complainant’s first version of when the couch incident occurred which was some time before the complainant moved into the second Brassall house.[85] Her evidence was:
“All right. Were there times that BLP did, in fact, have a sleepover?---Only when my sister had left her there for some concert that she went to.
Do you remember when that was?---It was October 2009.
What was the concert?---I think it was Green Day.
And she stayed the night, that is?---It was a couple of nights for some reason.
All right?---I think it was the Friday and the Saturday night.
Okay. So it wasn’t a regular thing that she would stay over?---No.
It wasn’t as if she came over every fortnight or every month?---No.
And most of the times that she did come, she would be accompanied by her mother just for a visit, effectively?---Yep.”[86]
[85]The complainant originally said that she was nine years old when the couch incident (counts 1 and 2) occurred. That would be about 2010, at least two years before she lived with the appellant’s family.
[86]ARB 2 page 170.
The towel incident (count 3)
In the first s 93A interview the complainant said this:
“BLP: Um there was a time where I had, this was when I was living with my aunty. He was home and I’d just gotten outta the shower, and um we have to have like quick, a quick shower ‘cause there’s a lot of people, and we had a certain amount of hot water, so we had to have a really quick shower, so. And also like we all had a bed time, a certain bed time so what ah, what we would do would, was we would like just go and have a shower, then we’d wrap a towel around us and walk into our room and get dressed in there with the door shut. And one time I’d just gotten outta the shower, I had the towel wrapped around me, and I walk into my room, which was, I shared it with my cousin, MGN--[87]
[87]ARB 2 page 301.
SCON WHEATLEY: Yeah.
BLP: And he came in as I was getting my clothes outta my drawers, like I’m not sure where everybody else was, but he like I’m not sure if they realised that I was getting dressed or anything--
SCON WHEATLEY: Mmhmm.
BLP: But he came in and he started touching me, and I just said, no, go away. And, but he just, he said, no, and kept touching me. And then he, he um, I can’t remember exactly what happened, but I think he just eventually just stopped and walked out.
SCON WHEATLEY: So when you, you, you said you had a shower. So what time in the day would this have been roughly?
BLP: Oh this is around ah 6.00 o’clock at night.
SCON WHEATLEY: At night. Alright. And do you remember whether it was dark or it was still light at this time?
BLP: Ah I think it was still light.
SCON WHEATLEY: Still light.
BLP: Yeah.
SCON WHEATLEY: And you said you had a shower, and you’d wrapped yourself in towel and your normal sorta thing that you do is wrap yourself in a towel, and then go to your bedroom to get dressed. [INDISTINCT]
BLP: Yeah, [INDISTINCT].
SCON WHEATLEY: And when you when you went into the bedroom was there anyone in the room?
BLP: No.
SCON WHEATLEY: No. So what happened to the door?
BLP: Um I shut the door.
SCON WHEATLEY: So shut the door. And then what did you do next?
BLP: Um I had, my drawers were inside the cupboard.
SCON WHEATLEY: Yeah, drawers inside the cupboard.
BLP: And so I opened up the cupboard doors and they sort of, I left ‘em like that so that if somebody did walk in not realising that anybody was in there, I had the cupboard door so that they still wouldn’t see me and they’d realise that I was getting dressed because the cupboard door was open.
SCON WHEATLEY: Oh okay, yeah. So you had the cupboard door open and the drawers inside the cupboard.
BLP: Yeah.
SCON WHEATLEY: Did you still have the towel around you?
BLP: Yeah.
SCON WHEATLEY: Yeah. Do what was the next bit that happened?
BLP: Um he like tried to ta-, he came in, and—
SCON WHEATLEY: Mmhmm.
BLP: He tried to take the towel off of me.
SCON WHEATLEY: How did he do that? What did he d-, what was his actions?
BLP: Um he was like, he was fairly gentle about it.
SCON WHEATLEY: So what did he do?
BLP: He just like tried to like unwrap it from me.
SCON WHEATLEY: And what were you doing?
BLP: I was like not letting him.
SCON WHEATLEY: And what were you doing to, to stop him from doing this.
BLP: Um I would say, no, stop it. And no, go away. And I would like hold the towel on.
SCON WHEATLEY: And then what was the next bit that happened?
BLP: And then he got the towel off of me and he started touching me on my boobs, and on my bum. And then he did that for like two minutes, I think, maybe.
SCON WHEATLEY: Yeah.
BLP: And then I think, um I’m not sure, I think he just got a bit worried about somebody walking in or something—
SCON WHEATLEY: Mmhmm.
BLP: So he, like and I was like, I just kept saying, no, stop it. And no, stop it. And then, so I think he just kinda stopped and walked out.
SCON WHEATLEY: Alright. And how loud were you saying, no, stop it?
BLP: Um I said it about like, no, stop it. Like that loud.
SCON WHEATLEY: Okay. And where was everyone else in the house?
BLP: Um I think my aunty was, no my cousins were in the lounge room I think.
SCON WHEATLEY: Mmhmm.
BLP: And I think my aunty was in the kitchen, or in her bedroom.
SCON WHEATLEY: Could they have heard you from where they were?
BLP: Um I don’t, I’m not sure. I mean the kitchen was f-, fairly close to the—
SCON WHEATLEY: Mmm.
BLP: Bedroom, but the door was closed.
SCON WHEATLEY: Yeah. And when you say that, he started touching you on your boobs, what did he touch you with?
BLP: His hands.
SCON WHEATLEY: And how was he touching you on your boobs?
BLP: He would like squeeze.
SCON WHEATLEY: Squeeze.
BLP: Yeah.
SCON WHEATLEY: And how did that make you feel?
BLP: Um, um really like invaded.
SCON WHEATLEY: And then you said he was touching you on your bum. Which part of your bum?
BLP: Um my bum cheeks again.
SCON WHEATLEY: Bum cheeks. And you said that it last for about a m-, two minutes?
BLP: Yeah.
SCON WHEATLEY: And what was he saying when this was happening?
BLP: He didn’t really say anything.
SCON WHEATLEY: [INDISTINCT]. And describe the towel that you were wearing.
BLP: It was just a, just, I think, I can’t remember, it was either blue or purple.
SCON WHEATLEY: Blue or purple.
BLP: Yeah.
SCON WHEATLEY: Did you, when you were in the house, did you have your own towel that was yours, or you just had one that you had while it was dirty, and then you got a new one then or—
BLP: Yeah.
SCON WHEATLEY: Whatever? That was just how it is?
BLP: Yeah just have one.
SCON WHEATLEY: Yeah.
BLP: And then—
SCON WHEATLEY: Just—
BLP: [INDISTINCT]
SCON WHEATLEY: Just a random towel?
BLP: Yeah a random towel.
SCON WHEATLEY: Yeah. Okay. Alright, so he’s then walked out. When he walked out, what’s happened to the door?
BLP: Um he closed the door behind him.
SCON WHEATLEY: Closed the door. Did anyone else come in?
BLP: Um no.
SCON WHEATLEY: Did you t-, tell anyone else about this incident—
BLP: No.
SCON WHEATLEY: Ever? Am I the first person you’ve told?
BLP: Yeah.
SCON WHEATLEY: Okay. Why don’t you think you were able to, that you shouted, like shouted when you said, no, stop? Why do you think that was?
BLP: Because I was really scared of what he would do.
SCON WHEATLEY: What did you think he would do?
BLP: Um I’m not sure, I just, yeah I’m not sure, he just.
SCON WHEATLEY: Yeah. So you said this one happened when you were actually living with them. And what, oh how old were you when you were living with the family?
BLP: Um twelve.
SCON WHEATLEY: You were twelve years old.
BLP: Yeah.
SCON WHEATLEY: Okay. And which house did this happen at?
BLP: Ah the most recent one.
SCON WHEATLEY: Most recent one.
BLP: Yeah.
SCON WHEATLEY: The number 17 house?
BLP: Yeah.
SCON WHEATLEY: Okay. And do you remember whether or not you’d gone to school that day or anything like that?
BLP: Um—
SCON WHEATLEY: Is there anything else that you remember sort of outside [INDISTINCT]?
BLP: I can’t remember if it was a weekend, or if I went—
SCON WHEATLEY: Can’t remember.
BLP: To school.
SCON WHEATLEY: That’s okay. Yeah. So if you had to um put a word to this story, or this incident, what word would you use, or what, what could we call it that we’d know that we’re talking about?
BLP: Um—
SCON WHEATLEY: The towel incident, or, was there another similar to the towel incident?
BLP: Um no.
SCON WHEATLEY: No.
BLP: I’d just say, yeah the towel—
SCON WHEATLEY: Yeah the towel—
BLP: Incident.”[88]
[88]ARB 2 page 306.
In the complainant’s pre-recorded evidence (in cross-examination), this was said in relation to this count:
“Tell us about the other things that happened in that three or four weeks after he came back as best you can?---I don’t remember exactly, but I do believe the towel incident was after he came back from work.[89]
[89]ARB 2 page 21.
Okay. Tell us about the towel incident?---The towel incident was I had just gotten out of the shower and I wrapped a towel around myself and gone into the room to get dressed so that the next person could quickly have a shower. My aunty, I believe she was in the kitchen making dinner or in her room, and my cousins were in the lounge room watching TV. I’d gone into the room and closed the door so that people knew I was getting dressed. And then my drawers were inside the cupboard and the cupboard doors opened out, so I’d have those open while I was getting dressed so that if anybody did walk in they still wouldn’t see me when I was getting dressed. And then he walked in and he walked behind the door. He locked the door behind him and he tried to take my towel off and I wouldn’t let him. He kept trying and I kept saying no and I wouldn’t let him. And then he ended up walking back out of the room and closing the door behind him.
Okay. So he didn’t get the towel off you?---No.
Okay. And there would have been – the way you’ve just described it, there would have been a bit of a wrestling match going on, trying to get this towel off you?---No, it wasn’t really rough. He just tried to take it off, but he wasn’t rough about it.
Okay. But you would have been saying things to him and verbalising, wouldn’t you?---Yes. I kept saying no, I don’t want you to.
Now, that’s two occasions we’ve spoken about since he came back in some time around June to live with the family. What other occasions can you remember after he moved back into the house in June?---I believe there was, like, occasions happening every day after he moved in, but I don’t remember them.
Well, when you say there were occasions every day after he moved back in, why is it that you weren’t able to tell the police about each and every one of those occasions?---Because I don’t remember the details of them.
Okay. Well, tell me about the details of the ones that you do remember after he moved back in?---I believe that was all after he moved back in that I can remember the details of.
And those two that you’ve just described to us, about when he moved back in, the towel time and I think you said the photo frame time?---Yes.
Were they during the week, were they at the weekend? When were they?---I believe they were after school. The photo frame incident was on a weekend, but the towel incident, I believe that was on a school night, just after school.
Okay. Was it your usual practice, that you’d walk around the house with just a towel around you?---No, just from the bathroom to the bedroom, and we would get dressed in the bedroom with the door closed so that we could get the – because there was a lot of people living in the house so we’d get the showers done nice and quickly, and that was the quicker way of doing it.”
And further:
“I want to suggest to you that the towel time that you have described did not happen?---That did happen.” [90]
Then in re-examination:
[90]ARB 2 page 39.
“MR O’CONNOR: The towel incident, you were being asked about that. You know which one I’m referring to there?---Yes.[91]
All right. You were asked whether he got the towel off you and you said no. Do you remember that?---Yes.
Did you have any clothes on at all underneath that towel?---No.
Did he get any part of the towel away from your body at all?---Yes.
Right. And - - -?---But he didn’t get it off.
The whole towel didn’t come off?---Yeah.
[91]ARB 2 page 41.
Right?---But he did get a part of it off me. Like, the front part.
Right. So was any part of your body exposed when he pulled the towel off? That part of the towel off?---Yes. Yes.
Which part of your body was exposed when he pulled the part of the towel off?---My breast.
Right?---And my lower parts.
All right. So where, exactly, was the towel still covering you up?---It was still underneath my arms. Like, I still had it underneath my arms and around my back. He just pulled it off a bit and I put it back on.
All right. After that part of the towel came off and your breasts were exposed, can you – what happened then?---I put it back on. I wrapped it back up and around me.
All right. Did he do anything?---Like, I wrapped – yeah. He tried to touch me but I wouldn’t let him and I put the towel back around me.
All right. When you say he tried to touch you, can you say what he did?---He tried to grab my breast but I pushed him – I stopped him from doing it. Like, I put my hands in the way and I put the towel back around me and I told him no and I told him to go away.
So can you say precisely where his hands went?---On my breasts. Like, he tried to touch my breast, but he didn’t really get to.
Well, we’re trying to be specific here. So when you say it didn’t really touch my breasts or he tried to, was – did he - - -?---Like, his hands – his hands went towards my breasts, but I was putting the towel back around me as he went to. So he didn’t get to.”[92]
[92]ARB 2 page 42.
The appellant’s wife gave some general evidence about arrangements within the second Brassall house for the children to bath. She said:
“Okay. Now, just talking about the regime in the house. Obviously you’re there with the four children, five children?---Five.
One a baby. Your husband is working away. Was there a routine in the house? Did you establish a routine?---Very much so. The kids would get up in the mornings.
They would all get ready for school with me, you know, telling them what to do and whatnot. I’d drop them off at school, come home, do my usual housework. My son was a really good sleeper so I got a lot done while he slept. Also in between that I’d sometimes do my shopping or, you know, grocery shopping, run errands and stuff like that. And when school finished every day, if I didn’t pick them up at the school, which was only one kilometre walk away, they would walk home. And then it was basically do your homework, do your chores. Sometimes it was emptying the dishwasher or something like that. Get ready, you know, have dinner, have a bath, shower. Sometimes they had it earlier.
When you talk about having a bath or a shower, was it first in, best dressed as far as showers went or did you have - - -?---I’d just rattle off a name and say “you go and have a shower” because someone could have been doing their homework.
And was there a particular time for dinner at all?---It was usually by 6 o’clock because with a young baby who was starting solids, yes, we pretty much ate before 6 o’clock.”[93]
[93]ARB 2 page 177.
Another very unfortunate comment by the Crown prosecutor was:
“You might think, ladies and gentlemen, that the defendant and the defence witnesses seem to have an answer for everything. Poppy was away for Easter. MGN did [indistinct] rooms. MGN didn’t have picture frames. The defendant was never alone with BLP. That door didn’t have a key. You can hear things from MGN’s room. ‘It’s a tiny house and I can hear and see everything that goes on’. The defendant was always out whenever BLP slept over. BLP could’ve said the sky was blue, and the defence witness would have come and said it was pink.”
Much of the defence case was not contested, as I have already observed. Much of the defence case, as it concerned the appellant’s absence from the house over extended periods, was based on joint admissions in which the Crown prosecutor joined.
The fact that the complainant was not at the second Brassall house on most weekends was confirmed by the complainant’s mother, a witness the Crown called.[225]
[225]ARB 2 page 123.
The complainant did not in fact say that the sky was blue but she did give evidence of many things that were sensibly not challenged by the defence. The Crown prosecutor’s remark was unfair, inflammatory and inappropriate.
The clear import of the Crown prosecutor’s address to the jury was that the appellant’s wife was lying. The Crown prosecutor specifically suggested “[the appellant’s wife] said whatever she thought would help her husband”. That was never put to her.
The Crown prosecutor’s reference to the appellant and his wife measuring the appellant’s penis is a reference to her evidence:
“Okay. Now, it might be a personal question. Are you able to give us an estimation of the size of your husband’s penis?---We actually measured it once as a joke and it was between the five and six inch mark.
You had a tape measure?---Yeah.”[226]
[226]ARB 2 page 179.
The appellant’s wife’s evidence is hardly likely to be the product of some conspiracy with her husband to invent evidence to contradict the complainant’s allegation that the appellant had a large penis. The appellant could not recall at all the incident where his wife measured his penis.[227] The Crown prosecutor was prepared to scoff at the appellant’s wife’s evidence and clearly suggest that she was lying, even though he had not challenged her on that topic.
[227]ARB 2 page 155.
There were no questions asked of the appellant in cross-examination about the seven incidents, the subject of the counts. The closest the Crown prosecutor came to challenging the appellant’s denials, was:
“Okay. Now, Mr MDH, you’re well aware of the allegations against you? ---Yes, I am.
You understand all those allegations? --- Yes, I do.
Every one of those allegations happened, didn’t it?---No, it did not.
You indecently touched BLP on her breasts, her buttocks and her vaginal area? ---No, I did not.
You inserted your penis into her vagina? ---No, I did not.”[228]
[228]ARB 2 page 163.
It is the evidence concerning the picture frame incident where there are even deeper issues. As earlier observed, the jury were clearly correct to hold a reasonable doubt as to the complainant’s evidence on the picture frame incident. What was alleged was full penile penetration of the complainant. This allegedly occurred whilst she was sitting on the edge of a bed with her legs dangling over the bed and her shorts pulled down but not off. Therefore, her clothing would be restricting the extent to which the appellant could push her legs open. There was though, according to her only, “a bit of difficulty for him” in penetrating her vagina, the vagina of a 12 year old virgin.
In her first s 93A interview, she initially said “I’m not sure what my cousins were doing”. Then, she not only remembered that her cousins were in the lounge room watching a movie, but she could recall the name of the movie they were watching and she could recall that after the incident, she joined them to watch the movie.
The appellant’s rape of the complainant allegedly occurred in her bedroom which opens onto an open plan area which includes the lounge room where the complainant’s cousins were watching television.[229] Apart from the enormous risk taken by the appellant in raping the complainant in a home where other children were present, the complainant, after losing her virginity, simply joins her cousins showing no outward sign of the trauma she had just endured. Then of course, there is the fact that she gave a detailed and elaborate story about the picture frame falling on her, and that evidence is directly contradicted by evidence which was not challenged by the Crown.
[229]ARB 2 page 270.
The complainant said that the picture frame incident was the first time her vagina had been penetrated by the appellant’s penis. When asked whether that was the only time she was initially somewhat equivocal. She said “Um I don’t think so”. It was only after a leading question by the police officer that she settled on the version that was the only occasion.[230]
[230]ARB 2 page 344.
The issue is not whether the complainant was being deliberately untruthful. As unusual as they may seem, the events may have occurred.
However, on the entirety of the evidence, the jury were right to have a reasonable doubt about the picture frame incident.
The same can be said in relation to the Poppy’s house incident. The complainant’s account of how she obtained the key, and obtained entry through the back sliding door, is an integral part of her account. That part of her account is not and cannot be accurate, given the unchallenged evidence that was led.
The complainant’s evidence about drinking Coca-Cola after being molested in Poppy’s house is also not accurate given the unchallenged evidence of Poppy that Coca-Cola was not kept in his refrigerator.
The jury, faced with unchallenged evidence contradicting the complainant on material aspects of her account of the Poppy’s house incident and the picture frame incident, could only reasonably have a reasonable doubt as to the reliability of the complainant’s evidence on those counts. It was not then reasonably open to the jury to reject the appellant’s sworn and effectively unchallenged denials of the counts of which he was convicted.
Further, the complainant, in the first s 93A interview, gave a very detailed account of how the appellant removed the towel she was wearing and then sexually assaulted her. She then, under cross-examination, gave a completely different version of what occurred including that the towel was not removed and she was not touched. There was no suggestion that there was more than one towel incident. In fact, she told police that there was only one occasion involving a towel.
The jury sought a redirection in relation to the towel incident in these terms:
“Does the mere attempt to remove the towel count as indecent?”
At least one of the jury must therefore have been contemplating convicting the appellant on count 1 based on the account given in the s 21AK evidence, even though the evidence completely contradicted what was said in the s 93A interview.
It is difficult to see how the jury could not reasonably reject her evidence on both, completely contradictory versions of the towel incident.
There were therefore solid bases justifying the jury’s verdicts of not guilty on counts 3 (the towel incident), 4, 5 and 6 (the Poppy’s house incident) and 11 (the picture frame incident). It must be that the jury have rejected her reliability on these counts.
The second question is whether, having rejected the complainant’s evidence on these counts and having regard to all the evidence, is it unreasonable to convict the appellant of the other counts.
There is no corroboration of any aspect of the complainant’s version. She managed to give a detailed description of the couch, but of course that just proves she remembers what couch was in the lounge room. The dangers of relying on peripheral details which can be objectively confirmed is demonstrated by R vCAH.[231]
[231](2008) 186 A Crim R 288.
While the complainant said that sexual assaults had occurred since she was about seven (therefore 2008),[232] she could not recall any incident until the couch incident. That occurred at a home occupied by the appellant’s family between June 2010 and October 2013.[233] There was no event or circumstances the complainant could point to in order to narrow the date. However, under cross-examination in the s 21AK evidence, she said that it probably occurred before the family went on holiday to Rainbow Beach. That occurred from 14 to 18 January 2013.
[232]ARB 2 page 287.
[233]Appellant’s wife’s evidence; ARB 2 page 169.
In that respect, this uncontested evidence was given by the appellant’s wife:
“Now, at the end of 2012 your sister got married?---It was the 1st of January 2013.
Okay. Did BLP stay with you then?---Yes, she did.
How long did she stay with you for?---They were there from – her and her sister were there from a couple of days before New Year’s until a couple of days after New Year’s.
So when you say her and her sister?---Her little sister, MVY.
So it was BLP and MVY came to stay with you while PLI and PNE got married?---Yes.
And that was for a few days?---Yep.
Did BLP then go back home or did she stay with you? You went on a camping trip to Rainbow Beach?---She was supposed to go home but she didn’t want to. I think she just wanted to stay for a bit longer and she just started – she knew the day her mum was coming home and started panicking and started telling us about things that were happening at home and that she didn’t feel safe and whatnot. And it got a bit heated and I’m like, ‘Is it definitely happening?’ And she goes, ‘Yeah, yeah, yeah’. And I knew some of the things from what MHA had told me a few things prior.
All right. So there was some disruption or some – she wasn’t feeling particularly happy at home?---She didn’t feel happy or safe.
Okay. And did you allow her to stay on?---We said she could stay for a little bit longer while her mum went home - - -
Did you have a discussion with her mum about that?---Yeah. When her mum - - -
Don’t tell us what was said but did you have a discussion?---Yeah. We had a good discussion with her mum.
Okay. And some time in January you went to Rainbow Beach?---Yes.
Tell us about that?---I know the date we went because it was my late grandmother’s birthday. We left on the 14th of January. We went up to Rainbow Beach.
When you say ‘we’, who’s we?---Myself, MDH, MGN, MDN, MKE, BLP and MUH.”
And later:
“Okay. Came back from the camping trip. What happened then?---Well, we had two - - -
Did BLP go home?---Well, we had two cars. MDH had his four-wheel drive which was a two-seater. He took MDN with him. And I took MGN, BLP, MKE and MUH and I had to go to Gin Gin to meet my mum because we had spent Christmas with my mum and I left my dog at her house because she’s a breeder and has kennels.
Okay?---So she had accommodation, so yeah.
So when you came back, did BLP remain at your house when you came back from the camping trip?---Yep. That was the Friday night on the 18th because it was actually MDH’s birthday and her mum picked her up the next day.
Okay. Was there then some discussion entered into with PLI about BLP coming to live with you?---She’d actually text me while we were on the camping trip saying she was going to allow BLP to move in with us after the discussion we had a couple of weeks earlier.
Okay?---But I hadn’t told BLP that. My sister said to BLP, “Go and pack your stuff”. And she’s like, ‘No, I’m not coming home’. And she goes, ‘Do as you’re told’. And she goes, ‘No, I don’t want to go home’. She started crying.
All right. But she did go home?---She did go home and I said, ‘Your mum has decided you’re allowed to stay but you’ve got to go home to spend some time with your family’.
Did she seem pleased with that?---It was going to be her birthday. I think she was happy about that.
Okay. So was she at your house for her birthday?---No, she wasn’t.
Okay. So she went home for her birthday and then came back to your place?---Yep.
And when was that?---She came back on the 28th of January which was a public holiday because Australia Day was on a Saturday. So she came back on Monday the 28th and school started the next day.”
The Crown was faced with a substantial difficulty. On the complainant’s version, she had been assaulted regularly since she was about seven. Then, at the age of 12, she insisted on moving into the house occupied by her abuser. That evidence was sought to be countered by evidence from the complainant that she was receiving preferential treatment in the appellant’s household. That evidence was contradicted by the appellant[234] and the appellant’s wife.[235] That evidence was not challenged in any way. Obvious lines of cross-examination were simply not followed. This was consistent with the Crown prosecutor’s approach. He basically ignored the defence case, did not come to grips with any of the problems that the defence case caused to the complainant’s evidence and then simply told the jury to believe the complainant. The difficulty with such an approach is that it left large parts of the defence case unchallenged.
[234]ARB 2 page 145.
[235]ARB 2 page 172.
Therefore, the sworn denials of the appellant were largely unchallenged. The jury have convicted where the complainant has not been substantially contradicted by evidence beyond that of the appellant. There is danger then, as in R v D,[236] that the jury have approached their task impermissibly. Instead of assessing whether the complainant’s evidence should be accepted beyond reasonable doubt, they have been prepared to convict unless she is significantly contradicted.
[236][2000] QCA 417.
A high point of the Crown case was Mrs GPL’s evidence. She contradicted the appellant’s evidence that he did not go to the GS’s house with the complainant on any occasion other than the family barbecue. That may have given the complainant some support. There are problems caused for the Crown even with that evidence. The complainant, if she was accurate must have travelled with the appellant to the GS’s house on at least three occasions; the barbecue, the dirt trail incident and the MKE sleep incident. However, the complainant thought that she may only have been to the GS’s house twice.[237]
[237]ARB 2 page 31.
The appellant was specifically asked in cross-examination in chief whether he had gone to the GS’s house with the complainant and MKE. He said that he had not. He did give general evidence that he had only been to the GS’s house with the complainant on the occasion of the family barbecue. However, he was never asked whether he had been to the GS’s house with the complainant and any child other than MKE. There was no attempt in cross-examination to suggest the possibility of any occasion other than that specifically particularised.
After Mrs GPL gave evidence, the Crown case then presumably proceeded on the basis that the offending could have occurred when it was not MKE but some other child with the complainant in the car and on the basis that it was not the occasion spoken of by the complainant when the offending occurred, but rather on some other occasion when the appellant and the complainant were at the GS’s house for only a short time.
I am also concerned as to how the jury may have used Mrs GPL’s evidence. As already observed, the Crown prosecutor put it to the jury that the appellant and his wife were lying about the movements of the appellant and his contact with the complainant. No lies direction was given.[238]
[238]Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234.
I have taken into account the position of the jury in the trial process and that the jury enjoys an advantage in having seen and heard all the evidence. Further, the jury quite properly may have made allowance for the difficulties encountered by children in giving evidence about sexual misconduct suffered by them at the hands of persons who are often family members. However, when all the evidence is considered, the evidence which the complainant gave in support of counts 3, 4, 5, 6 and 11 was unreliable. There were large problems with her evidence on those counts and the jury was not prepared to accept her evidence as reliable. It was not open to then accept her as reliable on the counts on which the jury convicted.[239]
[239]A similar position to that facing the New South Wales Court of Criminal Appeal in Norris v The Queen (2007) 176 A Crim R 42.
The fact is that much of the defence case was strong and unanswerable. That led the Crown prosecutor, it seems, to the extraordinary decision to simply ignore it.
In addition to the issues caused by the rejection of the complainant’s credibility on the counts on which the appellant was acquitted, there are other problems with the Crown case on those counts where convictions were returned.
In relation to the couch incident (counts 1 and 2):
(a)The complainant is completely uncorroborated.
(b)She originally had the incident occurring when she was nine years old and living at home, but later had it occurring when she was 12 after moving into the second Brassall house.
(c)The likeliness of the version can be doubted. The appellant allegedly entered a bedroom where not only the complainant, but another girl is sleeping (his daughter), removed the complainant and took her into a completely open area of the house where he sexually assaulted her over an extended period.
(d)The complainant, despite this serious sexual assault, then takes steps to persuade her mother, the appellant’s wife, and the appellant to allow her to move into, or stay in the household.
In relation to the dirt trail incident (counts 7 and 8):
(a)The complainant is totally uncorroborated. While her evidence might find some support in Mrs GPL’s evidence that the complainant was at the GS’s house with the appellant, that evidence is undermined by her evidence that she may only have been to the GS’s house twice. On her version, she must have gone to the GS’s house at least three times.
(b)The account is unlikely. The complainant’s version is that the appellant stopped the car, directed her to leave the car, undressed her, pulled his own pants down, achieved an erection, and in that state was molesting the complainant while another child was in the car, albeit asleep.
In relation to the Macca’s incident (count 9):
(a)The complainant is completely uncorroborated.
(b)The incident was said to occur “around Easter” 2013. The unchallenged evidence was that the complainant was with her mother at Easter and the appellant was away from the second Brassall house.
In relation to the MKE sleep incident (count 10):
(a)The complainant is completely uncorroborated. The problems caused to the Crown case by Mrs GPL’s evidence apply equally here.
(b)The incident is unlikely to have occurred. The car was, it seems, parked outside the GS’s house. There is full view onto this area from inside the property.
The jury’s verdicts of guilty were unreasonable and the convictions ought to be set aside.
I would order:
1. The appeal be allowed.
2. The convictions be set aside.
3. Verdicts of acquittal be entered on counts 1, 2, 7, 8, 9 and 10.
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