R v Scott

[2011] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scott [2011] QCA 97

PARTIES:

R
v
SCOTT, Justin Leigh
(appellant)

FILE NO/S:

CA No 258 of 2010
DC No 185 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2011

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The conviction be set aside.

3.   A verdict of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of maintaining a sexual relationship with a child – where the complainant gave evidence describing the appellant’s uncircumcised penis – where the appellant was circumcised – where the corroborating evidence of the complainant’s brother was unreliable – whether the verdict was unsafe or unsatisfactory having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the primary judge admitted into evidence a telephone conversation between the appellant and the complainant’s grandfather – where, during the telephone conversation, the appellant replied in the affirmative to allegations of wrongdoing – whether the primary judge erred in admitting such evidence

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Soma (2003) 212 CLR 299; [2003] HCA 13, cited
SKA v The Queen [2011] HCA 13, cited
The King v Grills (1910) 11 CLR 400; [1910] HCA 68, cited
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, cited

COUNSEL:

M J Byrne QC, with H Walters, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Arthur Browne & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MUIR JA:  Introduction

The appellant was convicted after a trial in the District Court of maintaining a sexual relationship with a child and sentenced to four years imprisonment.  He appeals against his conviction on grounds that:

(1)        the verdict was unreasonable;

(2)        the trial judge erred in admitting into evidence a telephone conversation alleged to have occurred between the complainant’s grandfather and the appellant;

(3)        the trial judge erred in directing the jury that the appellant’s response to what was said to him in the course of the telephone conversation was capable of being construed as a statement against interest.

[2]      Six witnesses, including the complainant, gave evidence in the prosecution case.

The complainant’s evidence

[3]      In her evidence-in-chief, the complainant, who was then nine years of age, affirmed as true the content of a DVD recording of an interview of her by a police officer on 11 September 2009.  She was reminded in evidence-in-chief that she had informed the police officer that she had “sucked [the appellant’s] doodle” and that “it happened in his room and in [her] room and in the bathroom”.  She was asked how she went about “sucking [the appellant’s] doodle”.  She responded, “Well, it didn’t feel nice and it was gross because it didn’t taste nice.”  Asked what it tasted like, she said, “It taste like this watery stuff.”  This exchange then occurred. 

“And when you sucked on his doodle, what happened?--This yellow, pus-y stuff came out. 

Came out of what?--His doodle. 

And when the yellow, pus-y stuff came out of his doodle where did it go?-- In my mouth. 

And…do you remember if that happened once or did it happen more than once?--More than once. 

Do you know how many times the yellow, pus-y stuff came out of his doodle?-- No.”

[4]      In cross-examination, the complainant admitted that her brother told “big whoppers sometimes”.  She said that the first sexual incident occurred when she was six, turning seven, and on that occasion she “had to touch his doodle”.  She said that “a doodle” was “a long stick that is very, very soft…it’s his skin colour… [a]nd inside it’s really red”.  Asked, “[a]nd how do you get to see the red part?”,  she responded, “He opens the skin and he shows me…[b]y pulling it back.”  The cross-examination continued:

“So what you’re saying is the – the – the pink part or the red part inside is covered by skin, is it?-- Yes.

And you have to pull that back?--Yes.”

[5]      It was put to her that that was what her brother’s penis looked like and that the appellant’s didn’t “look like that at all”.  She responded, “I don’t know.”  The following exchange then took place:

“You say [the appellant] has – when you touched his doodle or you sucked his doodle, he had to pull the skin back so that you could see the pink bit inside, is that right?-- Yes.

That's not true at all, is it, …?-- I don't know.”

[6]      The complainant was asked where, at what time and in what circumstances the first sexual incident happened.  She said that it was in the middle of the day in the appellant’s bedroom after she had been playing on a trampoline with friends.  She said that the appellant had called to her from the front yard, that she was with the appellant in the room for a few minutes and that after the incident she played a game on the computer.  She couldn’t recall what she was wearing, but said the appellant was wearing board shorts and a light shirt.  Asked what happened, she responded, “He told me what I needed to do… [t]o touch his doodle.”  She said, “I touched his doodle, but first I said, ‘if I touch your doodle you got to let me go on the computer’.” 

[7]      The following evidence was given in the course of this part of the cross-examination:[1]

[1]No spelling or grammatical corrections have been made.

“Okay. What did you do?-- I felt it.

You felt it. And what happened then?-- I don't know.

When did he pull the skin back so you could see the - the red or pink bit?-- Well, he wanted - he wanted me to pull it back and - pull it back and put it back on his pink part of his doodle.

Okay. Did you do that?-- Yes.

So you pulled the skin back down his doodle over the pink bit?-- Mmm-hmm.

Okay…that simply never happened, did it?-- It did.

Okay. You - how many times did you ever touch his doodle?-- More than 10 times.

Mmm. And did the - the skin have to get pulled over the pink bit on every occasion?-- No.

What happened on the other occasions?-- All I needed to do is just feel it.

Okay. Did he pull the skin back?-- No.

Well, when you did it on those other occasions was the skin pulled back or was it all over the - over the doodle? Did it all look the same, like normal skin?-- I don't know what you mean.

Perhaps that - when you say you touched it again, on other times, what did his doodle look like?-- It looked like a cylinder.

Mmm. What colour?-- A pink-ish, white-ish colour.

Mmm. Which part? All of it?-- No.

What part?-- On his skin.

On his skin. Mmm. And what was the - did he - and you say there was no skinned pulled back on this other time?—Mmm-hmm. That's right.

Mmm. Where was the skin?-- On the pink-ish, red-ish part of his doodle.

What, was the skin over the top of that, was it?-- Yes.

Okay. And how many times do you say that happened?--More than 10 times.

Okay. And you said on another time you sucked his doodle; is that right?-- Yes.

How did that happen?-- It happened - like I - he called me in and said, “You” - in a soft and quiet voice, “You need to suck my doodle.” And he knew what I wanted before that I can suck his doodle to go on the computer.

You - and what did - what happened then?-- Then I had to put my hand on his doodle and put my mouth on it and - and suck it.”

The complainant accepted that she had seen her mother “have to pull [her brother’s fore] skin back to clean him.”

The evidence of the complainant’s father

[8]      The complainant’s father, who had separated from her mother around the time her brother was born, gave evidence of an occasion on which, in January 2009, the two children had come to stay with him.  He said that he was alone with the two children when his son made “some disclosures” to him in response to which the complainant became “very quiet and defensive”.  Shortly afterwards, she said to him, “Yes, Dad, he’s been interfering with me.”  She said that the appellant had been “showing himself, getting him to touch – so she can touch him and he wanted to touch her and she said no.”  He elaborated that the appellant “wanted her to touch his genitals and…vice versa”.  He said she didn’t go into detail and that he wasn’t told if the complainant had touched the appellant on the genitals.  He said that she was very upset and he didn’t question her any further. 

[9]      In cross-examination, the complainant’s father agreed that her brother had told him in the complainant’s presence that he (the brother) had looked through the bedroom window and seen the appellant and the complainant “doing rude things”.  He admitted also that the complainant did not respond although asked five times if what her brother said was true.  He accepted that he explained to her what was meant by “interfering” and had told her that she wouldn’t get into trouble if she spoke about those things.  He said that after about half an hour the complainant told him that the appellant had been interfering with her. 

The evidence of the complainant’s grandparents and mother

1. The complainant’s maternal grandmother gave evidence that on 7 January 2009 the complainant, who was sitting on her lap at the time and upset, told her that the appellant had been interfering with her and that he had made her touch his privates.  She said that subsequently, when the complainant had come back to live with her grandparents, the complainant told her that the appellant used to “call her when she was outside playing with her friends…and make her touch his privates”. 

1. The appellant’s maternal grandfather recalled that on 7 January 2009 he was present when the complainant, who was distraught and crying, said that the appellant “had touched her on private parts”.  The following evidence-in-chief was given in respect of a telephone call the complainant’s grandfather said that he had made to the appellant the following day.[2] 

“And can you tell the jury what was said in that conversation?-- Yes, to the best I - to I - I can recall is I said, ‘…you better listen and listen hard…[the complainant] is devastated she’s in – she’s in a real mess and they’ve told - the kids have told us what you’ve been doing with - with [the complainant].  So you - you better get yourself a good lawyer and the police will be around to see you in - in the near future.’

And what did the accused say?-- And I said - I said to him, ‘You know what I'm talking about, don’t you?’ And he said - there was a pause, and he said, ‘Yes.’

And was there any further conversation on that phone call?-- No, I - I hung up.”

[2]R87.

1. In cross-examination, the complainant’s grandfather admitted that he was angry at the time of the phone call.  He said that he had written down what was said in the course of the conversation the next day.  He accepted that he was so angry he wasn’t particularly interested in anything the appellant had to say and that he “just wanted to have [his] say.” 

1. The complainant’s mother gave evidence that the appellant was circumcised and that her son was not. 

Ground 1

1. The substance of the appellant’s contentions in respect of ground 1 was as follows:

“…[T]he account of the complainant child (aged somewhere between 6 and 8 years) was critical to a safe conviction.
…

…[A]reasonable jury should have experienced a reasonable doubt as to her reliability…[as]:

(a)Both the complainant and her brother…wanted their mother and their biological father to be reunited;

(b)In order for that to happen, the appellant was ‘in the way’ as step-father; yet, before the allegations, their mother and the appellant were in ‘a very loving relationship’;

(c)The allegations were ‘instigated’ by [the complainant’s brother] to their biological father when they were on a visit;

(d)Like a large number of the allegations made by [the complainant’s brother], this one was not true;

(e)Thereafter, it took a deal of prompting for the complainant to give credence to what had been said by her brother;

(f)…[B]oth children had knowledge to describe sexual acts from having watched adult movies;

(g)…[T]he complainant was not a candid witness;

(h)…[U]pon an issue so central as to require a reasonable doubt, the complainant’s description of the appellant’s penis was at odds with the objective, real position;

(i)…[T]he appellant was circumcised…and [the complainant’s brother] was not;

(j)The complainant was aware of the state of [her brother’s] penis so as to be able to describe it;

(k)What, critically, the complainant could not describe and, indeed, wrongly, described was the state of the appellant’s penis; and

(l)…[F]or a person to be convicted on evidence of this quality is a substantial miscarriage of justice.” (citations omitted)

Consideration of ground 1

1. There were aspects of the evidence of the complainant’s brother which suggested that his evidence needed to be approached with considerable caution.  The primary judge reminded the jury what the prosecutor and defence counsel had said about the evidence given by the complainant’s brother and remarked that the prosecutor “didn’t place a great amount of reliance on [his] evidence at the end of the day”.  Counsel for the respondent submitted that the jury did not need to be satisfied of the complainant’s brother’s honesty or reliability in order to be satisfied of the matters necessary to constitute the offence charged.  That submission was plainly correct but the brother’s conduct and evidence remained relevant for the reasons discussed later. 

1. As the primary judge informed the jury in his summing up, the prosecution case depended heavily on the evidence of the complainant and there was little other evidence which tended to provide support for her account.  The matters relied on by counsel for the appellant to demonstrate unreliability in the complainant’s evidence were as follows.  The complainant denied that a former male friend of her mother used to throw DVD’s at her, that she ended up with a scar on her head from a DVD and that the male friend used to hit her brother with his belt.[3]  The complainant’s brother agreed that the male friend used to hit him with his belt and that he used to throw things at the complainant.  The complainant’s mother agreed in cross-examination that this person had been very violent to the children, but it was not suggested to the complainant’s mother that the violence took any particular form apart from locking the children in a room and assaulting them. 

   [3]R33.

1. The next alleged problem with the complainant’s evidence was a difference of recollection between her and her mother concerning when the mother and the two children came to Townsville to live.  The remaining matter was a comparison of the complainant’s grandmother’s evidence that the appellant “made her touch his privates” with her grandfather’s evidence that she said that the appellant had “touched her on private parts”.  As the grandparents were present when the complainant told them what had happened to her, this difference in recollection is attributable, not to any unreliability of the complainant’s evidence, but to a faulty recollection on the part of one of her grandparents.

1. The jury was entitled to conclude that none of these matters established that the complainant was an unreliable witness.  She was very young when the family moved to Townsville (five or six) and when her mother had a relationship of an unspecified duration with the male friend referred to earlier.  The fact that she was unable to recall the person was not a matter of much significance.  Nor do the matters referred to in paragraphs [16] and [17] above demonstrate that the appellant was an unreliable witness. 

1. Counsel for the appellant submitted that the evidence of the complainant’s brother was unreliable.  Counsel for the respondent accepted that that was so.  There was no significant clash between the evidence of the complainant and that of her mother who was not asked about the throwing of DVDs or the scarring of the complainant.  Of much more concern, are the descriptions given by the complainant of the appellant’s penis.  Although the appellant was circumcised, the complainant described an uncircumcised penis.  Counsel for the respondent submitted that, having regard to the complainant’s age, it was open to the jury to conclude either that she was describing in her own vocabulary what the appellant’s penis looked like to her, or that her recollection of the appearance of the appellent’s penis had become confused with one she may have seen in a movie.

1. I am unable to accept these explanations.  The complainant described in detail and at some length acts which could only have been performed if the appellant was uncircumcised:  the pulling back of a foreskin to reveal “the pink part or the red part inside” covered by the skin.  This was said to have been done by her at times on the appellant’s request and by the appellant himself on at least one other occasion.

1. The substance of the evidence was that the complainant had seen and handled the appellant’s penis more than ten times.  It is obviously highly unlikely that the complainant could have formed a memory of an uncircumcised penis with a foreskin which she handled to reveal a red or pink part inside, solely from the alleged offending conduct.

1. The complainant admitted seeing a penis being sucked in movies, but for the complainant’s recollection to have become confused with what she had seen in this regard would have required close attention on her part to the detail of highly pornographic material.  The evidence does not suggest that this was likely.  If the complainant did derive her memory of the detail of the appearance of the appellant’s penis and of how the foreskin was moved and of what could then be seen from watching movies, there would be a real concern about the complainant’s ability to separate reality from fantasy.  It would be difficult or impossible to determine where one or the other began or ended. 

1. It is more likely, I think, that the complainant’s understanding of the appearance and general anatomy of a penis was derived from observing her brother’s penis on occasions.  She admitted seeing his foreskin pulled back.  Her description of the appellant’s penis, which has just been discussed, plainly owes nothing to observations of the appellant’s penis.  Yet, if her account of the appellant’s misbehaviour was generally correct, it would be reasonable to conclude that she would have been more familiar with the appearance of the appellant’s penis than that of her brother. 

1. I have observed that it was not necessary for the jury to accept the evidence of the complainant’s brother in order to convict.  However, his evidence, even if disbelieved generally, does have a bearing on whether the complainant’s allegations were proved beyond reasonable doubt.

1. The complainant’s brother was plainly untruthful in his evidence in a number of significant respects.  For example, in cross-examination he admitted that his story in his police interview that he had made a note concerning the appellant’s conduct and delivered it to the police station was untrue.  In cross-examination, he admitted that the window in the bedroom used by his mother and the appellant was too high to permit him to see into the room when standing at the window.  He had said in his police interview that he had looked through the window and had seen the appellant and the complainant “tongue kissing and all these sorts of things”.  Asked why he told police that he had gone to the police station and had made his list, he responded that he wasn’t sure.

1. The complainant’s brother admitted that he had wanted to get his father back to live with his mother.  He made the initial allegation of misconduct by the appellant to his father and the complainant’s first complaint, also to her father, was made after she had spoken to her brother in her father’s absence.  The complainant’s allegation, which was not immediately expanded on, was, “Yes, Dad, he’s been interfering with me.”  In a discussion about the matter which then took place, the complainant didn’t say whether the appellant had actually touched her. 

1. In cross-examination, the complainant said that she didn’t talk to her brother about “these things”, but that “he knew”.  Asked how he knew, the complainant said that her brother “always goes at” the bedroom window.  She admitted that her brother would have been unable to see into the room but said, “he can hear”.  She agreed that the curtains on the window were very thick, dark and closed.  If, which may be thought a little surprising if the complainant’s version of events is correct, she and her brother did not discuss the offending conduct, she would not have been in a position to know what her brother heard, if anything, or even where he was when the offending conduct took place.  Insofar as there is evidence on the point, it would suggest that the alleged misconduct was carried out quietly and surreptitiously.

1. In my view, these matters, coupled with the complainant’s evidence discussed earlier, cast considerable doubt on the accuracy of the complainant’s account of relevant events.

1. The complainant’s evidence derives support from the telephone conversation between the appellant and the complainant’s grandfather, but the force of that evidence is somewhat eroded by the matters discussed in relation to grounds 2 and 3.

Grounds 2 and 3

1. Counsel for the appellant submitted that, putting the relevant evidence at its highest, it amounts to the appellant, who has arrived home to find his wife and children gone from the house, receiving an angry and emotionally charged and accusatory call to which he responds either “yes” or “yeah whatever” before the abrupt termination of the phone call.  The evidence was not of sufficient probative weight or reliability to justify its admission.

1. The evidence was admissible, being an accused person’s reaction or reply to an allegation of wrongdoing which was capable of being regarded as an admission.[4] 

   [4]The King v Grills (1910) 11 CLR 400 at 408, 409 and 422; Woon v The Queen (1964) 109 CLR 529 at 537, 539 and 541.

1. No objection was taken to the admission of the relevant evidence and thus “…it cannot be said that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law.  The question then must be whether ‘on any ground whatsoever there was a miscarriage of justice’.”[5]  The admission of the subject evidence did not occasion a miscarriage of justice.  The evidence was in short compass and given clearly.  The complainant’s grandfather made a note of the conversation the following day and it was not suggested that he had not attempted to properly record the content of the conversation or that he did not try to give an honest account of it in his oral evidence.  The fact that, as the witness candidly acknowledged, he was angry and not particularly interested in anything the appellant had to say was a matter of obvious relevance to the jury’s assessment.  But there is no reason to suppose that the jury did not take this into account.

   [5]R v Soma (2003) 212 CLR 299 at 304.

1. The trial judge dealt with this evidence at length and with considerable care so that it could not be doubted that in deciding the issue, the jury was alert to all relevant considerations.  Grounds 2 and 3 were not made out.

Conclusion

1. Having had regard to the whole of the evidence, and after allowing for the jury’s advantage in seeing and hearing the evidence, I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[6]

   [6]See MFA v The Queen (2002) 213 CLR 606 at 623, 624; SKA v The Queen [2011] HCA 13.

1. It would not be appropriate to order a retrial.  The difficulties arising from the evidence of the complainant and her brother identified above would also arise on any retrial.

1. For the above reasons, I would order that:

(a)           the appeal be allowed;

(b)          the conviction be set aside;

(c)           a verdict of acquittal be entered.

1. FRASER JA:  I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour. 

1. CHESTERMAN JA:  I agree with the orders proposed by Muir JA for the reasons given by his Honour.