R v P
[2001] QCA 102
•20 March 2001
SUPREME COURT OF QUEENSLAND
CITATION: R v P [2001] QCA 102 PARTIES: R
v
P
(appellant)FILE NO/S: CA No 169 of 2000
DC No 352 of 2000DIVISION: Court of Appeal PROCEEDING: Appeal against conviction ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 20 March 2001 DELIVERED AT: Brisbane HEARING DATE: 23 February 2001 JUDGES: McMurdo P, Davies JA and Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER: Appeal against conviction dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – whether evidence of complainant so confused and inconsistent as to be duplicative and make conviction unsafe
Evidence Act 1977 (Qld), s 93A
COUNSEL: J R Hunter for the appellant
N V Weston for the respondentSOLICITORS: Goodfellow & Scott for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: The appellant was charged with one count of maintaining an unlawful relationship of a sexual nature with a child under 12 who was under his care for the time being (count 1), two counts of rape (counts 2 and 3) and two counts of indecent treatment of a child under 12 who was under his care (counts 4 and 5). He was acquitted of one count of rape (count 2) but was convicted of the alternative offence of indecent dealing which was open on that count. He was also convicted on all remaining counts. The appellant submits the conviction is unsafe and unsatisfactory, firstly because counts 2 and 5 are duplicative; if that is established, then, he submits, the learned primary judge's directions to the jury on count 1 were flawed and, if both those matters are established, then the complainant's evidence as to counts 3 and 4 was also tainted and unsafe.
Count 2 was an allegation of rape between 1 July 1997 and 1 April 1998 at the house of the complainant's grandmother; count 3 was an allegation of rape between 1 July 1997 and 1 April 1998 at the appellant's unit; count 4 was an allegation that the appellant licked the complainant's vagina at her grandmother's house between 1 July 1997 and 1 January 1999 and count 5 was an allegation that the appellant touched the complainant's vagina with his finger between 1 July 1997 and 1 June 1999. Count 1 alleged the maintenance of a sexual relationship between 1 July 1997 and 1 June 1999.
The complainant child was born on 12 December 1988. The appellant was the de facto partner of the complainant's grandmother. The offences occurred when the complainant was 9 and 10 years old. The evidence turned largely on the complainant's tape recorded interviews with a police officer on 6 June 1999 when the complainant was 10 years old, tendered under s 93A Evidence Act 1977 (Qld). She was eleven and a half at the time of trial.
The complainant's interview with police on 6 June 1999 was lengthy: from 9.22am to 12.08pm. It is not a good example of how such interviews should be conducted, for reasons which will become apparent. She was further interviewed on 8 June 1999 from 12.32pm to 1.15pm.
The appellant emphasises the complainant's confusion as to which act of rape occurred first and her lack of detail as to counts 2 and 5. As to count 3, she told police:
"… it first started when he was moving into my nan's house … and I went with [the appellant] … we got out of the car and we unlocked the door and we ran into [the appellant's] unit and he threw me on the bed and took off my overalls … and he took off my togs …
Well, he was on top of me and he put his rude part into me and he said if I tell anyone that I'd best look out. He goes – and he said, 'Don't tell no-one. …
I also tried to push him off but I couldn't and I moved my head and – because he was kissing me and that and I tried to push him off and I couldn't because he's too heavy for me. …
Well, he was on top of me and that and he stayed on there for a long time and then he got off and he pulled up his pants and that. I tried to push him off but I couldn't and then I put my togs and my overalls what he took off and I said to [the appellant] I said, 'I'm going home.' "
Later she described his rude part as "his dick" and said that he put it into her vagina:
"Well, he took my clothes off and he took his pants off and his rude part was hanging out and then he put it into me. When he was watching what he was doing. …
Yeah. I was trying to push him off when he was trying to do that and he had his hands on the bed like that and he just too strong …
… he was going up and down and he said – and I said, '…, just get off me, get off me, get off me.' and he said, 'shush up, shush up.' …
… when he said, 'shut up' I could smell his breath and it stank like beer."
She said it also happened at her grandmother's house:
"… a couple of times but he hasn't been on top of me for quite a while but he still gets his hands and feels my boobs."
The police interview appears to have been very taxing on this 10 year old child and after a time she said she did not want to talk about it any more, 'cos it gets real scary'. The police officer ignored her request and continued the interview. At this point, the complainant became confused as to the order of the offences, which occurred, in some instances almost two years before.
She said:
"It happened at his house and my nan's and he done it to me at nan's once – no, sorry, at his house once and at my nan's he done it a couple of times.
Yeah. But was the first time at his house, was that the first time? – Mmm. No. He first done it at my nan's house and then he done it at his house and I don't like it. …
… well, my mum went down to my brother … and my nan was out somewhere, I don't know where she was at, and I was left at home by myself with [the appellant] and I told [the appellant] that I was going to have a lie down 'cause I was tired and he followed me into the room and I told him to go away and he didn't.
… The very first one happened at my nan's house and then he took me to – well, the day he – he said that I could help him pack and that was the second time.
… And the first time I pushed [the appellant] off and he said, 'don't tell no-one,' and I tried – well I did try to push him off and I couldn't because I wasn't strong enough and then at [the appellant's] house he said, 'if you tell anyone you better look out,' and so I haven't – I didn't tell no-one because everyone – I thought everyone would go really – like they'd go really mad."
At this point in the interview, the complainant child became very distressed and, as is common in such situations, wrongly considered that the offending behaviour was her fault. She again said she did not want to talk about it. The interview was interrupted for 15 minutes before resuming at 10.50am. The complainant was asked about what happened at nan's. She replied:
"Well, [the appellant's] licked me down below.
Yeah? – And he's put his fingers up there and I tried to push his hand out but I couldn't …
When mum and nan were out I went to have a lie down because I was tired and that and [the appellant] followed me up to the room and I told [the appellant] to get out and he didn't get out and so I just ignored him and lied down and he turned me around and – 'cause I had a dress on and I – I can't remember what kind it was and [the appellant] lifted that up and he then – there were two things down below.
And he also kissed me and that and I didn't like it and then [the appellant] still when nan's not looking he feels my boob – he feels my boobs and that and he also said that I have big boobs and all that.
… and then when I – I was watching telly in the lounge room and I got – I prefer to sleep on the lounge when I got really tired, so I woke back up and – I woked up and I went into mum's bedroom to have a lie down and [the appellant] followed me up the hallway and I just told him to get out and he – he ignored me.
and I … I lied on my side and he turned around and lift up my dress. …
… the first one was at nan's and that were – the ones that happened at nan's he – that's when he followed up the hallway and that and the other ones when mum went out somewhere because I couldn't find -mum must have went out somewhere because I couldn't find her and then I didn't worry about it and went into the bedroom and [the appellant] just followed me.
mum went out somewhere, I don't know where, and I was tired and – sorry, I walked up - walked through the hallway and I got into mum's bedroom and [the appellant] was following me and I hopped on the bed and I lie on my side and [the appellant] switched me around on my back. …
… he grabbed my arm …"
When asked what he did she spelt out the letters "S-E-X" but again became distressed and said she hated talking about it.
She was then asked what happened when the appellant licked her. She was plainly unhappy in continuing the interview and on a number of occasions said she had told all she could remember. Later she said that when she was living at nan's the appellant followed her to the room and pushed her down on the bed. She was wearing a short skirt, knickers and a t-shirt. The appellant lifted up her skirt, took her knickers off and licked her and was being rude but couldn't remember what else he had done.
She was asked how many things she could remember the appellant doing to her and answered:
"About four. … At nan's, at mum's, nan's, one at [the appellant's] and then one at nan's."
She was asked about the other incident at her grandmother's which happened on a separate day and replied:
"Well, I was in the lounge room watching TV and [the appellant] came out and I got off the chair and I walked away and I went into the toilet and I got out of the toilet, I went in my bedroom and [the appellant] went into mum's bedroom and I went to see what [the appellant] was doing and I sat on the bed and [the appellant] was … looking around, I don't know what for, and then I sat on the bed and [the appellant] came over and he pushed me, he pushed me so I was lying down and he started kissing me and that. …
… on my cheeks and my lips …"
She said that was all that happened and there were no other incidents at nan's.
She was asked:
"Do you remember before you said to me that one time at nan's that [the appellant] did the same thing to you that he did at his unit that time? – Mmm.
Well, which occasion was that? – That occasion was on the weekend and he – mum was somewhere, I don't – I don't know whereabouts she was, she was somewhere, I don't know where, and [the appellant] followed me up to the bedroom and he done the same thing that he – he pulled up my skirt and took my undies off and that."
The police interviewer explained his confusion and asked the complainant to briefly tell how many things happened at nan's. She replied: "There was about two. Two or more, I can't remember." She agreed one incident involved licking and another was in the bedroom when the appellant put her onto her back and felt her boobs under her dress. She then agreed there was a third incident where he put his rude thing in her at nan's. The complainant was crying, upset and embarrassed during this portion of the interview.
She agreed the first incident was at the appellant's unit and the second was at nan's; during the second incident the appellant was feeling her boobs and vagina.
Another time the appellant put his rude part in her and was going up and down; she told him to stop but he kept on. This occurred in her mum's room on the bed.
During a series of leading questions to which no objection was taken at trial, the complainant agreed that there had been an incident at the appellant's home where he put his rude part in her at about the time he was shifting into nan's about two years earlier (count 2). At another time, the appellant licked her on the vagina at her nan's house (count 4). At another time, the appellant came into the bedroom, pulled her onto her back and felt her boobs under her dress and her vagina (count 5). On another occasion at her nan's in her mum's room the appellant put his rude part in her and did the same thing as he did at his unit (count 2). She agreed there were four different occasions; one at the appellant's and three at her nan's.
The complainant was interviewed again on 8 June 1999. She told police the incidents at her nan's happened after the incident at the appellant's unit. She again expressed her reluctance to talk about the matter and said she was nervous and scared; despite the reassurances from the police she felt that she was in trouble.
The complainant gave evidence at trial. During cross-examination any confusion was clarified. The complainant said the first incident occurred at the appellant's unit sometime after Christmas; the other three incidents occurred at her nan's house; the touching incident occurred first; the licking incident second and finally the incident involving the appellant placing his rude part in hers. The appellant also touched her breasts on many occasions until she moved out of her grandmother's house. It was not suggested that there were only two incidents at her grandmother's or that counts 2 and 5 were the same incident.
She made a complaint to her brother and then to her nan. She told her nan before the appellant had moved in that the appellant was being rude and touching her breasts with her nan. Shortly afterwards she also complained to her brother and her mother.
The complainant's mother gave evidence that she, her son and the complainant lived with her mother, the complainant's grandmother, at Redcliffe from around September 1997 until 31 May 1999. The appellant also resided there at that time and gradually moved his belongings into the house. One Sunday in about October 1997, she left the complainant with her mother and the appellant whilst she went out. When she returned her mother was out and the appellant was standing with his arm around the complainant; her mother's bed was messy and she asked them why. The appellant did not answer, but the complainant hesitantly said that the appellant had been tickling her.
A few weeks before she and her younger children moved out of the grandmother's house in May 1999, the complainant told her that the appellant had not been tickling her that day; he had been touching and licking her private parts. On 6 June 1999, her elder daughter took the complainant to the police.
Dr Mego, the Acting Director of Paediatrics at the Redcliffe Hospital, examined the complainant on 8 June 1999. He is a medical representative for the Suspected Child Abuse and Neglect Unit in the Redcliffe area. The complainant's genitalia were normal and there was no evidence of hymenal tears or scars. Dr Mego said:
"It is well recognised now that the majority of children who are victims of child sexual abuse have normal findings on genital examination. … The majority of children who have experienced penetration do not have normal findings, but a significant proportion of them do. …
There are a number of reasons. Firstly, the hymen is quite an elastic tissue, more so pubertal girls, but certainly as well as in pre-pubertal girls. Secondly, it depends on the time interval between the alleged assault and when the child's examined. It is known that the hymenal tears can heal very rapidly, within weeks.
Right. If the allegations at the latest were that this took place in early 1998 and you examined the girl in June 1999 is, say, a period of about 18 months …….? --- Mmm.
… would that be a significant time gap? – Yes.
Enough to effect those sort of findings? – Yes.Alright. Now, the second question I have is in relation to how can you experts positively say that's the case, that there are instances where there has been penetration and yet no hymenal tearing or scar? – Yes. That evidence is based on some papers specifically from the United States where the perpetrator has actually confessed to penetration and those girls have been examined by experts in the field, expert gynaecologists and they have had normal findings."
Later in his evidence, he said that between 20-40 per cent of sexual abuse cases involving penetration can exhibit completely normal findings on genital examination.
The appellant told police he hadn't lived in the Clontarf area for 4-5 years. Contradictory evidence was called to establish that he rented and resided at a unit in Clontarf from 13 November 1997 to 9 January 1998.
The appellant gave evidence that he lived at a Clontarf caravan park from 13 November 1997. He formed a relationship with the complainant's grandmother in November 1997 and met the complainant, her brother and her mother in about mid-December 1997. He moved in progressively to the grandmother's house from November to December 1997.
On one occasion, the complainant was alone with him at his unit at the caravan park at Clontarf and he denied ever saying the contrary. A video tape of portion of his interview with police was played in which he told police that the complainant had never been alone in the unit with him. He said he did not deliberately lie to police but he had consumed a lot of alcohol prior to the police interview. The appellant denied any improper conduct with the complainant.
The appellant's de facto wife and the grandmother of the complainant gave evidence for the appellant. She said that at about Christmas 1997 the complainant told her that the appellant was touching her and when asked what she meant, the complainant said: "When I sit on his lap he puts his arms around me." She said, "Well, …, that's just because he's – you know you keep slipping off his lap." When she heard the further allegations in June 1999, she and the appellant visited the complainant's mother who said, "Don't take any notice of it. They're just trying to get their own back on you, … just forget about it, you know, because we don't think anything's happened like this."
During cross-examination she said the complainant and the appellant were never alone together but later conceded that on one occasion that complainant had gone with the appellant to his unit.
She was present when the appellant was interviewed by police; on that occasion he had had a few beers but was not rolling drunk; she was concerned that he was being interviewed by police after drinking alcohol.
Although the complainant's evidence in her interview with the police was confusing, when it is looked at as a whole it is capable of establishing four distinct incidents, three of which occurred at her grandmother's house: the rape at the appellant's unit (count 3) and the touching incident (count 5); the licking incident (count 4) and the incident involving the appellant placing his rude part on hers (count 2). The complainant's evidence as to count 3, the first of the incidents described in her interview with police, was particularly convincing and compelling in its detail and description. The various inconsistencies were canvassed at the trial. The jury was entitled to treat the complainant's confusion and inconsistencies as being caused by her youthfulness and obvious distress. Her credibility was supported by the complaint made to her mother. Whilst Dr Mego's medical examination did not assist the complainant's case, nor was it inconsistent with it.
The appellant's credibility was marred by his prior inconsistent statements and the jury were entitled to reject the evidence of the complainant's grandmother which was inconsistent with the evidence of the complainant's mother.
The jury's acquittal of rape on count 2 was consistent with them being satisfied beyond reasonable doubt only of indecent behaviour on the part of the appellant which did not go so far as penetration.
It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant on both counts 2 and 5; they are not duplicative.
The appellant's remaining arguments flounder on the rejection of the first submission and it is unnecessary to consider them further.
I would refuse the appeal against conviction.
DAVIES JA: I have had the advantage of reading the reasons for judgment of the President. I agree with her that this appeal must be dismissed. In view of her Honour's detailed statement of the relevant facts and argument, I shall not repeat them here.
The appellant's strongest ground of appeal related to counts 2 and 5. It was submitted that the evidence of the complainant on those counts was so confusing that it was not possible to say whether she was speaking about the same occasion or two separate occasions. If that were so, it was submitted, it would make the convictions on counts 2 and 5 unsafe and consequently require the conviction on count 1 to be set aside. It was added that the acquittal of rape on count 2 was the result of the confusion in these accounts given by the complainant.
The appellant submitted that because of the complainant's inconsistencies on count 2 the convictions on counts 3 and 4 were also tainted and were consequently unsafe. To this, the appellant added, there were some inconsistencies in the complainant's evidence on these counts.
If the first of these submissions fails, in my opinion, the others must also. Apart from the risk of confusion in respect of counts 2 and 5 there is, in my opinion no substance in the other submissions made with respect to counts 3 and 4.
In my opinion it was open to the jury, on the whole of the evidence, to conclude that there were indeed four separate incidents described by the complainant comprising counts 2, 3, 4 and 5. It is true that the nature and length of the police interview with the complainant resulted in some confusion after the complainant had expressed her unwillingness to continue with it. But in her first description of the incidents and in the summary of it at the end of the interview there was, the jury was entitled to accept, no confusion. Indeed her cross-examination appears to assume that the effect of her evidence was that there were four separate incidents which she was describing.
The acquittal of rape on count 2 was, in my opinion, reasonably explicable on the basis that the jury gave the appellant the benefit of considerable doubt as to whether, on that occasion, penetration actually occurred. It was not consistent only with confusion as to the effect of the complainant's evidence. For those reasons the grounds of appeal against conviction on counts 2 and 5 fail and consequently the appeal must also fail.
AMBROSE J: I agree.
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