R v SDV
[2022] QCA 220
•6 October 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v SDV [2022] QCA 220
PARTIES:
R
v
SDV
(appellant)FILE NO/S:
CA No 102 of 2022
DC No 230 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Toowoomba – Date of Conviction: 12 May 2022 (McGinness DCJ)
DELIVERED ON:
Date of Orders: 6 October 2022
Date of Publication of Reasons: 11 November 2022DELIVERED AT:
Brisbane
HEARING DATE:
6 October 2022
JUDGES:
Mullins P and Dalton JA and Boddice J
ORDERS:
Date of Orders: 6 October 2022
1. Appeal allowed.
2. Conviction set aside.
3. Direct a judgment and verdict of acquittal be entered on count 1.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was found guilty after trial of a count of indecent treatment of a child under 16, under 12 – where the appellant was found not guilty of a count of indecent treatment of a child under 16 – where the appellant was a friend of the complainant’s uncle – where count one was particularised as the appellant putting his hand under the complainant’s underwear and touching the complainant’s genitalia, whilst she was lying in bed between 20 May 2017 and 8 August 2017 – where count two concerned the appellant touching the complainant’s breast over her clothing, whilst she was seated in a parked motor vehicle – where the complainant’s reliability was the main issue at trial – where there were substantial inconsistencies in the complainant’s accounts of count one – where the inconsistencies included differing allegations of multiple acts of digital and penile penetration which the complainant accepted did not occur – where the complainant made statements to others about the appellant’s offending – where the complainant accepted she made false statements to others – where the complainant made several complaints to police involving sexual misconduct of others without making any allegations against the appellant – whether, on an assessment of the record as a whole, it was open for a jury to be satisfied beyond reasonable doubt – whether the verdict in respect of count one was unreasonable
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, appliedCOUNSEL:
C R Smith for the appellant
C W Wallis for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I joined in the making of the orders on 6 October 2022 for the reasons given by Boddice J. I also agree with the reasons and analysis of Dalton JA.
DALTON JA: I am grateful for the examination of the evidence in Boddice J’s judgment, but wish to add some analysis and reasons of my own.
The jury convicted on one count, indecent treatment, said to have occurred on, or shortly after, the complainant’s eleventh birthday, in the middle of 2017.
At the outset I acknowledge that the complainant’s life had been very difficult. She had largely spent it in the care of her grandmother, aunt, uncle and in foster care. Her mother suffered from mental health problems and was unable to care for her. These background circumstances ran through all the evidence given at trial and must surely have thrown into sharp focus the injunction to the jury not to decide matters having regard to feelings of sympathy, but on a rational analysis of the evidence.
The appellant’s trial counsel ran a case which had two broad aspects:
(a)proof of what I might term the usual type of discrepancies and inaccuracies in the complainant’s account of the offending, as well as
(b)proof that the complainant had lied to police about the offending alleged and about the appellant sexually offending against her on other occasions. Further, that she had made, to police, unsubstantiated allegations about: the appellant sexually offending against her cousin; a male neighbour sexually offending against her; an ex-boyfriend of her mother’s of sexual offending against her, and against that same man of sexual offending against other children. Allied with this, there was a formal admission at trial that on seven occasions in 2018 and 2019 the complainant was interviewed by police, sometimes in relation to allegations of sexual offending against her by other men, but made no disclosures of sexual offending against her by the appellant.
I have regard to, and respect for, the jury’s advantages in seeing and hearing the complainant.[1] I also have regard to the fact that a Robinson direction was given by the trial judge, and there was no complaint about its terms.
[1]M v The Queen (1994) 181 CLR 487, 494 and 495.
Nonetheless, having regard to all the evidence, including such explanations of her false reports as the complainant made, it seems to me that a jury acting reasonably must have had a reasonable doubt as to the reliability of the complainant’s evidence against the appellant. The Crown case relied entirely on the jury’s acceptance of the complainant’s evidence. In my view it was not reasonably open to the jury to be satisfied of her reliability beyond reasonable doubt.[2] I turn now to examine those parts of the evidence which lead me to that conclusion.
[2]Pell v The Queen (2020) 268 CLR 123, 147 [45].
Discrepancies and inaccuracies with the complainant’s account of the offending
I first deal with the matters described at [5](a) above. The complainant said that the offending happened in her grandmother’s unit where the complainant lived. It was a one bedroom unit. She shared the bedroom with her grandmother. The offending took place in the afternoon. Her grandmother had asked her to go into the bedroom and have a sleep. She was lying on the bed watching television when the appellant came into the room and positioned himself beside her on the bed. He rubbed her tummy for some time (she said 15 minutes) and then put his hand under her clothes so that he touched her clitoral and vulval regions.
The defence relied upon the unlikelihood of that occurring in a small unit when the bedroom door was open, meaning that others could see inside the bedroom, and when the complainant said she several times asked the appellant to stop, and the unit was so small that conversation in one part of it could be heard throughout the remainder of the unit. The defence relied upon the unlikelihood of the complainant’s account that she did not know how the offending ended because she fell asleep.
The defence relied upon the complainant’s contradictory account of what she was wearing at the time and the fact that some of the clothes she described would make it difficult to access her private parts as she described: “It was like a dressy thing that had pants on it, but I don’t exactly remember … I don’t know if it was, like – Bummers with it, or it had, like, the side buttons, or whatever, that you can undo … jumpsuit, I think … I honestly couldn’t remember what I was wearing. I thought I might have been wearing a dress, or a jumpsuit, or whatever you want to call it, but I don’t, honestly, remember.”
The defence relied upon the fact that the complainant’s drawing of the scene of the alleged assault given to police at interview was, on the complainant’s evidence, inaccurate as to the positioning of herself and the appellant on the bed (relevant because of the sight‑lines to the bedroom). The defence relied upon evidence that because the complainant’s grandmother was ill, there was a carer likely to have been at the unit, as well as the complainant’s grandmother, and perhaps other family members.
Were these the only matters which the appellant raised on this appeal, they would provide an insufficient basis to interfere with the verdict below. The jury might accept that the offending was brazen and that the complainant had made errors and had lapses in memory, but they might still have accepted her account based on her evidence at the trial. However, there was a great deal more evidence which the appellant relied upon at trial and on appeal. It is that described at [5](b) above. I turn to that now.
False statement by complainant about offending before the jury
In evidence-in-chief the prosecutor led from the complainant that the offending involved the appellant touching the complainant on “the top of my private parts … my vagina … on the outside … underneath my undies”.
On 31 August 2019, during an interview with Detective Sergeant Wheatley, the complainant had said that during the above‑described incident there was penetration of her vagina. The jury had listened to the interview and the relevant part was as follows:
“Okay, um, sorry I’m just tryna thing of how to, how to word this. Was, was it just on the outside of your,
No,
Wee wee or,
He was in the inside.
Inside, okay. And do you know like what was inside?
They were just like, not, I don’t know how to say it but like, it wasn’t like on top it was like, actually in there.”
Cross-examination of the complainant was as follows:
“And what you told police was that when he put his hands inside your pants, you told police that he touched your wee wee. Do you remember saying that?--- Yes.
And then you were asked:
Where was he touching you. Was it outside your wee-wee?
And you said:
No, it was inside.
Do you remember saying that?--- Yes, but it was on the outside.
Okay. And then you said:
It wasn’t on the top. It was actually in there.
Do you remember saying that?--- No. I don’t remember saying that.
Could – because that’s not true, is it, [complainant] ?--- That’s not true.
Because your evidence this morning is that – you now say that he only touched the top of your private parts, not on the inside; is that right?--- Yes.”
This was a significant false statement and there was no explanation of it offered by the complainant.
Other allegations by complainant about appellant
There are five allegations in this category.
(a) Carer takes complainant to police in February 2020
A carer who was employed to look after the complainant’s grandmother, at the time the complainant was living with her grandmother, took the complainant to police in February 2020. The complainant was interviewed by Senior Constable Fender. The carer gave the following evidence at the trial:
“Right. Okay. All right. And did [complainant] make complaint – make any disclosures to you about [appellant]?--- Yes. Many times. A lot of times.
And what did she tell you?--- She – when I first got to know her she said that – how they knew [appellant] and for the things that they were doing, that when they were all living down at [appellant’s] house that he would touch her and everything. And then the more she felt comfortable with me she said that he was sexual with her.
And did she tell you want – specifically what he – what he’d – she said he did to her?--- Curl up into his – she was in her room – or the room, wherever they were all sleeping, I don’t know. And [appellant] would turn up and get – lie with her, touch her breasts – and that was when she was a bit younger, as well. And said that [appellant] was saying, ‘… It’s okay.’ And to – and then he put his penis in – yeah. … Yeah.
Penis?--- Inside her.
Okay?--- And he also – she also mentioned that he sometimes got her to play with him.
As in - - -?--- To play with - - -
- - - play with his penis?--- - - - his penis.
Okay. So she told you that he had put his penis inside her?--- Yes.
As in her vagina?--- Yes.”
Senior Constable Fender’s evidence was that when the carer took the complainant to see him, the complainant told him that on multiple occasions between 2011 and May 2017 the appellant had raped her by putting his fingers and his penis in her vagina. These rapes had occurred in the bedroom she shared with her grandmother, at night‑time when she was sleeping.
In cross-examination the complainant first said she did not recall being taken to the police by the carer. Then she said she did remember it, but she was unsure if she “did all the talking or if [the carer] did some of the talking”. The complainant denied telling the police that rape offences occurred at night‑time when she was sleeping; she said she did not remember telling the police that. She also said she did not remember the appellant coming to her grandmother’s unit at night-time. The complainant’s evidence about this included:
“Okay. Do you remember there was a time when your grandma’s carer, [name], took you into the station to talk about [appellant]?--- Yes, but some of the stuff that she said – like, what we said to the policeman – well [indistinct] wasn’t true.
…
… And what I’m suggesting to you is that what you said to police when you went into the station with [carer] in February of 2020 – and just give me one moment. What you told police was that on multiple occasions between 2011 and the 20th of May 2017, [appellant] had raped you by putting his finger and penis inside your vagina?--- That’s not true.
Okay. Did you say that to police?--- I can’t remember if I said that to police or not.
Okay. And you told police that it had happened multiple times in the bedroom at [grandmother’s unit]. Do you remember saying that to police?--- No. I don’t remember saying that to police.
Okay. But that wouldn’t be true either, would it?--- No.
Because on your evidence, you say it only happened on one occasion in the bedroom at [grandmother’s unit], correct?--- It did.
…
Okay. Now, you agree that it’s not true that [appellant] had – the allegation that [appellant] had raped you multiple times by his finger and penis; that’s not true, is it?--- No. That is not true.”
There was cross-examination as to how the false statements came to be made to the police:
“Okay. Because when the – do you remember last month in September, you had a conference with the prosecutor and the prosecutor asked you about coming into the station and telling police that you’d been raped multiple times between 2011 and 2017 at your grandma’s house, and you said that wasn’t correct, but [carer] had said all that. And she must have been mistaken as to what happened?--- Yes.
Do you remember saying that?--- Yes, I do.
And you told – you told the prosecutor that that was all [carer] doing all the talking. Do you remember saying that?--- Yes, I do remember saying that.
That’s not true, is it? You were doing the talking to police on that occasion, correct?--- I don’t remember.”
Both the carer and SC Fender gave evidence that the complaints came from the complainant, not the carer.
(b) Handwritten letter to DS Wheatley
The complainant was interviewed by DS Wheatley on 31 August 2019. After that she wrote him a letter detailing three occasions where she and her cousin had been assaulted by the appellant:
(i)On one occasion she alleged the appellant touched her cousin and then “he put his private part inside mine, just a little bit, and then Gramsie called me and I went to her”. In cross-examination the complainant said that she did not remember writing that, and admitted that it was not true.
(ii)The complainant described being left alone at her uncle’s house with her cousin. The appellant came to the house, started to pull her cousin’s pants down, then started to pull her pants down, but then her uncle arrived home. The appellant desisted and began talking normally to her uncle. In the second interview with DS Wheatley the complainant gave this information again.
In cross-examination she was asked why those things had not been told to the police in the first interview. She said she did not have a good memory of any of these incidents “because I’ve tried to block them all out”. She said:
“And these were things that you hadn’t told police in your first interview, had you?--- No, because I didn’t really remember them, and I didn’t want to say something that I didn’t remember properly.
Okay. You didn’t remember them at the time of the first interview?--- Mmm.
And so what made you remember them at the time of the second interview, then?--- I had a dream that reminded me of it.
Okay. Your mum didn’t tell you what to say?--- I don’t know.”
(iii)The complainant said that on another occasion when she and her cousin went to the appellant’s house, the appellant touched her cousin’s bum inside her pants and then went to touch the complainant, but the complainant said, “Don’t touch me” and they both ran off. There was an incident where the appellant offered the cousin a doll if she kept quiet, which is most likely this incident.
In cross-examination the complainant said that although she was given a doll by the appellant, it had nothing to do with keeping quiet. She could not remember saying to police that the appellant had touched her cousin’s bum inside her pants, or that he tried to touch her, and they both ran away. When asked whether the incident occurred she said, “I don’t remember”. Later she was asked:
“Okay. And did you make up the – what you said happened at [the appellant’s] house with [cousin] ?--- I don’t even know.
Okay. You don’t know - - -?--- I had a bad dream about it and then I thought it was reality and it actually happened. Or it happened and I don’t remember.
Okay. And you say that you – the handwritten letter that was sent to Chris Wheatley – you say that your mother made you write that?--- Yes.
And told you what to say?--- Yes.
Even though it was about things that you now say that you had a dream about; is that right?--- I don’t remember or not remember.”
The cross-examiner explored the origin of the allegations in the handwritten letter and was told, “I don’t remember what I writ in the letter because my mum told me what to write in that letter”. She repeated that allegation at least two more times and agreed that her mother said things that were not true. Of the letter she said, “my mum wanted me to write all this stuff down on the piece of paper” and “I think that’s the letter my mum made me write”.
DS Wheatley said in cross-examination that police had interviewed the cousin and the cousin made no disclosures in relation to the appellant.
There was a formal admission that in conference with the prosecutor the complainant asked of the handwritten letter, “Is that the letter my mum wrote for me”.
The complainant’s mother denied knowing anything about a letter the complainant wrote to police and denied telling her to write allegations against the appellant in a letter. I would note, in fairness to the complainant, from what appears in the transcript, it may not be that the jury considered the mother to be a reliable witness on this or any topic.
(c) Allegation to ambulance officer
There was a formal admission made that in 2020 the complainant spoke to an ambulance officer and told her that a family friend had put his fingers and privates inside her and that had happened “up to last year”. In cross-examination the complainant denied she had told any ambulance officer that the appellant had put his fingers and his privates inside her. In later cross-examination she said she did not remember if and why she had said those things, but if she had said them, they were not correct.
(d) Allegations made to grandmother
Both the complainant’s uncle and the complainant’s grandmother gave evidence that in late 2019 the uncle brought a mattress to the grandmother’s unit. The complainant’s grandmother gave evidence that the complainant refused to sleep on it and told her that the appellant had sexually assaulted her on that mattress by putting his fingers in her vagina and by touching her breasts. This was said to have taken place at the appellant’s home.
This allegation differs from the three just discussed because there is no proof other than the grandmother’s evidence that the complaint about the appellant was made. It was a matter for the jury whether they accepted the uncle and grandmother’s evidence just referred to. If they did, there was a difficulty for the complainant’s reliability because in cross-examination she denied ever having made allegations that something happened to her on a mattress at the appellant’s house and said that such an allegation (had it been made) would have been untrue.
(e) Offending alleged in count 2
The jury acquitted the complainant on count 2 on the indictment at trial. That was a complaint that the appellant had touched her breasts. The complainant’s mother gave evidence that she saw this assault. The jury was bound to consider this alleged offending separately to that which was the subject of count 1. Nonetheless, it is safe to assume their acquittal on this count meant they had a reasonable doubt about the complainant’s evidence.
Unsubstantiated allegations against others
There are two categories of such complaints.
(a) Allegations against former neighbour
In August 2018, at a time when the complainant was living with her mother, police interviewed her in relation to allegations she made about conduct of a male neighbour at a barbeque. There was a second police interview in which she gave an additional version of events which involved sexual offending. This version was that she had gone to the neighbour’s house from the barbeque to obtain a Wi‑Fi password. She saw on his computer screen videos and photographs of herself in the bedroom and bathroom of her mother’s home. After that, her mother had told her that she (her mother) had looked in the smoke detectors in their home and she thought that there were cameras in them; “the fire alarm thing was in the middle and my mum opened it and the little black thing was pointing at the shower”.
In cross-examination the complainant’s mother denied having looked in the smoke detectors. Detective Sergeant Wheatley gave evidence that he investigated these claims and they were unsubstantiated.
(b) Allegations against her mother’s ex-boyfriend
There were four such allegations:
(i)The complainant gave evidence that her mother had told her that the ex‑boyfriend had touched her when she was two. In cross-examination her mother denied this.
(ii)In a formal police interview on 18 July 2016 the complainant told police that she had a FaceTime call with the ex-boyfriend during which he showed her his penis. In cross-examination the complainant said she could not remember this and it was not true as she never had a FaceTime call with the ex-boyfriend; it never happened.
(iii)In a police interview in October 2018 the complainant told police that she and her mother saw the ex-boyfriend in the shower with two children who were scrubbing his back. In cross-examination the complainant’s mother denied that such a thing happened.
(iv)In the same interview, the complainant said that one of the ex-boyfriend’s children told her that the ex‑boyfriend “did it in the bum” of another child.
In cross-examination Detective Sergeant Wheatley said that no charges were ever laid in relation to these allegations against the ex-boyfriend.
BODDICE J: On 12 May 2022, a jury found the appellant guilty of one count of indecent treatment of a child under 16, under 12. The jury found the appellant not guilty of a count of indecent treatment of a child under 16.
The appellant appealed his conviction on two grounds. First, that the verdict of guilty was unreasonable and could not be supported by the evidence. Second, that evidence of uncharged acts was improperly admitted on the prosecution case.
On 6 October 2022, the Court ordered the appeal be allowed; the conviction be set aside; and a judgment and verdict of acquittal be entered on count one.
These are my reasons for joining in those orders.
Background
The appellant was aged 56 at the time of the commission of the offence, and 60 at sentence. He had no prior criminal history.
The complainant was aged 11 years at the time of the commission of the offence. She was the niece of one of the appellant’s close friends.
Counts
Count one was particularised as occurring between 20 May 2017 and 8 August 2017. The appellant put his hand under the complainant’s underwear and touched her genitalia, whilst she was lying in bed.
Count two was particularised as occurring on a date unknown between 31 December 2017 and 1 January 2019. The appellant was alleged to have touched the complainant’s breast over her clothing, whilst she was seated in a parked motor vehicle.
Evidence
Complainant
The complainant gave two recorded interviews which were played to the jury, pursuant to s 93A of the Evidence Act 1977 (Qld).
In the first interview, dated 31 August 2019, the complainant told police she had come to speak to them about the appellant. The complainant said she had known the appellant since she was little. He had always been a family friend. He used to come to her grandmother’s house “all the time”. The appellant would give the grandmother items for her birds and cats.
The complainant said on one afternoon, just after her 11th birthday, the complainant went into her bedroom to lie down. Her grandmother had told her to go for a sleep because the complainant was grumpy and tired. The appellant came into the room. After watching TV for a while, he started to rub the complainant’s belly before putting his hands in her pants. He kept saying it will “be alright”.
The complainant estimated the appellant was in her room for about 15 minutes before he started rubbing her belly under her dress. The complainant said she was moving and telling him not to, but the appellant did not stop. The appellant was touching her “wee wee”, “in the inside”. The complainant did not know how long because she went to sleep. When the complainant woke up, the appellant had gone home.
The complainant said on another occasion, when she was in a motor vehicle with her mother, the appellant touched her chest. This incident happened in the middle of 2018, while she was living with her mother and before she went to foster care.
The complainant said she was sitting in the backseat, in the middle. The appellant entered the back passenger compartment via the driver’s side and started tickling the complainant. The complainant told him to stop. The appellant then put his hand on her chest. At that point, the complainant’s mother told him no and to get out of the car.
The complainant said she would refuse to see the appellant when he came over. The complainant did not like him. The complainant said she never told her grandmother about what the appellant did to her because her grandmother thinks the appellant is just this “perfect person”. The complainant had told her mother but had not told anybody else, except police.
In this first interview, the complainant also told police that when she was living in [Redacted] with her mother, another man, named AMG, told her to go into his house to get something whilst they were having a barbecue. When the complainant did so, she saw her pictures on his computer screen. The complainant told her mother who said AMG could be sending videos of the complainant in the shower and getting undressed to people online. AMG was a different person to the appellant. The complainant also told police that when she was two, her stepfather had touched her.
In a second recorded interview, on 18 June 2020, the complainant said she had come to speak to police about things that had happened when she had been left alone with her then two-year-old cousin. Her uncle, aunty and grandmother went out. The appellant came into their bedrooms. He told them to be quiet before starting to pull her cousin’s pants down. The appellant then started to pull down the complainant’s pants. At that point, the complainant’s uncle walked through the front door. The appellant stopped and left the room.
The complainant said there were no other adults in the house when the appellant came over on this occasion. The complainant said the appellant would come over quite regularly. He lived two houses away. She said when the appellant left the room, he started talking to her uncle as if nothing had happened.
The complainant said on another occasion, when she was staying with her uncle, she had gone to the appellant’s house. He had a trampoline in the backyard. The appellant’s daughter also had a dollhouse with lots of dolls. Whilst the complainant and her cousin were playing with the dolls, the appellant touched the cousin on her bottom, under her clothes. When the cousin became whingy, the appellant said he was going to touch the complainant. The complainant told him, “Don’t touch me”. She said she did not like what the appellant did to her.
The complainant said this incident occurred when the cousin was still two. It was after school. When the complainant told the appellant not to touch her, the appellant “got an angry face on”. They then went home. The complainant estimated she was aged eight or nine at that time.
The complainant said on no occasion had the appellant “had his privates out” in front of the complainant, or had the appellant ever touched any of his privates against her privates. When asked why her mother had told police the appellant had put his private against the complainant’s private, the complainant said her mother “got confused”. The complainant also said on no occasion did the appellant put his penis in her vagina.
The complainant gave evidence, which was pre-recorded and played to the jury, pursuant to s 21AK of the Act. In that evidence, the complainant said the appellant touched the top of her vagina on the outside, underneath her underpants, whilst she was in bed watching television. In respect of the incident in the car, the complainant said she was “pretty sure” her cousin was in her car seat. She was not sure if her friend had left the car at that time. Her mother was in the driver’s seat.
In cross-examination, the complainant agreed her grandmother had carers. Initially, she had one carer. When the grandmother became really sick, she had two. The complainant said she had not seen her grandmother since the grandmother started getting two carers. The complainant denied she was living at her grandmother’s house when the grandmother had two carers. The complainant accepted that one of her grandmother’s carers was named HPY.
The complainant did not accept that at the time of the incident the subject of count one, her grandmother had carers always at her house. They were there in the mornings. She did not recall them being there at night. She agreed she had said this incident occurred in the afternoon. The complainant accepted that the house was quite small; that the TV volume was not loud as she was going to have a sleep; that you could generally hear things that were being said within other parts of the house; and that when the appellant came into her bedroom, he left the door open. She agreed you could see her bed from other areas of the house if the door was open.
The complainant could not remember how long the appellant was rubbing parts of her body. She went to sleep whilst he was doing so. She could not remember if she went to sleep whilst the appellant had his hands down her pants. The complainant said she told him to stop multiple times. She agreed she told police that when he was touching her, it was inside. She agreed it was not true; the appellant only touched the top of her vagina with his fingers.
In relation to the incident the subject of count two, the complainant accepted she had written a letter and sent it to the investigating police officer. The complainant said her mother told her to write what was on that letter. She agreed that in that letter she had said the incident in the car had happened just after her 11th birthday. She accepted that was not correct. The incident in the car happened in 2018. The complainant accepted she did not tell police that her cousin was in the car at the time.
The complainant accepted that when she first spoke to police, she only told them about two incidents, one being in the bedroom and one being in the car. She accepted that when she spoke to police on a second occasion, she mentioned other things that she said had happened with the appellant. The complainant did not accept she did not have a good memory. The complainant said she tried to block the incidents involving the appellant out. She accepted she told the prosecutor, in conference, that she could not really remember the incidents she was describing in her interview with police.
The complainant accepted that in her second interview with police, she spoke about instances involving her cousin which she had not mentioned to police in her first interview. The complainant said she did not really remember them and did not want to say something she did not remember properly. The complainant said she had had a dream that had reminded her of that incident.
The complainant said she could not remember what she had written in her letter to police “because my mum told me what to write in that letter”. Her mother wanted her to write “all this stuff down on the piece of paper”. She agreed she had told the prosecutor that her mother would say things that were not true and that her mother had some mental health problems.
The complainant accepted that her grandmother’s carer, HPY, took her to talk to police. Some of “the stuff” that was said to the policemen at that time was not true. The complainant said she could not remember whether when she spoke to police on that occasion, she told police that on multiple occasions between 2011 and 2017, the appellant had raped her by putting his finger and penis inside her vagina. She agreed such allegations were not true.
The complainant also could not remember if she had told police it had happened multiple times in the bedroom of her grandmother’s house. If she did, that was not true either. She accepted it would not be true to have told police that the appellant would give her a doll to keep her quiet after he raped her; or to have told police that the rape offences would occur at night-time. On no occasion did the appellant come into her bedroom at her grandmother’s house in the night-time.
The complainant accepted that in conference with the prosecutor, she had said that HAP had told police that the complainant had been raped multiple times between 2011 and 2017 at her grandmother’s house. The complainant said HPY must have been mistaken. The complainant denied she ever told an ambulance officer that the appellant had put his fingers and his private parts inside her and that this has happened up until 2019.
The complainant accepted that in her letter to police, she had said that the appellant had put his private part “inside mine, just a little in”. Such an allegation was not true. The complainant denied making the things up. She said, “I thought they happened because I have a really bad memory of stuff that I don’t want to remember” and that, “I had a bad dream about it and then I thought it was reality and it actually happened. Or it happened and I don’t remember”.
The complainant gave further pre-recorded evidence on 16 December 2021. In that evidence, which was played to the Court pursuant to s 21AK of the Act, the complainant said that on the occasion the appellant touched her in her bedroom, there was only the complainant and her grandmother in the house. She could not remember telling a child safety officer that her cousins were there watching and giggling. The complainant accepted that would not be the truth. She also could not remember telling child safety officers that the incident in the car happened before the incident in the bedroom.
The complainant said she could not recall speaking to police when she was 10 years of age, about an incident involving her stepfather. The complainant could remember speaking to people at school about AMG in 2018. She did not, at that time, mention anything about the appellant. She agreed that the incidents she said had happened in her grandmother’s house and in the car, had already occurred by that stage.
The complainant accepted that when police spoke to her about AMG, she did not mention anything about the appellant. The complainant also accepted she had spoken to police in 2019 in relation to another matter. On that occasion, she did not mention anything about the appellant.
Other
The complainant’s mother gave evidence that on no occasion did she see the complainant alone with the appellant at the house. She did see him on one occasion in her parked car. The mother said she was in the driver’s seat; the complainant was sitting behind the driver’s seat. Her two nieces were also in the back seat. When she looked in the driver’s mirror, she noticed the appellant touch the complainant’s breasts. She heard the complainant tell him, “No, please stop it”. The mother said she dragged the appellant out of the car.
In cross-examination the complainant’s mother accepted the complainant had never made any disclosures to her about the appellant. She denied she told the complainant what to write in a letter sent to police containing allegations against the appellant.
HPY gave evidence that she was working as a disability support worker in 2017. One of her clients was the complainant’s grandmother. She cared for her from about the middle of June 2017 until 2020. The complainant’s grandmother had 24-hour support. There was always a carer with the grandmother. The carers would take shifts including a sleepover shift.
HPY said she met the complainant in about 2018.
In February 2020, HPY took the complainant to the police station in Toowoomba. The complainant spoke to police, not HPY. She was there for the complainant’s comfort and support.
HPY said the complainant made many disclosures to her about the appellant. She told HPY the appellant would lie with her and touch her breasts when she was a bit younger. The appellant would say, “It’s okay” and then he put his penis inside her. Sometimes, he got her to play with his penis.
Matthew Fender, a police officer, gave evidence that he spoke to the complainant on 18 February 2020. The complainant had come to the police station with HPY. The complainant told him that on multiple occasions between 2011 and 20 May 2017, the appellant had raped her by putting his fingers and penis inside her vagina. This had happened in her bedroom, at her grandmother’s house, in the night-time. Fender said the complainant used those words. HPY did not speak on her behalf.
The complainant’s aunty gave evidence that she was living at the complainant’s grandmother’s house with her husband and children at the time of the complainant’s 11th birthday. She described the house as a one bedroom unit. You could generally hear conversations happening in other parts of the house. When the complainant’s grandmother was living in that one-bedroom unit, she had 24-hour carers. She was one of those carers. They all worked in shifts.
She also gave evidence that when she lived two houses away from the appellant, the appellant had a trampoline in his yard. It had been dismantled because it was broken. It could not be used whatsoever. On no occasion did she leave the complainant alone at home with her children. They were only two and one year old respectively. There were also no occasions when she allowed her children or the complainant to go to the appellant’s house without an adult. At no time have either of her children made disclosures to her about anything inappropriate happening between them and the appellant.
The complainant’s uncle gave evidence that his children and the complainant had never been left alone with the appellant. He had never witnessed any sort of indecent touching between the appellant and the complainant.
The complainant’s grandmother gave evidence that when the complainant stayed in her one-bedroom unit, the complainant used the bedroom, which had a TV. On occasions when the appellant came to visit, he went into the bedroom. The complainant told her that the appellant had touched her “down below”, putting his fingers in her vagina. He had also touched “her little tiny boobies”. The complainant said it had happened on a mattress that her uncle had given her grandmother for a bed. The grandmother took the complainant to the police station.
In cross-examination, the grandmother described the one-bedroom apartment as “pretty big actually for a one-bedroom unit with housing”. She said that at that time, she did not have full-time carers. It was only after she had moved from that address that she obtained 24-hour care. The grandmother said the appellant would not ask to see the complainant. Quite often, the complainant would go to the bedroom to get away from the appellant. It was after her son dropped off a mattress in late 2019 that the complainant first made a disclosure to her about the appellant. The complainant told her something had happened on the mattress at the appellant’s house. The mattress had been the appellant’s mattress. He had given it to her son, who brought it to the grandmother’s house.
Christopher Wheatley, the investigating officer, gave evidence that he interviewed the complainant on 31 August 2019 and again on 18 June 2019. He had also received a handwritten letter from the complainant, dated 4 May 2020. It was sent from the complainant’s personal email address.
In cross-examination, Wheatley agreed he had conducted an interview with the complainant’s cousin. No disclosures were made by the cousin about any offending by the appellant. He also agreed that the complainant said she had told a police officer at [Redacted] about the appellant. His inquiries did not reveal any record of a complaint by the complainant to a police officer at [Redacted] about the appellant. The complainant did talk to police at [Redacted]. It concerned other matters, not the appellant.
Wheatley accepted that in his interview with the complainant, she spoke about another person, AMG. The complainant had spoken to police on two occasions about AMG. The first occasion was on 19 August 2018. It related to an incident at a barbecue. The complainant made no mention about going to AMG’s house and seeing secret photos of her on his computer screen. When the complainant mentioned that fact in her interview with him on 31 August 2019, police made investigations but were unable to substantiate that claim.
Police records also revealed that the complainant had been spoken to by police about different matters, including previous allegations against her step-father. No charges were laid against the step-father.
Admissions
At trial, admissions were made that police conducted interviews with the complainant on 14 August 2018, 19 August 2018, 10 September 2018, 17 September 2018, 3 October 2018, 4 May 2019 and 11 May 2019, during which no disclosures were made concerning allegations involving the appellant. Further, on 7 April 2020, the complainant spoke to an ambulance officer and said that a male family friend had put his fingers inside her and put his privates into her too, and that this had happened up until last year. There was a further admission that in a handwritten letter sent to police on 4 May 2020, the complainant wrote, “Just after [the appellant] touched me and [my cousin] together, he put his private part inside mine just a little bit.” Further, in that handwritten letter, the complainant wrote that the incident in the car happened just after her 11th birthday. Finally, it was admitted that on 9 September 2021, a prosecutor asked the complainant about the hand-written letter. After reading through it, the complainant asked, “Is this the letter my mum wrote for me?”.
Appellant’s submissions
The appellant submitted that the complainant’s reliability was the main issue at trial. A major inconsistency in her evidence was that when the complainant first complained to police, she said there was penetration of her vagina whereas in evidence, the complainant said the appellant touched her on the outside of her genitals. The complainant also agreed, under cross-examination, that she had previously given versions of events which were not true, including having told her grandmother about the offending occurring on a mattress. These inconsistencies and her proven lies rendered it not open for the jury to be satisfied beyond reasonable doubt about her credibility. Having regard to that conclusion and the fact that the jury, by their acquittal on count 2, rejected at least part of the complainant’s evidence, the jury’s verdict of guilty of Count 1 was unreasonable.
The appellant further submitted that whilst a forensic decision was made to have evidence of uncharged acts led in the prosecution case, that evidence was highly prejudicial. It involved more serious conduct, including actual penetration. Some of the uncharged acts also involved allegations of offending against the complainant’s cousin. As those uncharged acts were not led as evidence of sexual interest or relied upon by the prosecution as other discreditable conduct, that evidence was not relevant or admissible. Its admission constituted a miscarriage of justice.
Respondent’s submissions
The respondent submitted that, despite the existence of inconsistencies and discrepancies in the complainants account, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of count one. The divergent verdicts were explicable, having regard to the nature and quality of the evidence in respect of count two. Further, although there was evidence to establish that other complaints made by the complainant were untrue, the complainant was generally consistent in respect of her account of the events in respect of count one. Variations were to be expected, owing to the effluxion of time and the effect of trauma.
The respondent further submits that the evidence of uncharged acts was specifically led at the request of the defence, as part of a forensic decision. There was a rational basis for that forensic decision. That evidence was relied upon to undermine the reliability and credibility of the complainant by exposing asserted inconsistencies. No miscarriage of justice was occasioned by that positive forensic decision.
Conclusion
The determination of a ground of appeal that the verdict of a jury is unreasonable, requires the appellate court to undertake an independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of guilt of the offence, beyond reasonable doubt. In undertaking that assessment, the Court must have regard to the advantages enjoyed by the jury. It is only where the inconsistencies and discrepancies are of such a nature that even allowing for those advantages, a reasonable doubt must have existed that the verdict will be considered unreasonable.[3]
[3]Pell v The Queen (2020) 268 CLR 123.
An independent assessment of the whole of the record in the present case reveals substantial inconsistencies in the complainant’s account of the events the subject of count one. Those inconsistencies were not explicable by the effluxion of time or the effect of trauma. The inconsistencies included allegations of multiple acts of penetration, both digital and penile, which the complainant readily accepted did not in fact take place.
Those inconsistencies directly impacted upon the assessment of the complainant’s reliability. That assessment was further impacted by evidence establishing that the complainant had made multiple false statements to others. Whilst the complainant, in evidence, could not recall many of those statements, she readily conceded such statements were not true.
Further discrepancies in the complainant’s evidence, which directly impacted upon her reliability, were her acknowledgement that the letter written to the police officer on 4 May 2020 contained matter her mother told her to write; her conclusion that other aspects of her evidence involved occasions she had dreamt something she had not otherwise remembered as having taken place; and the multiple occasions in which she spoke to police about allegations of sexual misconduct by others, without ever making any allegation of sexual misconduct by the appellant.
Having regard to the inconsistencies in the complainant’s account of the events the subject of count one, in the context of admitted untruthful statements in respect of other alleged sexual conduct by the appellant and others, towards the complainant, it was not open to the jury to be satisfied beyond reasonable doubt that the complainant’s evidence, of the events the subject of count one, was reliable.
Accordingly, the verdict of guilty of count one was unreasonable. That is why at the hearing of the appeal the conviction in respect of count one was set aside and a verdict of acquittal entered.
That conclusion rendered it unnecessary to consider the remaining ground of appeal.
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