R v S

[2001] QCA 97

[2001] QCA 97

COURT OF APPEAL

McMURDO P
McPHERSON JA
BYRNE J

CA No 311 of 2000

THE QUEEN

v.

S  Appellant

BRISBANE

..DATE 15/03/2001

JUDGMENT

THE PRESIDENT:  The appellant was convicted of four counts of indecent dealing with a child under 16 with a circumstance of aggravation that the child was under 12 years.  

The appellant claims that on the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt because of discrepancies and inadequacies in the complainant's evidence such that there is a significant possibility that an innocent person has been convicted.

The complainant was aged 7 years at the time of the offences, 9 when she made a complaint to police and 10 at the time of trial.  The appellant is a relation by marriage to the complainant, the brother of two men who are married to her aunts, her mother's sisters.

The prosecution case turns solely on the evidence of the complainant child. Her evidence was given primarily by way of section 93A Evidence Act 1977 videotape but she was also cross-examined at the trial when she gave unsworn evidence. The section 93A videotape was played to the jury and the jury were provided with a transcript.

The complainant told police of the first incident when the appellant touched her.  It occurred when the complainant, the appellant and a family group went to a beach at Caloundra on Christmas Day 1997.  The appellant took the complainant into the water at the beach and touched her genitals on the inside of her swimmers (count 1).  A second similar incident occurred on the same day at the same beach (count 2).

During the same Christmas holiday period before New Year's Day at the home of the complainant's aunt and uncle (the brother and sister-in-law of the appellant) in a tent in the back yard, the appellant took down the complainant's pants and touched her genitals (count 3). 

The final count occurred during this period at her aunt and uncle's house when the complainant was filling a wading pool with a hose.  The appellant touched her genitals under her swimmers and inserted the hose into her swimmers so that the hose and water touched her genitals (count 4).

The appellant gave evidence that he did not commit any of the offences and nor did he have the opportunity to commit the offences.  In relation to counts 1 and 2 he said he left the family home after lunch and did not go to the beach with the complainant and the family group.  In relation to counts 3 and 4 he said he did not visit the home of his brother and sister-in-law, the complainant's aunt and uncle, after Boxing Day 1997 and that he was not present at their home during the time period claimed by the complainant.  The appellant's brother and sister-in-law gave similar evidence as to the appellant's lack of opportunity to have committed the offences in that time-frame.

It should be noted that the complainant's mother, father and other relatives gave evidence supporting the appellant's account that the complainant was present at the beach when counts 1 and 2 were said to have occurred. 

The appellant submits the complainant's evidence was unsatisfactory in the following respects. First, during the section 93A videotape the complainant said that the offences happened one or two months ago when in fact they occurred 18 months earlier. In other parts of the interview the complainant is able to place the incident in the time period alleged in the indictment, explaining that it was when she and her family had gone to Caloundra for a holiday at Christmas; they spent only one Christmas with the appellant present and that was the Christmas at Caloundra. As I have mentioned, other prosecution evidence supported the complainant on this point.

Second, the appellant submits that the complainant's evidence, that prior to the commission of counts 1 and 2 the appellant was pulling her one way in the water whilst she was holding onto her father wanting to stay with him, is not supported by her father's evidence.  Her father simply said he did not notice anything untoward occur that day.  It is not in my view surprising that, in the context of a family romp at the beach when a child is taken by adults into deep water so that she is out of her depth, the complainant's father would not recall the incident, even if it occurred as described by the complainant.  It is the sort of incident that might well remain vivid in the complainant's memory but not have been noteworthy to the father.

Third, the appellant claims the complainant was wrong about the person staying at the house on the night of the first two offences.  She gave evidence that two cousins were present when in fact other evidence establishes that one was not born at the time of the offences and the other may not have been present during the period of the first two offences.  Bearing in mind the age of the girl and the lapse of time this was not necessarily a significant matter and was canvassed before the jury.

Fourth, the appellant points out that during cross‑examination the complainant omitted all mention of count 2 and said that she thought there was only one touching at the beach. In the s.93A videotape she gave evidence of the second incident. This evidence was before the jury. The trial Judge specifically referred to this matter in his summing-up and it was clearly an issue in the defence address, as were the other inconsistencies highlighted by the appellant in this appeal.

The appellant's fifth complaint is that the complainant added for the first time in her cross-examination an allegation that the appellant had put make-up on her bottom at about the time count 3 occurred.  The primary Judge specifically referred to this matter in his summing-up and suggested that it may cause the jury some disquiet but reminded them it was a matter for them. 

The primary Judge in his summing-up also mentioned the factual differences that defence counsel had pointed out to the jury in some detail.

None of these inconsistencies alone or cumulatively in my view warrant any disquiet about the jury verdict.  The complainant girl was only 7 years old at the time the offences occurred.  She was 9 when she spoke to police and 10 at the time of trial.  In those circumstances it is not surprising that there would be inconsistencies such as these.  The inconsistencies were clearly fully aired before the jury who had the opportunity to assess the complainant on videotape and during cross‑examination. 

The learned primary Judge gave very careful instructions to the jury.  He told them that "... the Crown case stands or falls on your assessment of her evidence" on more than one occasion.  He added:

"Indeed, her evidence is so central to the Crown case, that unless you are satisfied beyond a reasonable doubt that she is both truthful and reliable in relation to the evidence that she gives specifically to support the counts - not the extraneous evidence, but the evidence specifically to support the counts - then you would have to acquit.  That is how important it is.  Your own experience will inform you and, you must approach the assessment of her evidence carefully because she is a child."

His Honour referred to the inconsistencies in her evidence specifically noting her failure to refer to the second incident during cross-examination and her introduction of evidence about make-up on her bottom for the first time during cross-examination.  His Honour reminded the jury that her evidence was not supported in any way and:

"... that means you have to be very careful; you have to scrutinise her evidence very carefully.  It does not mean you cannot convict; it simply means that before you can convict, you would have to be satisfied beyond a reasonable doubt that she is both truthful and reliable."

The appellant further claims that the lack of evidence of distressed condition also throws the jury's verdict into question.  The complainant's parents did not notice that she was in a distressed state after the offences.  The incidents were not however the most serious example of offences of this type.  The complainant said that the appellant told her not to tell anyone and she feared that he might hit her.  This in my view places the lack of evidence of distressed condition in context. 

In my view, none of these matters either alone or cumulatively raises a significant possibility that an innocent person has been convicted.  I would reject this ground of appeal.

The second ground of appeal is not pursued. 

Finally the appellant submits that despite the warnings given to the jury which I have set out, the Judge was required to go further and warn the jury that in all the circumstances it would be dangerous to convict on her unsupported evidence. The warning should have listed the various weaknesses in the case and should have been expressed in terms making clear the caution to be exercised in the light of those circumstances. Robinson v. The Queen [1999] HCA 42 at paragraph 26 and Crampton v. The Queen [2000] HCA 60 at 44, 45, 125 and 126.

In my view his Honour satisfactorily complied with the requirements of Robinson and Crampton in this case by the general directions given and by specifically highlighting particular weaknesses in the complainant's evidence. The delay in this case was not very long. Indeed the appellant was able to call evidence which questioned the time frames relied on by the complainant. The trial Judge in his report notes that this was a major factual issue for the jury. The situation is therefore quite different to that which occurred in Longman v. The Queen (1989) 168 CLR 439.

In all the circumstances of this case I am satisfied the directions given by the learned primary Judge were in every sense adequate.  I would refuse the appeal.

McPHERSON JA:  I agree.

BYRNE J:  I agree.

THE PRESIDENT:  The order is the appeal is refused.

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