R v PBK
[2022] QCA 250
•9 December 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v PBK [2022] QCA 250
PARTIES:
R
v
PBK
(appellant)FILE NO/S:
CA No 43 of 2021
DC No 211 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Beenleigh – Date of Conviction: 25 February 2021 (Moynihan KC DCJ)
DELIVERED ON:
9 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
20 September 2022
JUDGES:
Dalton JA and Jackson and Crow JJ
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury of four counts of indecent treatment of a child under 16 – where the appellant and the complainant were cousins – where the Crown relied upon an uncharged incident to illustrate the appellant’s sexual interest in the complainant – where the complainant gave evidence that a television show was playing during the uncharged incident – where the television show did not exist at the time of the uncharged incident – where the complainant gave contradictory and inconsistent accounts of the acts comprising the offending – where the complainant’s evidence was inconsistent as to the sequence of events relating to the offending – where the complainant’s age at the time of the events, and at the time she was asked to recall them, may have affected aspects of her evidence including her estimates of time and descriptions of the offending – where there were inconsistencies between the preliminary complaint evidence and the complainant’s evidence – where it was a matter for the jury to assess whether the preliminary complaints corroborated the complainant’s evidence – where the complainant’s evidence was affected by her embarrassment or shame about the offending – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt having regard to all the evidence
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, citedCOUNSEL:
J P Benjamin for the appellant
P J McCarthy KC for the respondentSOLICITORS:
Bell Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
DALTON JA: This is an appeal against conviction based upon s 668E(1) of the Criminal Code (Qld). That is, that according to the well-known principles in M v The Queen,[1] Pell v The Queen[2] and Dansie v The Queen,[3] the verdict was unreasonable because the jury must have had a reasonable doubt about guilt. In my view, the appeal must be dismissed.
[1](1994) 181 CLR 487.
[2](2020) 268 CLR 123.
[3][2022] HCA 25.
The complainant and appellant were cousins. There were seven years between them; the appellant was older. The Crown advanced four counts against the appellant. The first dated from January 2013 when the complainant was seven. The next two were from October 2014. All three of these counts were particularised as the appellant kissing the complainant on the lips. The fourth was the most serious count. It was alleged to have occurred in July 2016 and was that the appellant touched the complainant on her buttocks.
There was an uncharged incident which the Crown relied upon. It pre‑dated all the conduct which was charged. It was said to have occurred in 2013 and been a kiss on the lips. Its relevance was said to be that it illustrated sexual interest in the complainant. I will refer to this as the uncharged act.
The appellant relies upon inconsistencies in both the evidence given by the complainant, and in statements which she made by way of preliminary complaint. The appellant’s case is that the inconsistencies must have produced a reasonable doubt as to the complainant’s credibility and reliability. In reviewing the evidence before the jury, I will try to deal with it in sections corresponding to the acts alleged by the Crown. In that regard, the jury listened to two police interviews with the complainant; one on 17 May 2018 and one on 30 May 2018. The jury also watched pre-recorded cross‑examination of the complainant which occurred on 20 June 2019. As well as these evidentiary sources, the jury heard from the complainant’s mother, grandmother, a family friend and a cousin. These witnesses gave evidence of preliminary complaint.
Uncharged act
In her first police interview the complainant told police that the appellant was left in charge of her and her younger sister at a time in 2013 when she was seven. They were at their home, which I will call House One. She said that she was sitting on a couch and he pulled her over to him and kissed her on the lips. He told her to lie down with him and she did. She said she was scared. She said when her parents returned to the house the appellant told her to act naturally. She said that this occurred in the living room, as the day was going on towards night-time, and that her parents had left the house to go to the dentist. She said that her mother had asked the appellant to look after her and her sister. She thought that the offending occurred towards Father’s Day, but she could not remember why she associated that day with the offending.
The complainant drew a diagram of the house, and of the living room where she said the uncharged act occurred. She showed two couches on the drawings. She said that the appellant moved from one to the other (where she was sitting) to initiate the offending. Her younger sister was in the room on the floor watching TV. She remembered that the television was screening a show named “Bizaardvark”, which she said was on Foxtel.
The complainant gave further details in response to police questions. She said that the appellant grabbed her by both arms in order to make her lie down with him. She did not want to do that. She said at the time of the offending the television was off. She said the appellant touched her on her legs and her face, rubbing his fingers up and down. After she gave this description of the offending there was this exchange in the interview:
“CON WILLIAMS: Okay. Alright. Before that, you said he pulled you over and kissed you. When did that happen?
[COMPLAINANT]: Um, that’s when my, that’s when my mum went to dentist again the second time.
CON WILLIAMS: So there’s two different times this incident occurred? Alright. So, he hasn’t kissed you the time that your mum went to the dentist the first time? Alright.
[COMPLAINANT]: Yeah.”
Later in the interview the police clarified for a second time that there was not “any kissing” in relation to this occasion and the complainant agreed.
In cross-examination of the complainant, the appellant’s counsel elicited that she recalled she was seven and in grade 2 and that her sister was present on the occasion. She repeated that her parents had gone out. Cross‑examination elicited the following answers:
“And you told the police, initially, that he kissed you on the lips?--- Yep.
So is that your recollection of what he did, on that occasion, on the couch, that he pulled you over to him and kissed you on the lips?--- Yes.
…
And you say that while you were on that couch, he kissed you on the lips?--- Yes, he did.
Was that while you were both still sitting up?--- Yes.
…
And, what, he turned towards you, while you were sitting, and kissed you on the lips; is that right?--- Yes.”
In cross-examination the complainant said that after the appellant kissed her on the lips she got up and walked away back to the other couch and continued watching TV. It was after that that the appellant came over to her couch and laid down next to her and the appellant rubbed her legs. He was still doing that when her parents returned, and the appellant told her to act naturally.
There was cross-examination designed to test the idea that the complainant’s parents had gone to the dentist. She did not depart from her statement that they had gone to the dentist, but the cross-examination showed that she thought that, because that is what she was told.
It was put to the complainant that Bizaardvark did not come on TV until 2016. She was definite that the incident happened before 2016, and she was definite that the television show Bizaardvark was on the TV on the occasion of the uncharged act.
Count 1
The complainant said that when she was seven, turning eight, near her birthday, her parents went to the dentist again. The appellant was staying over. She was crying because she wanted to go with her parents and her mother said no. She thought her sister did go with her parents, leaving her and the appellant alone in the home. She said that the appellant was in the room she shared with her sister. She said that she was lying down, “And he’s kissed me on the lips and was telling me to like, jump on top of him and I didn’t. Wait [INDISTINCT], yeah, I did. And then I like, and then I thought my parents are home now and then he said okay, just pretend nothing’s happened and then that was it.”
In relation to this incident the complainant said:
“CON WILLIAMS: … So, and on this, on this day, you’re in your bedroom and you’re lying down?
[COMPLAINANT]: Yeah.
CON WILLIAMS: And what are, what are you doing in your bedroom?
[COMPLAINANT]: I’m playing on my drum set.
CON WILLIAMS: Okay. So, you’re on your bed, playing [INDISTINCT] playing with your drum set and then tell me about being in your bedroom and, and what happens from there? Okay? So, where’s mum and dad at this point?
[COMPLAINANT]: At the dentist.
CON WILLIAMS: So, they’ve already left?
[COMPLAINANT]: Yeah. They left like ten minutes after and when they went to the dentist, yeah. He was saying to like jump on top of him and stuff.”
The complainant said that when the appellant asked her to get on top of him she said no; he grabbed her arm and yanked it, and she was scared. She said he pulled her so that she was on top of him, facing “the front of him” and that she was on top of “his rude part”. It took quite some questioning for police to have the complainant say that “his rude part” was his penis; she told them she knew the formal word, but did not want to say it. She was sitting on him as though she was sitting on a horse; she was looking at his face. At that point the appellant kissed her on the lips. To do that she described that the appellant, “He lays up”. She agreed with the police clarification that this meant he moved upward and kissed her by putting his mouth over her mouth. He asked her to take her clothes off; she did not. She said that then her parents came back. She saw them arrive back through the bedroom window and she told the appellant that her parents were back and he said, “okay, get off me now” and “just be normal”.
At the end of her first police interview the complainant returned to the subject matter of this count and said that the appellant “said something about having sex with me and I was like no, I don’t want to have it with you ‘cause that’s just wrong”. She said that he told her that if she refused to have sex with him he would hurt her, she did not know in what way, but she did not do it, and ran outside when her parents came back. She then said that she ran outside five minutes before her parents came home but then came back into her room. The appellant had left her room at this point and she was inside the room and saw her parents return through the bedroom window. The appellant said to “act natural” after her parents came home. When she ran outside she spent about five minutes on the veranda.
The cross-examination as to this count again elicited the details that the complainant thought she was seven turning eight “probably”, still in grade 2, and was left at home with the appellant while her parents took her sister to the dentist. She did not think she had been to school, and therefore it was more likely that it was a weekend. She was asked, “So it was daytime and you were in your room. Can you remember what you were doing in your room?--- I was playing with my drum set.” The cross‑examination continued:
“Yes. So were you on your – playing on your drum kit when [appellant] came into the room, were you?---Yes.
Okay. And, when he came into the room, did you keep playing on your drums?---No, I was waving – after I played them, I was waving goodbye to my parents at the window.
Okay. So your parents left; is that right?---Yeah.
When they were leaving, they took your sister with them?---Yes.
Now, you told the police you were actually crying that they wouldn’t take you with them?---Yeah.
So, when they walked out of the house, you were still crying at that point, because you didn’t get to go with them?---Yep.
And they, what, walked out the front and got in the car?---Yep.
And they drove away?---Yep.
And when they left where were you standing? Were you standing at the steps watching them go?---No, I was in my room standing at the window waving goodbye.
So you were standing at the window waving goodbye even though you’d just been crying about not getting to go with them. Is that right?‑--Yep.
Yes?---Yes.
So – now, sorry. When in all of this did you play the drums?---So when they left I went into my room – so when they were about to leave I went in my room – was, like, playing the drums and then I was looking if they left and then I was, like, ‘Bye’, and then, yeah, that’s it.
Okay. So before they left you went in and started playing your drums?‑--Yeah.
How long do you reckon you were playing your drums for, [complainant]?‑-‑Like, five minutes I think.
So five minutes. This is after you’d been crying about not getting to go with them?---Yes.
You’d played your drums for five minutes and then, what, did you hear the car leaving?---Yeah.
So you waved them goodbye from the window?---Yep.
And then went back to playing your drums again?---Yes.
Okay. So after they left you started playing your drums again and you were playing your drums when [appellant] walked in. Is that right?‑-‑Yes.
So after he walked into the room did you keep on playing your drums then?---No.
No, so you stopped when he came in, did you?---Yes.
And what did you do after he came in?---I was on the bed and - - -
So you got onto your bed?---Yeah.”
Cross-examination elicited the detail of the interaction between the complainant and the appellant thereafter, which was consistent with the account the complainant had given to the police, except that in the account she gave in cross-examination she did not mention being kissed and it was put to her, “So he didn’t kiss you during this incident, did he?--- No – wait, yeah, no, no”. This was significant as this count was particularised as the kissing, rather than the other sexualised behaviour described by the complainant.
In cross-examination the complainant said that after the appellant requested she take her clothes off she ran out onto the veranda “and my parents were back”. She saw that they were back when she was standing on the veranda.
Counts 2 and 3
These counts were both particularised as kissing, and were close together in time. The appellant described that she was staying with her aunty, the appellant’s mother, and that she slept over for the night and the beds were full so she had to sleep in the appellant’s bed, next to him. She woke up about five or six in the morning to find the appellant talking to his friend on the phone. She protested because she was woken from sleep. He finished the telephone call and then the complainant said, “he kissed me again … more than five times … And then he said to jump on top of it and I did and then he said he was gonna kiss me and I was like okay. And then um he’s told me that he was gonna up, he was going to kiss me on my neck and then I was like um, I don’t know. Then I got off him and then I went onto, to out, ‘cause I thought someone was awake.”
As police asked more questions the complainant explained that she had spent the day at her aunty’s place playing; ate her dinner, and then went to bed and had a good night’s sleep before she woke up, as described above. The appellant had gone off to play at a friend’s house and was not there when she went to bed. She said that after he ended the phone conversation with his friend, the appellant got into the bed with her and she objected to him taking the blanket because it was a very cold night. (She had previously said that the offending took place close to her birthday which was in November.) She said it was about 5.30 in the morning but dark – she could see black and clouds out the window.
She described the incident to police again. She said that he kissed her “like about two times” as she was sitting on what she called his “down low”. He kissed her on the lips, “just normally kiss on the lips. Like and then he kisses me again but with his tongue in my mouth”. In pre-recorded evidence the complainant said that there was no time between the two different types of kisses. They happened “pretty much the same time”. She said he told her to take off her clothes but she refused, and then he turned on the TV. She went out to see if anyone was awake but no-one was. She went to the toilet and “that’s it”. The appellant turned off the TV and she got back into the same bed as him and went to sleep. Later she woke up and got ready for school. She described the occasion as having taken place in around “July and August”.
In cross-examination she said that she thought she went to bed about eight o’clock and that the appellant went to bed at a later time. She did not remember him coming to bed but did wake up when he spoke on his phone to a friend. He was in bed beside her when he was talking on the phone. The appellant had not been at the house when she went to bed; it was the early hours of the morning and dark with birds chirping when she was woken by the appellant talking on his phone. She remembered it was a cold night. Cross-examination continued:
“Okay. So you couldn’t go back to sleep because his conversation with his friend was so loud?---Yep.
After that conversation stopped and he got under the covers, again, you didn’t go back to sleep?---No.
So what happened after you’d - - -?---He - - -
- - - after he got under the covers?---What the heck. I can’t even remember.
That’s okay?---He had kissed me.
Okay. So he kissed you?---Yeah, with his tongue in my mouth.
Right. Now, when he kissed you with his tongue in your mouth, were the two of you lying next to each other in bed, were you?---Yep.”
Further:
“Now, how many times did he kiss you?---Just once.
Just once, and that was on the lips?---Yes.
Again, was that with a closed mouth?---Pardon?
Was that with a closed mouth?---No.
So that was a kiss with an open mouth?---Wait, yeah. No, with a closed mouth. Yeah.
With a closed mouth. He kissed you once with a closed mouth?---Yes.
So he didn’t kiss you with an open mouth at that point?---So he kissed me with an open – one time. One time with a closed mouth, and then he stuck his tongue in my mouth.
Okay. So that was all part of one kiss you say?---Yep. Yep.”
Cross-examination continued to elicit details consistent with the information the complainant had given to police, saying that after the appellant kissed her she ran out to see if anyone else was awake but no-one was, so she returned to the bed and fell asleep.
Count 4
The complainant described that when she was 10, turning 11, her family lived in a home with a pool in which she and her sister would swim in summer. I will call this House Two. On one occasion the appellant was at their house. It was “pitch black, so we couldn’t really see anything”. The appellant was sitting on the steps in the pool, the second step, and he grabbed her sister first, but then grabbed her by the wrist and pulled her towards him. “I was facing the bottom way … And I could feel his you know, thing on me”. Her mother told them to get out of the pool and after that nothing else happened.
She was wearing shorts and a swim top. She said that once the appellant had pulled her so she was sitting on “his crotches side”, he told her to sit on him and did nothing further. Police say to her that they had heard he was rubbing her and the complainant said, “He was, but I didn’t like to say that”. She clarified that although she could feel his penis, he was rubbing her with his legs and his hands; he was rubbing her butt. She thought that she was sitting like this “not that long but I like, it was like about fifteen minutes”. She could feel his penis rubbing against “my bottom front”. She thought it was soft, not hard. Her sister was in the pool, swimming in the shallow end. It was dark, “you couldn’t see anything.”
In cross-examination the appellant’s counsel led the complainant through much of her evidence-in-chief so as to have her confirm that the offending occurred on a summer night; that it was pretty dark; that the appellant first had hold of her sister and had her sister sitting in his lap, and then grabbed hold of the complainant and pulled her over to sit in his lap while he was sitting on the steps of the pool. The complainant confirmed she was sitting on his crotch and that the appellant held her on top of him so that she could feel something soft on her bottom, and that he rubbed her legs and her bottom with his hands. She said she was trying to get away from him by kicking off the step and pushing against him, but she thought that she was there for “like, five, 10, 15, yeah, minutes, yeah”. Cross-examining counsel clarified that it was not just a few seconds, it was “quite some time”.
Preliminary complaint evidence
The complainant gave evidence that she did not tell anyone about the touching and kissing right after it happened because she was young and did not know if it was right or wrong.
The family friend gave evidence that she was the best friend of the complainant’s mother, and that the complainant disclosed to her that the appellant had touched her breast in the loungeroom of House One. She was asked whether a disclosure was made about an incident in a pool and said she could not remember. In cross‑examination she was led, and agreed with the proposition that the complainant said something about “being grabbed around her waist in the pool”.
In cross-examination the family friend said that she had been told things about the appellant and the complainant by the complainant’s grandmother and she approached the complainant to talk about these things. She had known the complainant all her life. She wanted the complainant to know that she was able to open up to her. At the time the complainant made disclosures to the family friend, her grandmother was present and she could not recall whether her mother was also present. She thought the disclosures were made “a few years ago”.
The complainant’s grandmother said that the complainant was staying with her, and numerous other cousins, during the school holidays. The children were play-fighting with each other and the grandmother chastised them. After that incident the complainant started crying and when her grandmother asked what was wrong she asked:
“‘Nanna, can I tell you something?’ And I said, ‘Yes.’ And she sat down in front of me and then she proceeded to tell me about [appellant] and he’d been doing things to her. I asked her what did she mean, what was he doing. And she was very emotional. So she couldn’t quite get out to me what it was. And so I said to her, like, ‘Tell Nanna what’s going on?’ And she said, ‘He was touching me.’ And I was really taken aback by that. I – so I said, ‘Okay. How? How was – where?’ I really didn’t know what to say but I know I asked her where, ‘Where was he touching you?’ And she couldn’t tell me but I said, ‘Okay. Show me.’ And she indicated to her breast and her crutch area.”
The complainant disclosed that the touching occurred at House One. Her grandmother said, “One specific occasion she told me about they’d gone to the dentist and [appellant] had stayed home to babysit [the complainant] and [her sister] and … it happened then as well.”
The grandmother said that the complainant disclosed another specific time when the complainant had done washing up for the appellant and he paid her $10, “and he wanted her to sit down next to him on the bed in his room but she heard her Dad come in again and took off. So, yeah, she didn’t sit down.”
The complainant’s grandmother confirmed there was a discussion at which she, the complainant’s mother, the family friend and the complainant’s cousin, were all together and disclosures were made. And that there were disclosures within a day or two of that conversation when various combinations of those people were together.
The complainant’s mother said that when they lived at House One, the appellant babysat the complainant and her sister, and that he was around quite a lot because his mother lived just around the corner. He did not babysit often, “because we were always home. Like, we were always together. So it was only just really if I needed to go to the dentist or if I needed to go to the shop. It was only just those moments of time when he would look after the kids.”
She said she did not often go to the dentist; she thought she only went “about a couple of times. Not a handful of times” when they lived at House One. She said that she would leave the children with “Dad” if she needed to go out, but if she and her husband needed to go out and the appellant was there, she would leave him to watch the kids: “Cous, we’ll be back. We’ve just got to quickly run down to the dentist.”
The complainant’s mother gave evidence that at some point the family moved to a house with a pool and that while they were living there, the appellant moved in with them for a period of time.
The mother gave evidence that when the complainant was living with her grandmother she (the complainant’s mother) tried to have a conversation with the complainant about the appellant. The complainant was crying and very upset; she could not get much out of her. She says she could not really remember having the conversation, but then later said that the complainant told her:
“She said it happened in [House 1]. I go – she goes, ‘Remember that time when you went to the dentist?’ And I go, ‘Yep.’ And she said, ‘It happened then.’ And I go, ‘What happened then?’ And she said that, ‘When youse left, and when you were [indistinct] me and I was crying, you just told me to go inside.’ I go, ‘Yep. And what happened?’ And she said that he grabbed her and sat her on her lap – on his lap in the lounge and just started – just getting her – getting her to just ride him.
Ride him?---Like – like – like go up against him. And I go, ‘How? How did he do that?’ And she said that, ‘It was near the [chaise]’ – so when you walk into [House 1], our lounge went like that and she said, ‘It was near the [chaise] of the lounge and I was sitting on the ground’ – because the mattresses were there. And she said [her sister] was sitting next to them. She’s moved then and he’s done what he’s done. And I said, ‘Okay.’ Yep.
All right. Did she make any other disclosures about what happened at [House 1]?---She did tell me that another time it happened there in one of the rooms. It was not my room, it was the middle room next to the bathroom where the drum set was.
Okay. And who slept in that room?---That was [her sister’s] room. We ended up turning that into a drum room, yeah. We just had the drum sets in there. So that was a drum set and a mattress in there.
Okay. And what did she say happened in [her sister’s] room or in the drum set room?---She said that she was in the room lying down and he was lying down next to her and he was getting her to sit on her – sit on him and rub up against her. And I said, ‘Where was I?’ She goes, ‘You were in the front, like, out the front, like, in the lounge somewhere.’ And I said, ‘Okay.’
…
Yes. So did she ever say that anything happened at the – at [House 2], at that address?---Yes. She said that something had happened at [House 2] and that was in the pool. It was a late – like, a late afternoon going into night. She – I was cooking dinner. She said I was cooking dinner. I was upstairs. And she said to me that they were in the pool, her, her little sister, and [appellant] in the pool, and she just felt that – she said that she felt that her sister was, like - - -
…
And what did she say?---She said that he had grabbed her and he just started just rubbing – like, every time they swam close – he swam close to her, he would rub his up against her back or bum and I was just like, ‘What the fuck?’
He’d rub his what against her?---His private part. Like, his – the front of his part. Like, his balls.”
In cross-examination it was put to the complainant’s mother that her police statement did not say anything about allegations in a room with a drum kit. She accepted this. She said it was a possibility that she had not known of this allegation until after the complainant gave her police statement.
She was taken to her statement, to a sentence which said, “I remember going to the dentist one time with [name]”. It was put to her that this was inconsistent with her evidence that she had gone to the dentist several times, but I think it is fairly clear from the cross‑examination that her explanation was that she did remember going several times to the dentist, but remembered one time in particular, and that time was the subject of the sentence in her statement. The particular occasion was when the complainant and her sister stayed home with the appellant.
The complainant’s cousin, who was slightly older than the complainant, gave evidence. She was also the appellant’s cousin. The complainant had complained to her that the appellant had kissed her multiple times. She made these complaints on more than one occasion and complained of at least two separate occasions on which the appellant had kissed her; on one occasion she thought the complainant and appellant were living in the same household.
Admitted facts
The complainant’s age was admitted. It made her seven years at the time of the uncharged act and nearly eight at the time of count 1. She was eight at the time of counts 2 and 3. She was 10 at the time of count 4. She was 11 years old at the time of the police interviews. It was admitted that Bizaardvark was a television show first made in 2016.
Contradictions and inconsistencies
There were contradictions and inconsistencies in the complainant’s evidence. There were contradictions as to whether or not she was kissed during the incident which comprised the uncharged act. That bore on the complainant’s reliability, but it was not the subject of any count alleged against the appellant. On either version the complainant gave, the incident involved the appellant showing sexual interest in the complainant, which was the purpose for which the evidence was led.
The fact that Bizaardvark could not have been the television show which was being played in the loungeroom at the time of the uncharged act is something which in my view would not necessarily trouble the jury. The complainant was seven years old at the time of the events she recounted. She was 11 and 12 years old at the time of the recounting. Memories fail us all, and the fact that she had a definite, but erroneous, recollection as to a background fact associated with the uncharged act was not something which meant that the jury must have had a reasonable doubt as to the appellant’s guilt as to any of those acts which were charged.
There was also an inconsistency in the complainant’s evidence about whether there was kissing which formed the basis of count 1. It was particularly submitted that the answer at [18] above was ambiguous. In my view it is not. The “yeah, no” idiom is well-established in Australian English. If it was unclear to anyone at the time it could have been clarified. Looking at the whole of the evidence as to this incident, I do not think the jury was bound to have a reasonable doubt that the offending occurred.
It was a curiosity that on two occasions the complainant said she was left with the appellant while her parents went to the dentist, apparently for a very short time. Nonetheless, the complainant’s mother’s evidence supported the complainant’s evidence as to this. It was not put to the mother that she did not go to the dentist on each of those occasions, or that a visit to the dentist would have taken longer. Even if the jury wondered whether or not the parents did in fact go to the dentist so frequently, and for such short times, that would not necessarily cause them to have any difficulty with the complainant’s evidence. In cross-examination of the complainant, she said she was told her parents had gone to the dentist. There is no reason that the jury might not have accepted that.
As to counts 2 and 3, it was difficult to know the exact sequence of events before and after the offending, but there was a finite set of events described with consistency across the police interview, pre-record, and cross-examination. As to the offending itself, the complainant omitted a description of the appellant kissing her when cross‑examined. However, when the cross-examination came back to it specifically, she gave evidence that the kissing did happen.
Where the appellant relies upon inconsistencies in sequencing events, it might be thought that the complainant’s age at the time of the events, and at the time she was asked to recall them, would be taken into account by the jury. Similarly, describing a prolonged, or sexual kiss, as five kisses, or two kisses, or one continuous kiss might well be accounted for by the complainant’s youth and inexperience. I think that there was enough evidence for the jury to be satisfied that two kisses occurred.
The jury might have thought the complainant’s time estimates were affected by her youth. Particularly her estimates of how long she was left alone with the appellant while her parents were at the dentist, and how long she spent sitting on the appellant’s lap in the pool might be unrealistic, as a child’s might be. Even if the jury were to have taken such a view, that was no basis upon which they must necessarily reject her evidence as to the acts constituting the offending.
The family friend and the grandmother gave evidence of a preliminary complaint of the appellant touching the complainant’s breasts and crotch when that evidence was not given by the complainant. They did not give evidence that the complainant said she had been kissed, although the cousin did. The jury had to assess whether the preliminary complaints corroborated the complainant’s evidence and separately, whether they cast doubt on the complainant’s reliability.
Given the complainant’s upset, and reluctance to speak, even to her grandmother and mother, there was room for miscommunication and misunderstanding. There was room for a view that the complainant did make complaints as reported by the family friend and her grandmother, but had forgotten or omitted some of the details of the incidents which she described first to police, and then during her evidence at the pre-record. What was said to the family friend and the grandmother does not contradict the complainant’s evidence. None of the occasions described by the complainant were fleeting. The appellant’s touching her breasts or crotch during the course of the incidents she described would not have been out of place in the generalised sexual exploration by the appellant described by the complainant.
The evidence given by the complainant’s mother at [39] above is fairly plainly an elision of the subject matter of counts 1, 2 and 3. Even then some parts of it are inconsistent with what the complainant says. Also the mother’s evidence as to count 4 is inconsistent with the complainant’s version. The jury saw and heard both witnesses. They heard the mother explain that firstly her daughter was very upset and crying when she communicated the subject matter of the preliminary complaints. She was afraid to speak of the subject matter to her mother. That in itself could have produced miscommunication between them. The jury also heard that there were parts of the preliminary complaints which the complainant’s mother could not recall. They heard her explain that she had spoken to her daughter about the different occasions of sexual offending on more than one occasion. There was evidence that at about age 10, the relationship between the complainant and her mother deteriorated, so that the complainant went to live with her grandmother for a while. There was other evidence which indicated quite a degree of change and instability in the complainant’s family life, and the jury was entitled to view these more general matters as bearing upon the recollection of the preliminary complaints recounted by the complainant’s mother. Further, the jury was entitled to prefer the complainant’s evidence to the mother’s.
Advantages of the jury
The authorities as to unreasonable verdicts, and M v The Queen in particular, emphasise the advantages of a jury in seeing and hearing the witnesses, and make it clear that it is not the province of the Appeal Court to usurp the jury’s role. I think those injunctions take a particular focus in this case. It is clear from the written transcript that the complainant and her mother at least, struggled with the use of English, or at least the formal English of the courtroom. From the transcripts it can be seen that there are times when the complainant says things which, as a matter of strict logic, make no sense – see [17] above – or, on other occasions, as a matter of strict logic, are ambiguous – see [24] above. The complainant’s mother frequently asked for questions to be repeated and said to the cross-examiner that she did not understand what his questions meant. As well, the mother seemed to have difficulty expressing herself – see for example [39] above. The mother quite often answered that she did not recall. That may have been the case. Another possibility is that she simply could not find the words to answer, and used a lack of memory as a default answer.
Towards the end of her cross‑examination, the complainant’s mother was distressed. The trial judge directed that she be given a break. The complainant presented with an odd affect during her pre-recorded evidence. The judge presiding at the pre-record questioned it, and questioned counsel. The complainant told the judge presiding at the pre‑record that she was alright, but just very tired. The jury sent a question to the judge presiding at the trial as to what they ought to make of the complainant’s affect. There was some discussion recorded in the transcript that she appeared sedated.
The other matter which can be seen to have affected the complainant’s evidence was shame or embarrassment. It was clear from the police interviews that she was embarrassed and ashamed, for example, to say the word “penis”. When talking to the police she omitted the detail, in relation to count 4, that the appellant was rubbing her because she “didn’t like to say that”. It was her mother’s evidence and her grandmother’s evidence that the complainant was very reluctant to speak about the sexual matters to them.
All these are matters which the jury was in a position to assess. We are not. They gave the jury a distinct advantage when considering the ambiguities and inconsistencies relied upon by the appellant.
In my view, the jury’s verdict was not unreasonable. The inconsistencies relied upon in this appeal were brought to the jury’s attention. It was perfectly possible the jury considered the inconsistencies and ambiguities in the evidence before them having regard to the complainant’s age, inexperience, shame, and communication difficulties, and was satisfied that her account of the offending was truthful. There was no evidence which compelled the jury to hold a reasonable doubt about the appellant’s guilt on any of the counts.
JACKSON J: I agree with Dalton JA.
CROW J: I agree with Dalton JA.
0
3
0