R v MEA

[2024] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v MEA [2024] QCA 160

PARTIES:

R
v
MEA
(appellant)

FILE NO/S:

CA No 42 of 2023
DC No 2151 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 February 2023 (Sheridan DCJ)

DELIVERED ON:

3 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2024

JUDGES:

Mullins P, Dalton JA and Cooper J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child, indecent treatment of a child under 16, under 12, under care, attempt to commit rape, two counts of indecent treatment of a child, under 16, under care and two counts of rape – where the offending was committed against the appellant’s partner’s daughter – where the complainant brought a notebook to her s 93A interview to which she referred on a few occasions in answering questions – where the notes were not tendered at trial – where the complainant gave evidence that the notes contained a list of things she wanted to talk to the police about and the addresses of the houses and the years the family had lived in the houses – where the complainant disclosed that her mother helped her with the dates at which they lived at the houses – where the complainant could not remember what she did with the notes and had been unable to find them – where the interviewing police officer gave evidence but was not asked about whether the notes were copied and, if so, what became of them – where the complainant’s mother’s evidence was that she did not assist the complainant in compiling notes – where the jury asked the judge whether they should draw an inference from the fact that the notes were not tendered – where the trial judge with the concurrence of the prosecutor and defence counsel gave a redirection that the jury were not to speculate about what the notes might contain and could not draw any inference from the fact that the notes were not in evidence – where the appellant submitted that there was a forensic disadvantage as the appellant was unable to analyse the notes or cross-examine the complainant on any discrepancies – whether the redirection by the trial judge was adequate to deal with the jury’s query about the missing notes

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child, indecent treatment of a child under 16, under 12, under care, attempt to commit rape, two counts of indecent treatment of a child, under 16, under care and two counts of rape – where the offending was committed against the appellant’s partner’s daughter – where the complainant responded to many questions that she did not remember or she could not recall specific details – where the complainant confirmed that she had been diagnosed by a psychologist as suffering from depersonalisation disorder and was frank in the disclosure of her mental health issues and problems with her memory – where the trial judge gave a direction that the jury must approach the complainant’s evidence with special care – whether the direction was adequate in the context of the evidence adduced at the trial

COUNSEL:

D M Caruana for the appellant
N W Crane for the respondent

SOLICITORS:

Gilshenan and Luton Legal Practice for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  The appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child (count 1), indecent treatment of a child under 16, under 12, under care (count 2), attempt to commit rape (count 3), two counts of indecent treatment of a child, under 16, under care (counts 4 and 7) and two counts of rape (counts 5 and 6).  Each of counts 2 to 7 was relied on by the prosecution as particulars of count 1 in addition to other uncharged acts set out in the particulars for count 1.  Except for count 2, the offences were domestic violence offences.

2. The prosecution case at trial depended on the jury’s acceptance of the complainant as a credible and reliable witness.  The appellant’s case at trial was that none of the acts occurred and the complainant’s evidence was not sufficiently convincing to enable the jury to be satisfied of the appellant’s guilt of each of the offences beyond reasonable doubt.  The appellant’s trial counsel emphasised to the jury that the complainant was only able to provide details of five or six allegations and had “severe memory problems” and problems with her mental health.  The appellant neither gave nor called evidence.

3. The appellant appeals against his conviction on two grounds:

   1.A miscarriage of justice was occasioned by the learned trial judge’s failure to direct the jury as to the forensic disadvantage the appellant suffered by virtue of the notes the complainant took with her to the s 93A interview being lost.

   2.A miscarriage of justice was occasioned by the trial judge’s failure to explain to the jury the reasons why they needed to scrutinise the complainant’s evidence with great care.

   Background

4. The appellant began a relationship with the complainant’s mother in around 2011 and they lived together between August 2011 and January 2017 together with the complainant who was seven years old at the commencement of the relationship, her brother B who was two years younger than the complainant and (from April 2014) the child C of the relationship between the appellant and the complainant’s mother.  They lived in one suburb (the first suburb) until they moved to another suburb in August 2013 (the second suburb).

5. The relationship between the appellant and the complainant’s mother ended in October 2016 but he did not move from the family home immediately.  There were admissions at the trial that the appellant moved to an apartment in January 2017 (the first apartment) and lived there until February 2018, when he moved to a second apartment.

6. Count 1 was particularised as being committed between 31 August 2011 and 1 January 2019.

7. It was not until May 2020 that the complainant commenced making some generalised complaints to friends of sexual abuse of her by the appellant.  She made disclosures to her mother in November 2020 and her mother immediately took her to the police to make a complaint.

   Summary of the evidence of the offences

8. The complainant’s s 93A interview was recorded on 11 December 2020.

9. The complainant described the appellant’s conduct in that interview as follows.

10. The first incident (count 2) occurred in 2012 at the house in the first suburb when the complainant was seven or eight years old and her mother was out.  The complainant was sitting on the couch with the appellant and B was on the other couch.  The appellant whispered to the complainant, asking whether she wanted to stay up later that night and the complainant responded in the affirmative.  After B went to bed, the appellant took the complainant into the bedroom shared by the complainant’s mother and the appellant and told her to get the whipped cream out of the refrigerator which she did.  He put some on his penis and told the complainant to lick it off.  The complainant refused to do so and he then put some whipped cream on his upper left thigh and forced her to lick it off.  The complainant could not “really remember” any other incidents from the house in the first suburb.

11. The complainant remembered the appellant sneaking into her room in the house in the second suburb a couple of times at night “to do stuff” which he called “secret stuff”.  The appellant gave her code words of “platypus and echidna”.  He would go up to the complainant and ask “platypus or echidna”, but the complainant did not remember which one was “no” but she would always say the one that was “no” or that she did not want to do anything.  Both before and after C was born, the appellant would make the complainant sit on top of him when he was seated on the couch, so that the complainant’s legs were facing him and she remembered him lifting her up and down.  On other occasions, when the appellant was lying down in the bedroom, he would get the complainant on top of him and pull her up and down, so she was rubbing him.  Sometimes she was clothed and sometimes she was not.

12. The attempted rape (count 3) was committed when the complainant was 10 or 11 years old and was lying unclothed on the bed in her mother’s bedroom in the house in the second suburb and the appellant was standing at the edge of the bed and tried unsuccessfully to insert his penis into the complainant’s vagina.  The complainant tried to push him away as he was hurting her.  That was the first time the appellant tried to penetrate her.  There were another one or two times at the house in the second suburb when the appellant tried to penetrate the complainant’s vagina but the complainant did not remember them as clearly as the first time.

13. In 2015, the appellant drove the complainant to the Gold Coast.  The complainant was sitting in the front seat when the appellant grabbed her hand and put it on his penis and made her rub his penis over his clothes (count 4).  The appellant pushed his pants down, exposed his penis and made the complainant put her mouth on his penis (count 5).

14. The complainant was under the house in the second suburb with the appellant, when he made the complainant put her mouth over his penis and he ejaculated into the complainant’s mouth (count 6).  There were three or four other times under the house of the second suburb when the appellant made the complainant put her mouth over his penis and he ejaculated into the drain.  This type of conduct also happened a lot more at the appellant’s apartments.

15. On one occasion when the complainant visited the appellant at the first apartment, the complainant was sitting on the couch, when the appellant removed her clothes and took a photo of her vagina (count 7).  He commented to her “that’s how easy it is for people to take photos of you”.  The complainant said that the appellant told her he would delete the photo, she saw him delete it once, but she was not sure whether it remained deleted.

16. The complainant said that, when the appellant was living in the apartments, he used his fingers a couple of times to penetrate her vagina.

17. Counts 2-7 were particulars of count 1.  In addition, the prosecution relied on other occasions of sexual offending for which the complainant was unable to provide specific details but referred in general terms to sexual acts committed against her by the appellant.

18. Towards the end of the s 93A interview, the complainant explained to whom she had made disclosures about the appellant’s sexually abusing her before she went to the police.  She also disclosed that she had an eating disorder and had started to self-harm and had an appointment to see a physiologist in January 2021.

19. During the first s 21AK pre-recording of the complainant’s evidence on 29 March 2022, the complainant agreed that she had disclosed to the police five or six specific incidents that she could remember.  She denied the suggestion that those five or six things that she had described to the police did not actually happen.  She also denied the proposition that the appellant did not sexually abuse her at all, stating that those five or six incidents did happen and that the appellant did sexually abuse her.  It was also put to her that the appellant never did any of the acts that were particularised for count 1 and, in each case, the complainant asserted that he did do the relevant act.

20. It was during the first s 21AK pre-recording that the complainant was cross-examined on the difficulties in her relationship with her mother, including an incident where the complainant held a knife to her chest and threatened to hurt herself.  She was also cross-examined on her physical and mental health.  Her evidence included that she was diagnosed with chronic fatigue in 2018.  She had also presented at hospitals and to doctors since 2016 with chronic pain, particularly in her lower back and the left side of her abdomen.  A diagnosis of anxiety and depression was made in January 2021.  She had been self-harming and had appointments with her psychologist every two weeks.  On more than one occasion she had taken an overdose of her antidepressant medication.

    Ground 1 – the loss of the complainant’s notes

21. It was apparent from the video of the complainant’s s 93A interview that she had brought with her to the interview a book containing notes to which she referred on a few occasions in answering questions.  For most of the interview the book was on the lounge next to where the complainant was seated, so that it was apparent when she picked up the book and referred to it.  The complainant stated in the interview that she had written down in the book (the addresses of) the houses and the years the family had lived in those houses.  Officer Voysey who was one of the interviewing police officers did say to the complainant that she could look at her notes, if she needed to, and that he would take a copy of them when they were finished.  Towards the end of the interview Officer Voysey repeated that he might take a copy of the notes and “probably” would get the complainant to sign them before she went.  There is no express mention in the interview that a copy was, in fact, taken.

22. It can be inferred that the appellant’s legal representatives sought those notes from the prosecution, as it was a topic that was canvassed in the first s 21AK pre-recording of the complainant’s evidence.  In evidence in chief, the complainant was referred to the notes that she had during the s 93A interview and asked what was written on those notes.  She responded:

    “The houses we were living at, and what times and what years we were living at them, and a list of things that I wanted to talk about in the interview.”

23. The complainant stated that she wrote those notes and that her mother helped her with the dates of the houses but everything else was done by her which was the list of things she wanted to talk to the police about.  The complainant did not remember what she did with the notes.  She did say that the police took a copy of them.  The complainant said she took the notes home with her but had been unable to find them.

24. In cross-examination during the first s 21AK pre-recording, the complainant stated that she only looked at the notes a couple of times to check the dates of the houses and only looked at the list of incidences that she wanted to talk about on one occasion.  The complainant agreed that she could not remember how often or how much she relied on those notes to say what she said to the police other than she “wasn’t using them heaps”.  She confirmed that she wrote the list of things on her own she wanted to talk about.  She refuted the suggestion that it was her mother who told her the things about what her mother thought that the appellant had done to the complainant.

25. The complainant’s mother’s evidence was to the effect that she did not tell the complainant what to tell the police and she did not assist the complainant in compiling notes.

26. Officer Voysey gave evidence at the trial.  He was not cross-examined at all about whether he had copied the complainant’s notes that she had brought to the s 93A interview and, if so, what happened to them.  Relevant to count 7, he confirmed that he had never found a photograph of the complainant in an indecent position.

27. In his address to the jury, the prosecutor urged the jury to consider how many times the complainant looked, in fact, at the notes which he suggested was two or three times and that they were down by her side when she was giving the details of specific events.

28. The appellant’s trial counsel in his address to the jury relied on the loss of the notes as another piece of evidence that was missing that deprived the jury of external evidence to confirm the complainant’s allegations.  The other pieces of evidence that were described as missing included the photograph that was the subject of count 7 and the texts that the complainant said she typed (and showed) to her friends to disclose the abuse.

29. The trial judge in the summing up reminded the jury of the appellant’s trial counsel’s argument that the complainant’s account was unsupported by evidence external to her, including that there was no evidence before the jury of the notes that the complainant took to the s 93A interview.

30. After the jury commenced their deliberations, the jury sent a note requesting the replay of the complainant’s s 93A interview and also enquiring whether the jury was entitled to draw any inferences from the fact that the notes made by the complainant that could be seen in the interview were not tendered.  In the debate which ensued between counsel and the trial judge as to what direction was required to answer that question, the appellant’s trial counsel acknowledged that, from his understanding about the notes, it would be an unfair inference to the prosecution if the jury were entitled to infer that tendering the notes would not have assisted the prosecution case.  The transcript of the trial does not otherwise reveal any detail about the “understanding about the notes”.  The appellant’s trial counsel agreed with the prosecutor that, as the jury did not have the notes before them, they were not entitled to speculate what was or was not in them.  The trial judge’s direction to the jury in respect of the question about the notes was:

    “In terms of the second question – that is, you having noted that a copy of notes were – was made at the time of that police record of interview and whether you can draw any inferences – those notes are not in evidence and you should not speculate as to anything about those notes. They are not part of the evidence that is before you in this trial.”

31. There was no request by the appellant’s trial counsel for any further redirection in respect of the lost notes.

32. The appellant does not dispute the appropriateness of the direction given by the trial judge that the jury were not to speculate about what the notes might contain and could not draw any inference from the fact that the notes were not in evidence.  The essence of ground 1 is that there should have been an additional direction about the forensic disadvantage for the appellant by virtue of not having a copy of the notes that the complainant took with her to the s 93A interview.  The forensic disadvantage was expressed in terms the applicant was unable to analyse the notes and check whether they were written by the complainant or by somebody else or cross-examine the complainant on any discrepancies between the content of the notes and the evidence otherwise given by the complainant.

33. The appellant does not seek to invoke s 132BA of the Evidence Act 1977 (Qld) but relies on a trial judge’s general responsibility to give an appropriate caution or warning “in circumstances where there are potential dangers in acting upon particular evidence which may not, without such caution or warning, be appreciated by the jury”: see Longman v The Queen (1989) 168 CLR 79 at 95-96 per Deane J.

34. To the extent that the notes dealt with the timing of the commencement of the relationship between the complainant’s mother and the appellant, the complainant disclosed in the s 93A interview that her mother had told her that she and the appellant “started darting in 2011” and that her mother had also told her the dates when they lived in the houses in the first and second suburbs and the date on which the appellant moved out of the house in the second suburb were not an issue at the trial.

1. The issues of the state of the complainant’s memory and the possible interference by her mother in the making of the complaint by the complainant against the appellant were explored at some length in the cross-examination of the complainant.  The complainant conceded that she had memory problems.

2. It does not follow from the jury’s question about whether they could draw any inferences from the fact that the notes the complainant had with her in the interview were not tendered that the loss of the notes assumed a greater significance in the trial than they otherwise had.  The jurors were no doubt curious about the fact that the notes were not tendered.  They were cautious in seeking guidance from the trial judge in considering the argument addressed to them by the appellant’s trial counsel that used the “missing” notes in conjunction with other “missing” evidence to point out there was a lack of external evidence against which to evaluate the complainant’s evidence.

3. The further direction that the appellant now submits should have been given is sought in respect of evidence that was not available at the trial.  The redirection given by the trial judge was adequate to deal with the jury’s query about the “missing” notes in the context of the conduct of the trial.

   Ground 2 – Robinson direction

4. The complainant responded to many questions in the s 93A interview and her first s 21AK cross-examination in terms that she did not remember or she could not recall specific details.

5. A second s 21AK cross-examination of the complainant took place on 10 February 2023 after the complainant had provided a document to the Director of Public Prosecutions in August 2022 which mentioned that she suffered from depersonalisation disorder.  The complainant confirmed that she had been diagnosed by a psychologist as suffering from depersonalisation disorder and she had been informed that the symptoms of that disorder included trouble telling the difference between dreams and reality, difficulty in recognising her own reflection in the mirror, out of body experiences and hallucinations and/or delusions.  The complainant said that she suffered from hallucinations but neither delusions nor out of body experiences.  She had problems partly with her memory.  She had been unable to recognise her own reflection at times.  She denied having trouble telling the difference between dreams and reality.  In re-examination, the complainant stated that the hallucinations started in January 2022 which was after she had first spoken to the police.

6. The trial judge gave the following direction to the jury:

   “Now, finally, in terms of your consideration of [the complainant’s] evidence. As you have heard as I have discussed the elements of the offences with you, [the complainant] is the critical witness in this case. You will need to scrutinise her evidence with great care before you could arrive at a conclusion of guilt.

   That is not to say that you cannot act on her evidence. But you may only do so if you are convinced of its truthfulness and accuracy bearing in mind the following matters which may have some effect upon her reliability.

   Firstly, you have the admissions by [the complainant] that she has problems with her memory; and, secondly, you have the evidence that [the complainant] suffered from mental health issues both during the period of the alleged offending and in the period subsequent including her diagnosis of depersonalisation disorder.

   The existence of those issues means that you must approach her evidence with special care.”

7. There was no request at the trial for any redirection.  The appellant now submits that this direction was inadequate, as the trial judge failed to direct the jury as to the specific circumstances arising from the evidence which may have been impacted in the jury’s assessment of the complainant’s reliability.  In particular, the appellant submits that the trial judge should have highlighted to the jury the evidence regarding the complainant suffering from hallucinations and explained the reasons why this gave rise to a risk of which they needed to be aware regarding the complainant’s reliability.  It is further submitted that the jury should have been told to be cautious of the risk that the complainant could have been drawing on hallucinations, rather than real events, when giving evidence as to the subject offending.

8. This ground of appeal must be dealt with on the basis of the evidence adduced at the trial and not the basis of different ways that the topic of the depersonalisation disorder could have been addressed with the witnesses at the trial.  There was no expert evidence given at the trial in respect of the nature of depersonalisation disorder.  The ambit of the evidence arose from the complainant’s concurrence in cross-examination as to the symptoms of depersonalisation disorder of which the complainant had been informed and her evidence as to which symptoms from which she said she suffered and from when she started suffering them.

9. The jury did not need any further direction about the complainant’s admitted problems with her memory, as that was apparent from her many responses to questions that she did not remember or did not recall the matter about which she was being asked.  The reliability of a witness’ evidence where the witness had admitted memory problems was a matter within a jury’s common experience.  The complainant was frank in the disclosure in her evidence of her mental health issues.  There was no evidence that the complainant was suffering from hallucinations during the period of the offending conduct by the appellant or when she did the s 93A interview.  There was no suggestion otherwise arising from the evidence of the complainant given in cross-examination that she was hallucinating about the incidents involving the appellant.  The direction given by the trial judge in relation to the complainant’s problems with her memory and the evidence that she suffered from mental health issues and her diagnosis of depersonalisation disorder was adequate in the context of the evidence adduced at the trial.

   Order

10. The appellant has failed to establish either ground of appeal.  It follows that the order which should be made is: Appeal dismissed.

11. DALTON JA:  I agree with the order proposed by Mullins P and with her reasons.

12. COOPER J:  I agree with Mullins P.