R v T

[1996] QCA 463

IN THE COURT OF APPEAL	[1996] QCA 463
SUPREME COURT OF QUEENSLAND	C.A. No. 204 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. de Jersey J.
[R. v. T]

T H E Q U E E N

v.

T

Appellant

FITZGERALD P.

PINCUS J.A. DE JERSEY J.

Judgment delivered 1/11/1996

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT, PINCUS J.A. AND DE JERSEY J. CONCURRING IN THEIR REASONS AND AS TO THE ORDER MADE; FITZGERALD P. DISSENTING.

Appeal against conviction is dismissed.

Application for leave to appeal against sentence is refused.

CATCHWORDS:	CONVICTION - attempted incest (x 1), indecent dealing ( x 2) - all offences allegedly committed in a single incident upon the appellant’s grand-daughter - whether the convictions unsafe because of inconsistencies in the complainant’s evidence - whether trial was unfair - whether the trial judge made mistakes adverse to the appellant - whether jury acting rationally must have convicted irrespective of any error - admissibility of evidence, including evidence of fresh complaint - whether verdicts of acquittal should be entered/new trial ordered.
ss. 616(1), 668E(1A) Criminal Code (Qld.) s. 93A Evidence Act 1977 R. v. Barbeler [1977] Qd.R. 80 R. v. C (C.A. 116/95, unreported, 4 August 1995) R. v. Cumner (C.A. 108/94, unreported, 28 July 1994) O’Neill (C.A. 435/94, unreported, 4 August 1995) Pfennig v. R. (1995) 182 C.L.R. 461 Robinson (C.A. 1/95, unreported, 4 August 1995) Stretton and McCallion (1988) 86 Crim.App.R. 7 Wyatt (1990) Crim.L.R. 343
SENTENCE - “one off” occurrence - 49 year old appellant with no prior conviction - no remorse - gross abuse of trust - complainant cross-examined at trial and committal - whether a wholly suspended sentence should have been imposed rather than three year and two year terms of imprisonment to be served concurrently.
R. v. C (C.A. 479 and 500 of 1994, unreported, 15 February 1995)
Counsel:	Mr P. Hardcastle for the appellant Mrs L. Clare for the respondent
Solicitors:	G. Brown for the appellant Queensland Director of Public Prosecutions for the respondent
Date(s) of Hearing:	28 August 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 1/11/1996

The appellant has appealed against his conviction in the District Court at Brisbane on 26 April 1996 of one offence of attempted incest with his grand-daughter and two offences of indecently dealing with her. All offences were allegedly committed in a single incident on 2 April 1995. The appellant has also applied for leave to appeal against the sentences imposed on him; he was sentenced to imprisonment for three years for attempted incest and for two years for each of the indecent dealing offences, all to be served concurrently.

In my opinion, a conclusion by this Court that the appellant was guilty of the offences is of limited relevance if the trial judge made mistakes adverse to the appellant and is of no relevance if his trial was unfair. In the former case, but not the latter, convictions are sustainable under sub-s. 668E(1A) of the Criminal Code if the jury, acting rationally, must have convicted irrespective of the error: R. v. Domican (1992) 173 C.L.R. 555, 565-566, 570-571. Sub-section 668E(1A) has no scope for operation if a trial was unfair, since an unfair criminal trial necessarily involves a substantial miscarriage of justice. I have discussed these matters in my dissenting judgment in O’Neill (C.A. 435/94, unreported, 4 August 1995). In the present case, the appellant’s contention is that his convictions could not be sustained under sub-s. 668E(1A) of the Code if there were errors in his trial which might have operated to his disadvantage. It is submitted that the quality of the prosecution evidence is not such that it could be said that the jury, acting rationally, must have convicted irrespective of any error; on the contrary, it is the quality of the prosecution evidence, and particularly the evidence of the complainant, which is relied on to demonstrate that the convictions cannot safely be allowed to stand.

Since the judgment of the other members of the Court relies on R. v. C (C.A. 116/1995, unreported, 4 August 1995), it is appropriate for me also to say at the outset that, in my opinion, the majority judgment in R. v. Cumner (C.A. 108/1994, unreported, 28 July 1994) was correct and meant what it said despite the view later expressed in C. I elaborated upon my view of such matters in R. v. Robinson (C.A. 1/1995, unreported, 4 August 1995), in which judgment was delivered on the same day as the judgment in C. I do not need to repeat what I said in Robinson, but it is appropriate that I say something of the suggestion in C that the majority opinion in Cumner is inconsistent with the purpose of s. 93A of the Evidence Act 1977.

Sub-section 616(1) of the Code makes express provision for the cross-examination of all witnesses against an accused person, and it seems to me obvious that an opportunity for effective cross-examination is intended. So far as I can discover, the Court of Criminal Appeal never doubted that cross-examination was a fundamental right: see, for example, R. v. Johnson and Edwards [No. 2] [1982] Qd.R. 555. In Robinson, I referred to other authorities to similar effect, including Whitehorn v. R. (1983) 152 C.L.R. 657; to these can be added Supetina Pty Ltd v. Lombok Pty Ltd (1984) 5 F.C.R. 439 and G.P.I. Leisure Corp. Ltd v. Herdsman Investments Pty Ltd [No. 3] (1990) 20 N.S.W.L.R. 15 and cases cited, and the decision of the High Court, on appeal from the Court of Criminal Appeal, in Wakeley and Bartling v. R. (1990) 64 A.L.J.R. 321, 325-326. Far from the Evidence Act creating any doubt as to an accused person’s right to effective cross-examination of a witness against him or her, including a child complainant, Part 2 Division 4 makes special provision concerning the mode of exercise of that right in specified circumstances; the need to avoid unfair prejudice to the accused person in the implementation of these powers was accepted by the Court of Criminal Appeal in R. v. West [1992] 1 Qd.R. 227. More generally, the Evidence Act is, in my opinion, entirely consistent with the paramount duty of a judge presiding at a criminal trial to ensure that the trial is fair to the accused, with whatever rulings on evidence and directions to the jury are needed for that purpose.

There is only one other preliminary observation which I propose to make. Regrettably, rules which are primarily intended to protect innocent persons against whom accusations are made can make it more difficult to convict persons who are guilty. If different rules are to be applied in relation to those accused of the sexual abuse of children, I consider that the law should be changed in unambiguous terms by Parliament, after community debate.[1] It is clear that, when s. 93A was inserted into the Evidence Act, it was appreciated that more substantial changes could have been made to the law, but that was not done because of “the rights of the accused person and the protection of the integrity of the criminal justice of this State”: Parliamentary Debates, 24 November 1988, pp. 1361-1362. While a child’s age and other circumstances might help to explain deficiencies in the child’s evidence and some latitude might be justified ( cf. R. v. Webster (C.A. 2/1996, unreported, 23 July 1996), similar factors must be considered in assessing the reliability of the child’s evidence, which must be scrutinised with care (R. v. Wilson (C.A. No. 355/94, unreported, 14 November 1994); cf. R. v. Muller (C.A. 58/1995, unreported, 16 June 1995)). The prosecution case against a person accused of child molestation must still be proved beyond reasonable doubt, and the problems experienced by children in giving evidence do not justify the conviction of a person accused of such an offence if the quality of the prosecution evidence makes the conviction unsafe and unsatisfactory according to orthodox standards.

[1]              For example, it would be possible to provide by statute that the omission of the accused to give evidence might be used by the jury in evaluating the child’s evidence - as quite likely already occurs in practice - provided that safeguards were established to protect accused persons in appropriate circumstances, e.g., those who might be unable to testify effectively in their own defence.

With these principles in mind, I propose to examine in some detail the facts of this case and the appellant’s submission that his convictions were unsafe and unsatisfactory.

The complainant, who was born on 17 March 1985, was aged ten years when the offences were allegedly committed and eleven years when she gave evidence at the appellant’s trial, which took place between 20 and 26 April 1995. Her parents were separated and, for approximately five years prior to April 1995, she had regular access visits with her father at the home of the appellant, her father’s father. Such a meeting occurred on Sunday, 2 April 1995, and the offences were allegedly committed on that occasion, while the complainant’s father slept in the next room. The complainant did not call out to her father and complain to him later, or when she was returned by her father to her mother later that day. The complainant’s mother said that the complainant told her that evening that she had “something to say” and had a frightened expression on her face, but the mother was busy serving a meal, and there was no material discussion with the complainant, who went normally to school on the following morning. Somewhat inconsistently, and disadvantageously for the appellant, the complainant gave as an explanation for not telling her mother or her father what had occurred that, on a previous occasion when her father had become aware that the appellant had behaved inappropriately in relation to the complainant, he had become very angry.

However, on the Monday morning, the complainant told her school teacher, Mrs Martin, that she needed help and, when asked why, said that her grandfather was “bothering her” and “wouldn’t leave her alone”. Under further questioning, the complainant told Mrs Martin that her grandfather “had been sucking on her private parts”, “had used a vibrator on her” and had “inserted a vibrator into my private parts”, and that “she’s woken up to find him in bed beside her and he was naked”. Mrs Martin stated that the complainant described the vibrator as “long”, with a “switch ... that had high and low”; further, she said that her grandfather’s “sucking on her private parts” had occurred “[a]t the weekend” and that “grandad was too heavy to push away”.

Pausing here, I agree with the other members of the Court that Mrs Martin’s evidence was correctly admitted and left to the jury as evidence which might constitute evidence of fresh complaint: cf. R. v. King (1995) 78 A.Crim.R. 53. However, while the complainant’s statements to Mrs Martin support the counts of indecent dealing, they contain no mention of the offence of attempted incest; Mrs Martin’s evidence was that the complainant did not mention the appellant’s penis.

A medical examination of the complainant neither supported nor gave reason to doubt the complainant’s allegations.

The complainant was first interviewed by a police officer, a female constable attached to the Deception Bay Juvenile Aid Bureau, later that week, on Thursday, 6 April 1995; the interview was conducted at the Deception Bay Police Station in the presence of “Mary-Ann”, an officer of the Department of Family Services, and was recorded. After appropriate preliminary discussion, the complainant spoke about her access visits to her father, and the following questions and answers occurred. (The “unidentified speaker” is the officer from the Department of Family Services.)

“CONST EGAN: And when you go to stay with dad, whereabouts do you stay?--

In grandad’s house most of the time.

And what’s that like there?-- Very, very bad.
Yeah, why is that?-- Because grandad puts his private part into me and uses a
vibrator on me.

UNIDENTIFIED SPEAKER: When did - when did that happen, K?-- Sunday, about 4 o’clock.

And where were you?-- In the lounge room.

CONST EGAN: Okay, was anyone else home?-- Yeah, dad was at home but he was asleep.

Whereabouts was he asleep?-- In the back room where I normally sleep.

Okay, can you tell me what happened in the lounge room then?-- He done -all grandad done was put his private part in and used a vagina - not use a vagina, a vibrator.

UNIDENTIFIED SPEAKER: Where, where were you, K, and what were you doing?-- I was sitting down on the lounge watching cartoons.

And can you tell me what happened next?-- I don’t know, the vibrator come in then and I tried to push away from grandad but I couldn’t get away from him ‘cause he was just like holding it there and I couldn’t move or anything like that.

So you were sitting on the couch, sitting on the lounge and watching TV and grandad was there, was he?-- Yeah.

And where was he?-- he was sitting up there ‘cause he ----
All right, way you were sitting there where you are, where would grandad be
sitting?-- About say near the door.

Right. And then what happened?-- He took the vibrator out and put his private part into me and I tried to move away but I couldn’t move away just like when he had put the vibrator in my private part.

Did grandad say anything?-- He said, ‘Don’t tell anyone, this is our little secret.’
And then I tried to keep pushing away and I still couldn’t move at all.

CONST EGAN: Why couldn’t you move?-- He - he was holding one -his - my legs and he was also sitting on me most of the time.

How was he holding your legs?-- Just like back on the lounge like that so I couldn’t move, and they were open like that.

And when you say he was sitting on you, how was he sitting on you?-- With his
private part here and his bottom here.
So was he facing you?-- Mmm mmm
...

CONST EGAN: Oaky, and did you having anything else on besides your top and your baggy shorts?-- Mmm, no. I had underpants on though.

Did you?-- And what grandad, what did he have on?-- I’m not sure, I can’t remember.

...

CONST EGAN: ... How long after you come home did dad go and have a sleep?- - Mainly straight away, about 3 o’clock that was and at 4.00 he done - used his private part and a vibrator.

So dad went and had a sleep at about 3 o’clock. Okay, what did you do at about 3 o’clock?-- I was just sitting down at the TV watching the cartoons like at 4 o’clock.

...

CONST EGAN: So, dad went and had a sleep and you watched cartoons and where did grandad go when you first got home?-- He was sitting - oh, he was sitting at the end of the lounge.

So is it a big lounge, is it?-- Yeah, it’s like - it goes up to the edge there and then
we would come round to here.
UNIDENTIFIED SPEAKER: Right.

CONST EGAN: So grandad was sitting on the - the same lounge as you, was he? Right. Okay. And how long was he sitting on the - on - away from you before he come and sat next to you?- Not sure.

Mmm mmm?-- About 3 o’clock, something like that. No, not 3 o’clock, I mean
‘cause dad went to sleep then. About one hour after that - something.

So you sat from about 3 o’clock to 4 o’clock watching cartoons? Okay, and where was grandad during that time?-- Well, still sitting at the end, then he went into - into his room and got the vibrator out.

Okay. Did you see him go into his room?-- Yeah, ‘cause I got up to go to the toilet and then I came back in and he had the vibrator with him.

And where was he sitting when you come back in?-- Oh, he was sitting right here; say, about there.

Mmm mmm?-- And then I came and sit here and he moved over closer.

And did he say anything when he did that?-- No.

Okay. And you say that he had a vibrator?-- Yeah.

Okay. Can you help me - can you describe to me what a vibrator is or what it looked like?-- It looked like - it was white and when he turned it on it vibrated sort of thing.

And what did it look like it was made out of?-- Plastic mostly, something like that. I don’t know.

All right, so where - where did grandad have the vibrator when he was sitting a little way from you?-- Just - he was holding it in his hand.

Okay, and when he was doing that, was it on or off?-- Off.

And did he say anything to you when he was holding it? Did you say anything?-- Um, no, all I - I just sat down again and - oh, this show was on. I don’t know what it was called though. Something, I don’t know.

So how long did grandad stay there holding the vibrator?-- About a minute or so.

And then what did he do?-- He put the vibrator in my private part.

UNIDENTIFIED SPEAKER: Do you know another name for private part, K?--
Yeah, vagina, you already told me.
Right?-- (Inaudible)

CONST EGAN: And how did get to your vagina?-- I don’t know, he just pulled my legs apart and I tried to close them, but - and I couldn’t and he was holding my legs like that so I couldn’t move them at all.

And so how did he pull your legs apart?-- I was just sitting like this, really, really loose and then he goes like that so my legs were right apart and then I started trying to move them but I couldn’t ‘cause he was holding them.

Okay, and what was he holding them with?-- With his hand, just pushing them back onto the lounge so I couldn’t move them at all.

Okay, and how many hands was he holding your legs with?-- Just going like that and he had one hand here and one hand here and he had one of his - he was going like - back like that with his foot.

So he had one hand on your leg?-- Yeah.

And one - one foot wrapped around your leg?-- Yeah.

Okay, and where was the other hand?-- Holding the vibrator.

And where was that?-- Here.

Okay, so what happened after that?-- He took the vibrator out and put his private part in.

How did he get the vibrator - where did he put the vibrator into?-- Here, into my private part.

And how did he get it into your private part?-- I was - I don’t know, he was just holding my leg like that and he put it in.

UNIDENTIFIED SPEAKER: Did it hurt you?-- Yes, a little bit.

CONST EGAN: Okay. Do you know what grandad was wearing at that stage?--
No, I can’t remember.

UNIDENTIFIED SPEAKER: Did he have clothes on?-- Yeah, he had shorts and this - I don’t know what colour the shorts were, but he had shorts on and a T- shirt, that’s all I know.

When you say he put his private part in, do you know another name for that?--

Only -------

It’s okay, you can say it?-- No, I don’t like saying it though.
It's really important for - for you to have-----?-- Penis or a dick.

Right, that's really good, yeah. It's okay, you can say things like that here, okay, because we talk to lots of children like this, that's okay.

CONST EGAN: When - when grandad was holding the vibrator to put the vibrator in, you said - you told me before that you had some underpants on. Can you tell me what happened to your underpants?-- He took them off.

Okay, and how did he do that?-- I was just right back like this and then I stood up to go - go downstairs to play with the dog and he took them off and then he pushed me back down, so I sat down again.

And how did he take them off, what did he use to take them off?-- His hand.

Did he take anything else off with him - with you, besides your underpants?-- Yeah, and my shorts. He didn't take them right off, he just pulled them down.

UNIDENTIFIED SPEAKER: Where were they on you, can you just show us where they were?-- Just about there.

About there on you, mmm, mmm.
CONST EGAN: Okay. So when did you - when did you stand up to go
downstairs?-- I don't know, bit after 4 o’clock, after the vibrator. I stood up and
then he pulled down and he pushed me back down so I sat down.

Okay. At that stage had - before you stood up had grandad put the vibrator into your private part, before then?-- No, not really, no.

Okay. So you stood up and he pulled down your shorts and your underpants?-- Yeah, and he put the vibrator in and after five minutes with the vibrator he put his private part in.

Did he say anything when he put the - put the vibrator into your private part?--- No, all he mainly said was when I went to say goodbye to him 'cause dad was taking me home, he said, ‘Don't tell anyone this is our little secret.’ And that's all he said, that's all he said.

Okay, so he kept - so how long did he keep the vibrator in for?-- Five minutes.

Okay, and when he pulled the vibrator out, okay, what did he do then?-- He put his private - his penis into my vagina.

And how did he get to do that?-- The same way he did with the thingo, only that he was sitting on my legs like that, really, really close to me.

Okay, and can you just describe to me where - how he was sitting again?-- He was facing me and his bottom was here and he had his - like he was - his bottom was here.

Mmm mmm?-- About - around here somewhere and his private - his penis was in my vagina.

And did anything happen when his penis was in your vagina?-- It hurt a little bit.

And like he put - he put his penis into your vagina. Did he do anything with his penis when it was in your vagina?-- He just sat there.

So, did he move? What about when the vibrator was in your vagina, was it on or off?-- On. On high.

And did he do anything with the vagina - with the vibrator when it was in your vagina?-- It wasn’t actually in my vagina, it was - he was just holding it right - right - really, really tightly up against it.

When you say really tightly up against it, how did you know it was really tightly up against it?-- 'Cause he was pushing and it was hurting, you know, up here where that bone is.

Okay, so the vibrator wasn't actually in your vagina? Okay. What about dad's penis - grandad's penis?-- It - he put it in just a little way, but - not very far, just like - you know where the hole is, that was just like touching in, sort of thing.

Do you remember seeing grandad's penis?-- Yeah.

Can you describe it to me what it looked like? I know it's hard?-- It had like purple stuff going down through in - in the bit and a round circle around the top where - you know - you know where the hole is - near the hole, down a little bit further there was a round thing.

Okay, and what did it look like, was it like - was it big or small or hard or soft or-----?-- It was - it was about that big .

Mmm mmm?-- And it was soft and hard, sort of type. Sort of like softish, hard.
Up the top it was really, really hard, and down the bottom it was soft.

And you said that he kept the vibrator there for about five minutes. How long do you think he kept his penis there?-- About 20 minutes.

And you say that you saw dad's penis - grandad's penis, sorry, you saw grandad's penis. Whereabouts did you see it from, like - if you can recall like - did - you know, with regards to his wearing shorts?-- Yeah, he took his shorts off.

Did he have anything underneath his shorts? (Inaudible) When did he take his shorts off?-- About - before he put his - after he took the vibrator out of - near my private part, he pulled them down and he put his penis near my - in my - near my private part.”

Pausing again, apart from any internal inconsistencies, the complainant’s initial account on 6 April was markedly different from what she had told her teacher three days earlier; there was no reference to the appellant “sucking ... her private parts”, but on some versions of what she said the allegation was added that he had committed incest.

Later the same day, Thursday, 6 April 1995, the complainant was further interviewed, and again I will set out the material questions and answers. During the interval, which it seems was brief, there was obviously some unrecorded discussion of the complainant’s allegations against the appellant. According to what was recorded, the first question was asked by the police officer as follows:

“Did anyone tell you to tell - like, did we say to you to tell us anything at all?--

No.

Okay. All right.

UNIDENTIFIED SPEAKER: I think that what I said to you is there - there was - I thought there was one thing that you told your teacher that you hadn’t told us--- ---?-- Yeah.

When we had our talk before?-- Yeah.

And what did you say?-- My Grandad was sucking my private part.

Right. Okay. So - that’s why we put the tape in again so you can tell us about that?-- Yep.

Mmm. So when - when did that happen, K?-- After his private part ------

CONST EGAN: So, a little while before you told us that - that - that Grandad used a vibrator?-- Yeah.

And put that near your - near your private part. And he'd finished with the vibrator and he'd put his penis nearly into your - your vagina - just a little way into your vagina?-- Yeah.

Okay. After he - after he - you said he kept that there for 20 minutes. Is that right?-- Yeah.

Okay. So what happened after that?-- Grandad was sucking on my vagina.

Okay. And how did he do that?-- The same way (inaudible) that he was holding my legs open and his mouth was on my vagina.

Mmm. And whereabouts was he, exactly?-- He was kneeling down on the carpet, like that.

All right?-- But facing me.

And where was Grandad's hands at that time?-- Holding my legs apart.

What's that?-- Flying fish.

Okay. And - all right. How long - how long after he took - he took away his penis did he put his mouth there?-- After the 20 minutes was up he put his mouth in my vagina. Mouth - oh, you know what I mean, he was sucking on my vagina after he put his private part into me.

And how was he sucking on your vagina?-- With his tongue going in and then he'd put his tongue back in his mouth and he - he sucks right in like that sort of thing.

Mmm. And what - what part of your vagina was that?-- The part right down here where the hole is.

And how many times - well you said he put his tongue in and then he'd put his tongue back in his mouth. How many times did he do that?-- About six times.

And how - how long did he suck your vagina for all up?-- Not very long. About
6 minutes with that.

Okay. Just actually - before when we spoke to you about this you told us that Grandad - that he got up and he went downstairs after - after - after being with you he got up and he went downstairs?-- Yeah, just for a while and then he came back up. I forgot about the sucking on the vagina bit before.

That’s all right. When he went downstairs - okay, after he'd finished - where did you put the - the vibrator?-- I don't know.

Did he take it with him?-- Yeah, I think so. I'm not sure really.

UNIDENTIFIED SPEAKER: Do you think he took it downstairs or do you think he put it------?-- I think he took it downstairs.

CONST EGAN: Mmm. You say that - that he went downstairs for a little while and then come back up?-- Yeah.

What did you do when he come back up?-- He went into the kitchen and made a cup of tea - cup or coffee, I mean.

Mmm?-- And then he came back in and sat down and then Dad woke up a while after that and Dad said - asked Grandad if he could go and get Ace Ventura and I went with Grandad and I asked Grandad if we could get Jaws 3 out as well as Ace Ventura.

Mmm. Did anything else happen that you want to tell us about?-- That's it.

All right. How did you feel about Grandad doing that to you?-- Not very happy.
Very, very unhappy, actually.

Mmm?-- I was really, really happy before he actually done it but after that I didn’t feel very happy at all.

And when he was - when he was - when he had his mouth on your vagina - he was sucking on your vagina, how did you feel then, like-----?-- Very, very, bad, sort of (inaudible). As if I had done something wrong to make Grandad do it.

Like - what I mean is like was it sore, or hurting, or anything like that?-- It was a little bit sore after he finished.

Mmm. All right. Okay - you know before I - I asked you when we last spoke to you about what was the truth and what was a lie and all that sort of thing?-- Mmm.

Okay? Do you remember I asked you if you knew what a lie was and what the truth was?-- Yep.

Okay? This stuff that we've just talked about this time, just now, what's that?--

It's true.

True? Okay. And nobody's told you to say these things to us?-- No.
Okay. All right. Well, thanks again (inaudible).
...”

It is not clear when the complainant next discussed what had occurred with a police officer, but it seems that she spoke to a police officer, “Beverley”, at Sandgate Police Station between Thursday, 6 and Tuesday, 11 April 1995, and again on that Tuesday; only the second interview was recorded. Again, it is desirable to set out parts of the conversation; the “unidentified officer” is Beverley, and the “unidentified speaker” is the complainant.

“UNIDENTIFIED OFFICER: ... Okay, K, do you remember when you come

down here a few days ago and you spoke to me in this room?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER.: Okay. Do you remember what you told me in that room - in this - in this room of what you told me?

UNIDENTIFIED SPEAKER: Yep.

UNIDENTIFIED OFFICER: I’ve got to just make it clear - I've got to try and clear up a few things about what you told me, okay, in relation to that. Firstly, do you - can you - can you tell me what you told me - okay, to - what we talked about last time? Do you remember what we talked about last time? Do you remember that was about?

UNIDENTIFIED SPEAKER: No.
UNIDENTIFIED OFFICER: In this room? Do you remember what - but - what
we spoke about the last time?
UNIDENTIFIED SPEAKER: Yeah, about what my Grandad did.

UNIDENTIFIED OFFICER: Mmm. Okay, one of those things that we spoke about was a vibrator. Do you remember you telling me about that?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER: Okay. Just - can you tell me how you knew it was a vibrator?

UNIDENTIFIED SPEAKER: No. The lady that came in here - I was sitting in her - on her bed and I felt something really hard sticking into my thigh-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: ------ and I took it out and I go, ‘Auntie Gail, what’s this?’ - and she goes, ‘It's my vibrator’.

UNIDENTIFIED OFFICER: Mmm. And what did you do with the vibrator then?

UNIDENTIFIED SPEAKER: She took it off me.

UNIDENTIFIED OFFICER: Okay. And can you describe that vibrator to me?

UNIDENTIFIED SPEAKER: I can’t remember - it was about two years ago.

UNIDENTIFIED OFFICER: Oh, right. And did - did that look like the vibrator that Grandad had?

UNIDENTIFIED SPEAKER: No. Nothing like it.

UNIDENTIFIED OFFICER: Okay. So how did you know that what Grandad had was a vibrator?

UNIDENTIFIED SPEAKER: Because it looked exactly like the one that Auntie

Gail had-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----in her bed.

UNIDENTIFIED OFFICER: Mmm. Okay. And - and do you know where
Grandad got the vibrator from?
UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Okay. Had you ever seen that vibrator before?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: I see. And do you know where he put when he finished?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Okay. Also, you told me last time, you were telling me about what you were wearing on that day?

UNIDENTIFIED SPEAKER: Yeah, but I forgot. I was wearing a dress-----

UNIDENTIFIED OFFICER: Were you?

UNIDENTIFIED SPEAKER: -----not shorts. Yes.

UNIDENTIFIED OFFICER: Okay. Do you remember what the dress was like?

UNIDENTIFIED SPEAKER: It was a surf dress.

UNIDENTIFIED OFFICER: Mmm. And what colour was that?

UNIDENTIFIED SPEAKER: Oh, like pink and yellow and had all flowers over it.

UNIDENTIFIED OFFICER: Mmm. Okay. When you spoke to me last time, you told me that as you got up, Grandad pulled down your shorts and your undies?

UNIDENTIFIED SPEAKER: No, he only pulled down my undies?

UNIDENTIFIED OFFICER: Did he?

UNIDENTIFIED SPEAKER: Yes.

UNIDENTIFIED OFFICER: Oh, right. Okay. And that - that night that - well, that - that morning or that afternoon that day that it happened, do you remember what time it was, roughly?

UNIDENTIFIED SPEAKER: About 4 o'clock.”

There followed a series of questions and answers aimed at ascertaining how the complainant had spent Sunday, 2 April 1995, which involved breakfast with her father and the appellant at the “RSL”. The interview continued:

“UNIDENTIFIED OFFICER: Mmm. And do you know - what did you do at the

RSL?

UNIDENTIFIED SPEAKER: We had breakfast.

UNIDENTIFIED OFFICER: Did you? And what time did you get home from the RSL, do you remember?

UNIDENTIFIED SPEAKER: Well, after 10 o'clock or before 10 o'clock actually. I don't know.

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: 'Cause it start - the - at the RSL the breakfast starts from 9.30-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----and we were down there for about an hour because Dad wasn't there-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----and we just waited for a table and then Dad turned up and before 10 o'clock, we went off - went - I don’t know where we went. We just left the RSL.

UNIDENTIFIED OFFICER: And where did you go from the RSL? Where did you go to after that?

UNIDENTIFIED SPEAKER: I don't know, I can't remember. I don’t know, I can't remember.

UNIDENTIFIED OFFICER: Okay. Do you know what time you roughly got home to Grandad's? That day?

UNIDENTIFIED SPEAKER: In the morning.

UNIDENTIFIED OFFICER: Mmm? No, no, this is after the RSL?

UNIDENTIFIED SPEAKER: Forgot. No.

UNIDENTIFIED OFFICER: Do you remember what - what did you do when you got home? Do you remember going - being - when you - what you did when you actually did get home to Grandad's?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Right.

UNIDENTIFIED SPEAKER: I know that I got out and opened the gates-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----but I can't remember.

UNIDENTIFIED OFFICER: Mmm. What's the first thing you remember watching - you told me that you were watching television, okay? Was that - what was the first thing that you remember watching on television?

UNIDENTIFIED SPEAKER: Cartoons.

UNIDENTIFIED OFFICER: Mmm. Do you remember what cartoon it was?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Okay. Do you remember what channel it was?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Okay. So that's the next thing that you can remember after the RSL, is it?

UNIDENTIFIED SPEAKER: Yep.

UNIDENTIFIED OFFICER: Watching the cartoons. Okay. And how long do you think you watched cartoons for?

UNIDENTIFIED SPEAKER: I don't know. About five minutes.

UNIDENTIFIED OFFICER: Mmm? And what happened after that?

UNIDENTIFIED SPEAKER: This show came on, I don't know what it was called.

...

UNIDENTIFIED OFFICER: And was anybody else in the house at that time?

UNIDENTIFIED SPEAKER: My dad, but Dad was in bed.

UNIDENTIFIED OFFICER: Was he? Whereabouts was he sleeping? UNIDENTIFIED SPEAKER: In the back room where I always sleep. UNIDENTIFIED OFFICER: Mmm. And where was Grandad?

UNIDENTIFIED SPEAKER: Sitting at the other end of the lounge.

UNIDENTIFIED OFFICER: Mmm. So when Grandad was sitting at the other end of the lounge, that’s when that TV show with the man on the motor bike was on?

UNIDENTIFIED SPEAKER: And the cartoons.

UNIDENTIFIED OFFICER: And the cartoons?

UNIDENTIFIED SPEAKER: Yep.

UNIDENTIFIED OFFICER: Okay. And what happened after that?

UNIDENTIFIED SPEAKER: Went down - no - Grandad went downstairs.

UNIDENTIFIED OFFICER: Do you know what he went downstairs for?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Mmm. And how long was Grandad downstairs for?

UNIDENTIFIED SPEAKER: About a minute or so - downstairs and straight back up.

UNIDENTIFIED OFFICER: And then what happened after that?

UNIDENTIFIED SPEAKER: He had a vibrator in his hand.

UNIDENTIFIED OFFICER: Mmm. Okay, and what happened after that then?

UNIDENTIFIED SPEAKER: Grandad put the vibrator near my private part.

UNIDENTIFIED OFFICER: Mmm. Okay. Just in relation to when he put it near your private part, okay, can you tell me how he was holding it? Like, was he holding it cross ways or upways or downways or-----?

UNIDENTIFIED SPEAKER: Upways. Like that.
UNIDENTIFIED OFFICER.: Mmm. Okay?
Okay. This stuff that we've just talked about this time, just now, what's that?--
It's true.
True? Okay. And nobody's told you to say these things to us?-- No.
Okay. All right. Well, thanks again (inaudible).”

Later that day, there was a further interview, the transcript of which commences as follows:

“UNIDENTIFIED SPEAKER: Or was it like that? Yeah, it was like that and then -- then he put it in my private parts. Like the vibrator was still in his hand~

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----and it was the same way up.

UNIDENTIFIED OFFICER: The same way up?

UNIDENTIFIED SPEAKER: Mmm.

UNIDENTIFIED OFFICER: So was the top of it pointing upwards or downwards or crosswards?

UNIDENTIFIED SPEAKER: Downwards.

UNIDENTIFIED OFFICER: So the top of it was pointing downwards?

UNIDENTIFIED SPEAKER: Yeah, he was holding the part where you turn it on.

UNIDENTIFIED OFFICER: Right. Okay. Have you ever seen that vibrator before?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: All right. All right. Do you remember the next thing that you watched on television after that?

UNIDENTIFIED SPEAKER: No.

UNIDENTIFIED OFFICER: Do you remember when you had lunch that day?

UNIDENTIFIED SPEAKER: At the usual time, about 12 o'clock.

UNIDENTIFIED OFFICER: Okay. Was that before or after that happened with

Grandad?

UNIDENTIFIED SPEAKER: After.

UNIDENTIFIED OFFICER: So you had lunch after you had that happen-----? UNIDENTIFIED SPEAKER: No, it was before - before, 'cause at 4 o'clock it all happened.

UNIDENTIFIED OFFICER: How do you know it was 4 o'clock?

UNIDENTIFIED SPEAKER: 'Cause I read the time.

UNIDENTIFIED OFFICER: Okay. Whereabouts was the time?

UNIDENTIFIED SPEAKER: On the video.

UNIDENTIFIED OFFICER: Okay. And what time did you get home that night?

UNIDENTIFIED SPEAKER: That night?

UNIDENTIFIED OFFICER: No, that - that day? Did you actually go home to - to Mum?

UNIDENTIFIED SPEAKER: Yeah. But I don’t know what time. Normally at 5 o’clock - before 5 o’clock I go home.

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: And just on 5 o’clock, I arrive home.

UNIDENTIFIED OFFICER: All right. And what happened this day? Did you arrive home about 5 o'clock?

UNIDENTIFIED SPEAKER: Yeah. Before 5 o’clock actually - and when I got there it was 5 o'clock-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----'cause I kept asking Dad what was the time?

...

UNIDENTIFIED OFFICER: When you had lunch, okay, do you remember what you had for lunch?

UNIDENTIFIED SPEAKER: Sandwich, oh no, no, no. Sausage roll.

UNIDENTIFIED OFFICER: Mmm. And where did you get lunch from?

UNIDENTIFIED SPEAKER: From the shop, when Grandad went to get
videos-----
UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----and then after the videos, Dad went to bed and that was about 3 o'clock on the video time.

UNIDENTIFIED OFFICER: Mmm. So when - when did - when did Grandad get - get the videos, roughly?

UNIDENTIFIED SPEAKER: Oh, just before 12 o'clock.

UNIDENTIFIED OFFICER: Just before 12? And do you know where he got them from?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER: Where did he get them from?

UNIDENTIFIED SPEAKER: Go Video, I think.

UNIDENTIFIED OFFICER: And where’s that at? UNIDENTIFIED SPEAKER: (Inaudible) Virginia. UNIDENTIFIED OFFICER: Mmm. Okay. All right. And the - in - the stuff

with Grandad, did that happen before or after the videos?

UNIDENTIFIED SPEAKER: After.

UNIDENTIFIED OFFICER: Right. Okay. And what did Dad do in the morning?

...

UNIDENTIFIED OFFICER: Mmm. How did you get home from the RSL?

UNIDENTIFIED SPEAKER: Dad's car. Dad took us. Dad drove over to

Grandad's house.

UNIDENTIFIED OFFICER: That's from the RSL, was it?

UNIDENTIFIED SPEAKER: From the RSL, yeah.

UNIDENTIFIED OFFICER: Yep. So was that still in the morning?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER: Okay?

UNIDENTIFIED SPEAKER: About 9.02-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----about that time.

UNIDENTIFIED OFFICER: And what happened after you - you got back to the
- you don’t remember what you did when you got home then?

UNIDENTIFIED SPEAKER: No. No. I know that I was running up and down the house with the dog-----

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: -----but then I stopped that. Oh, yeah - I was playing teachers in the dart room.

UNIDENTIFIED OFFICER: Where's the dart room?

UNIDENTIFIED SPEAKER: Downstairs

UNIDENTIFIED OFFICER: Mmm. Okay. What, how long were you - when - been were you playing teachers?

UNIDENTIFIED SPEAKER: After the RSL.

UNIDENTIFIED OFFICER: And how long did you play teachers for?

UNIDENTIFIED SPEAKER: An hour, half an hour - something like that.

(Inaudible)

UNIDENTIFIED OFFICER: Do you?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER: Okay. Just one - a couple of more - what did you do after you played teachers?

UNIDENTIFIED SPEAKER: I went upstairs, I think.

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: I don't know, I can't remember. I think I went upstairs (inaudible) - no, I went upstairs, yeah.

UNIDENTIFIED OFFICER: And what did you do upstairs?

UNIDENTIFIED SPEAKER: Sat down.

UNIDENTIFIED OFFICER: Whereabouts?

UNIDENTIFIED SPEAKER: On the couch.

UNIDENTIFIED OFFICER: And what did you do on the couch then?

UNIDENTIFIED SPEAKER: (Inaudible) I was just sitting down, watching TV.

Grandad had the football on that he taped.

UNIDENTIFIED OFFICER: Oh, right?
UNIDENTIFIED SPEAKER: He watches the football when he tapes it.

UNIDENTIFIED OFFICER: Okay. So what did you do after - how long did you watch football for?

UNIDENTIFIED SPEAKER: Oh, for - I don't know. I only know it was the same - as long as a real football match.

UNIDENTIFIED OFFICER: Mmm? And do you remember what you did after the football?

UNIDENTIFIED SPEAKER: No. No.

UNIDENTIFIED OFFICER: So how long, do you think, after the - what, from when you watched football to lunch it was? How long was that?

UNIDENTIFIED SPEAKER: About a quarter of an hour.

UNIDENTIFIED OFFICER: Mmm?

UNIDENTIFIED SPEAKER: Something like that. I don't know.

UNIDENTIFIED OFFICER: Okay. All right. So - I think you're pretty keen to get out of here, aren't you?

UNIDENTIFIED SPEAKER: Yeah.

UNIDENTIFIED OFFICER: Okay then. Well, thank you for talking to me again.

UNIDENTIFIED SPEAKER: Yeah, (inaudible).

UNIDENTIFIED OFFICER: Is there anything else you want to say - about - you know? Is what you've told me here today been the truth?

UNIDENTIFIED SPEAKER: Yes.
UNIDENTIFIED OFFICER: Okay, you know the difference the truth and a lie?
UNIDENTIFIED SPEAKER: Yes.
INTERVIEW CONCLUDED”

I do not propose to discuss the detail of the complainant’s statements to her teacher and police officers at this point. However, it should be noted that, within nine days of the alleged offences, the complainant had given differing versions of aspects of the appellant’s alleged misconduct.

Before this Court, the prosecution relied on the complainant’s evidence at the appellant’s trial that what she had said in her police interviews was true; however, that overlooks the indisputable fact that she said different things at different times. Further, at trial, while she could recall the occasion of the alleged offences, she said that the offences occurred in the morning and could remember nothing more than that her grandfather removed her pants and sat on her with his penis “near my private but not actually touching”. The following summary by the appellant of the complainant’s oral evidence at trial was not disputed by the prosecution:

“The complainant state[d] that she ... had watched television, and in particular cartoons. ... She stated that her father was asleep and that he was in the spare room ... . She herself was situated on the lounge. She says that her grandma was at work ... . She did not know where her grandfather was. She states that by the time her father awoke she was watching football at that stage and this was still in the morning ... . She did not recall whether she had lunch, but she did recall that her grandfather was with her watching football. She states that she was watching the cartoons at the time her grandfather came into the room ... She however stated that she did not know anything particular about the cartoons.

When asked to describe what happened between herself and her grandfather she states ‘Well I can't actually remember what fully happened but I do know some of what happened’. ... She gave evidence that she was laying on the lounge and she went to sit up and her grandfather was moving closer and then he just sat on me and put his private near mine ... . She states that she was in her pyjamas whilst watching the cartoons but was unable to say what sort of pyjamas they were. She could not remember what her grandfather was wearing. She was unable to describe what her grandfather's penis looked like but indicated by way of size 8-10 inches in length in the old measurement ... She was asked ‘Now did you actually feel his penis?-- No.

Did any part of your body feel his penis?-- No.
Did you know whether it was hard or soft?-- No.
Where abouts did he place it - where about - what did he do with his penis K?--
he put near my private parts but wasn't actually touching it’ ...

She went on to indicate that her pyjamas had been taken off by her grandfather and that she had told him not to do it. She indicated that she was sitting in the same manner as she was sitting in the Court when he did this to her ... . She went on to say that when he put his penis near her vagina and that he did nothing else ... . And further that his penis did not touch any part of her body at all. She was unable to say how long it was that he sat there ... . She gave no further evidence of any other activity between herself and her grandfather. She said that by the time her father had awoken she was in her surf dress and she had changed and placed her pyjamas in the dirty clothes basket ... . She went on to say that her grandfather had said ‘don't tell anybody, this is our little secret’ ... . She further indicated that when her grandmother got home, she went and helped her walk the dogs ... However, the grandmother gave evidence that at this time she was not living at that address ... .”

There are some further matters which can conveniently be mentioned at this point.

Regrettably, the prosecutor at the appellant’s trial provided the complainant with transcripts of her police interviews and told her to read them so that she would be sure of what to say when she came to court to give evidence against the appellant, a matter which only emerged during the complainant’s cross-examination.

Secondly, the prosecution adduced evidence that police found a vibrator in a wardrobe in the appellant’s bedroom - which was not objected to - and evidence from the appellant’s estranged wife of the pattern of their sexual activity during their marriage, which she said regularly included cunnilingus and/or the use of a vibrator; when both occurred, the cunnilingus preceded the use of the vibrator. That evidence, which was objected to, was led as evidence which implicated the appellant in the activity which the complainant alleged against him, as demonstrating sexual behaviour with the complainant identical or similar to that which he had previously engaged in with his wife; the prosecution described the complainant as “a sexual substitute in the absence of his wife”. I am unsure whether, or if so how, the prosecution sought before this Court to justify reception of such evidence; its contention seemed rather to be that, because the appellant’s estranged wife’s evidence was less satisfactory to the prosecution case than had been expected and hoped for, the appellant was not prejudiced. I consider such an approach totally unacceptable; in my view, an appellate court should be extremely slow to conclude that inadmissible prosecution evidence which was intended to be used by a jury to support a finding of guilt failed in its purpose, i.e., did not influence the jury against the appellant. Common sense suggests that the jury would think that, since the prosecution led the evidence and the judge admitted it, the appellant’s sexual activity with his wife - of which some jurors quite possibly disapproved - was indicative of his guilt or at least supportive of the complainant’s account of events. It is unnecessary to discuss the reasons why evidence of other offences by an accused person and “propensity” evidence is generally excluded: see, for example, Pfennig v. R. (1995) 182 C.L.R. 461. In my opinion, the evidence in question was both inadmissible and highly prejudicial to the appellant. It cannot be said “with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable”: Crofts v. R. (H.C.A., FC96/031, unreported, 10 October 1996).

It follows in my opinion that the appeal should be allowed. To my mind, there is no basis upon which it could be concluded that the jury, acting rationally, must have convicted the appellant irrespective of the error which occurred. The further question arises whether verdicts of acquittal should be entered or a new trial ordered. Different considerations apply to the offence of attempted incest and the indecent dealing offences.

The appellant’s initial complaint to her school teacher, Mrs Martin, on 3 April 1995 concerned the appellant “sucking on her private parts” and using a vibrator. No reference was made to the attempted incest or the appellant’s penis, although curiously there was mention of her waking up “to find him in bed beside her and he was naked”. The bed was never again referred to, nor was it even again suggested that the complainant had been asleep; all future accounts placed both her and the appellant on a couch, with the complainant watching television.

At the initial police interview on 6 April 1995, the complainant said that the offences occurred in the afternoon (not the morning as she said at trial), originally omitted reference to the appellant “sucking on her private parts”, but alleged that he “puts his private parts into me”, “put his private part in”, “put his private part into me”, “used his private part”, “put his private - his penis into my vagina”, “his penis was in my vagina” and “[h]e just sat there”, “he put [his penis] in just a little way - not very far, just like - you know where the hole is, that was just like touching in, sort of thing”, “he put his penis near my - in my - near my private part”, and kept his penis there for about 20 minutes.

Consistently throughout that interview, the complainant spoke of the appellant using the vibrator prior to whatever he did with his penis; he “uses a vibrator on me”, “used a ... vibrator”, “the vibrator come in then”, “put the vibrator in my private part”, “took the vibrator out and put his private part into me”, “used his private part and a vibrator”, “took the vibrator out and put his private part in ... into my private part”, “put the vibrator in and after five minutes with the vibrator he put his private part in”, the vibrator was “[o]n high”, the vibrator “wasn’t actually in my vagina, it was - he was just holding it right - right - really, really tightly up against it”, “he was pushing and it was hurting, you know, up here where that bone is”, etc.

According to what she said at that interview, the complainant was wearing a “top”, “baggy shorts” and “underpants”, and the appellant “took off” her underpants, but “didn’t [take] her shorts and underpants right off, he just pulled them down”. At first she could not remember what the appellant was wearing, but later said that “he had shorts on and a T-shirt”, and “took his shorts off”.

It should also be noted that, according to the complainant, the appellant pulled her legs “right apart” and held them so that she could not move them at all, using the hand which was not holding the vibrator and one of his legs, and sat on her legs “really close to her” when he put his penis in, or near, her vagina.

It is plain that there was a discussion between the complainant and the Family Services Department Officer - and perhaps others - prior to the first recorded interview. Apart from the complainant’s persistent reference to her and the appellant’s “private parts” - unlikely terminology for a girl her age - the following question and answer is recorded:

“UNIDENTIFIED SPEAKER: Do you know another name for private part, K?--
Yeah, vagina, you already told me.”

Further, in the interval between the two interviews on 6 April, the Department of Family Services Officer said to the complainant that she “thought that there was one thing that you told your teacher that you hadn’t told us”. It was following that that the complainant is recorded as saying that the appellant “was sucking my private part”.

In the first interview on 6 April, the complainant said that, after the appellant had his penis in or near her vagina for 20 minutes, “[h]e hopped up and pulled his pants, then he went downstairs”. However, in the second interview that day, the complainant said that it was after the appellant’s penis was “nearly into your - your vagina - just a little way into your vagina” for 20 minutes, that the appellant was “sucking on my vagina” while facing her, holding her legs apart, and “kneeling down on the carpet”. By then, the complainant’s version was, once again, that the appellant “put his private part into me”, between use of the vibrator and “sucking on my vagina for [a]bout 6 minutes”. She said that she “forgot about the sucking on the vagina bit before”.

In the subsequent interview of the complainant at Sandgate Police Station on 11 April 1995, she said that she had first encountered a vibrator in her aunt’s bed, but that that vibrator looked “nothing like” and, almost immediately afterwards, “exactly like” the vibrator the appellant had. She went on to say that she had not been wearing shorts but a “surf dress”, which was “pink and yellow and had all flowers over it”, and that the appellant “only pulled down my undies”. Initially, she said that the offences occurred at about 4 p.m., but later gave a sequence of events which had them occurring in the morning. Further, she said that the appellant “put the vibrator near my private part”.

As already stated, the second interview that day is recorded as starting as follows:

“UNIDENTIFIED SPEAKER: Or was it like that? Yeah, it was like that and
then -- then he put it in my private parts. ...”

The time of the offences was again raised, and, after stating that they happened before lunch, which she had about noon, she almost immediately afterwards said they occurred at 4 p.m.; she knew that because she “read the time ... on the video”.

Finally, the complainant’s evidence at trial had the offences occurring during the morning while she was wearing pyjamas. She could not recall what the appellant was wearing other than that he sat on her and put his penis near her vagina; “[h]e put it near my private part but that wasn’t actually touching it”. Further, she went to say that no part of his penis touched any part of her body.

In my opinion, on all of the complainant’s evidence, including that admitted under s. 93A of the Evidence Act, a reasonable jury, acting reasonably, could not convict the appellant of indecently dealing with her, and there should be a retrial of those counts: compare, for example, Webster and R. v. W (1995) 78 A.Crim.R. 383.

The position in relation to the attempt incest conviction is different. The trial judge, who expressed the opinion in the absence of the jury that they were “not likely” to find the appellant guilty on this count, told the jury that the prosecution case was that the appellant intended to have sexual intercourse with the complainant and “began to put his intention into execution by attempting to penetrate the girl’s vagina” in that he “placed his [erect] penis at the entrance to the girl’s vagina” but “did not penetrate the girl’s vagina”. That formulation proceeded on the unstated premise that, since at best for the prosecution the complainant herself did not know whether the appellant penetrated her, the jury could not be satisfied beyond reasonable doubt that he had done so.

According to R. v. Barbeler [1977] Qd.R. 80, the jury could not be satisfied that an attempt had been made although it could not be satisfied that penetration had not occurred. Assuming that to be correct in the abstract, in a case such as the present what did or did not occur is plainly material to what the appellant intended. In my opinion, on the complainant’s evidence, the jury could not have been satisfied beyond reasonable doubt that the appellant materially did more than place his erect penis near the complainant’s vagina for a period (which she said was 20 minutes) or that he intended to do more; in particular, it could not have been satisfied that he intended penetration.

In summary, therefore, in my opinion the appeal should be allowed and the convictions quashed, a verdict of acquittal entered on the attempted incest count and retrials ordered on the indecent dealing counts. I can see no reason why a third indecent dealing count could not be added based on the appellant’s alleged conduct in placing his penis near the complainant’s vagina.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 1 November 1996

I have read the reasons of the President and those of de Jersey J. I am in general agreement with the reasons given by de Jersey J., but will add some observations.

Discussions between Constable Egan and the complainant relating to the matters in issue were recorded on two video tapes, Exhibits 1 and 15, as well as on an audio tape, Exhibit 2. The impression I have gained from these exhibits is that the complainant girl performed badly when asked to estimate periods of time or to put events in their right order, but that she otherwise seemed to display such ability to recall unpleasant events and recount them as one would expect of a child just 10 years of age. The complainant appeared to answer questions, generally speaking, in a spontaneous way and it appeared to me very unlikely that she was simply attempting to recall a story which she had been taught.

The complainant, in giving what she claimed to be her recollection of events, appeared to me to be doing so honestly, albeit with mistakes, inconsistencies and inaccuracies. The defects are analysed in some detail in the reasons of the President. There were three principal activities mentioned by the complainant: use of a vibrator, the placing of the appellant’s penis in or on the complainant’s vagina, and cunnilingus. According to the recollection of the school teacher Mrs Martin, on the day after the alleged offences were committed, the complainant mentioned the first and third, but not the second. In discussions with Constable Egan on the following Thursday, recorded on Exhibit 1, it was the first and second which were mentioned, not the third; but in a further discussion on the same day, recorded only on audio tape (Exhibit 2) the complainant also spoke of the third. Then, when called at the trial, the complainant mentioned the second only, not the first or third.

The most important deficiency in the Crown case consisted in the difference between what the complainant had told the police on the Thursday after the alleged offences were committed and what she said about a year later, at the trial. The jury were reminded about this, both by counsel and the judge, and other discrepancies were also drawn to their attention. It was open to them to deduce from the girl’s evidence in court that what she had told the police on 6 April 1995 was, although not contradicted by the appellant, largely untrue; alternatively, the jury might have entertained a doubt about the truth of what was said on 6 April, because of the complainant’s evidence in court. But it is not, in my view, the law that in a situation of this kind there can be no verdict but acquittal.

It is true that the task of cross-examining created a tactical problem for the defence, but that is not to say that cross-examination must have been ineffective. Even if it were, that would not in itself necessarily make the trial unfair. In Stretton and McCallion (1988) 86 Crim.App.R. 7, the appellants were charged with sexual offences against an epileptic. She gave her evidence-in-chief and was cross-examined at some length; discrepancies appeared between the evidence she had given in chief and that given in cross-examination. While under cross-examination she became ill and fitted. Medical opinion was that it would be "medically undesirable and forensically most unfair" to have her give further evidence about the matter. The trial was completed, counsel not having even started to cross-examine the complainant about the case involving Stretton, one of the appellants. The convictions were allowed to stand, by the English Court of Criminal Appeal.

That case was followed in Wyatt (1990) Crim.L.R. 343, where the complainant in a sexual assault case, a 7 year old girl, became distressed during cross-examination and the case was adjourned for some time, after which the girl continued to be distressed and the judge decided that her evidence should go no further. Again, the conviction was allowed to stand, on appeal.

These decisions suggest that there is not an absolute rule that an accused, deprived by circumstances of a full right of cross-examination, cannot be convicted. Here, there is no question of the appellant having been deprived of any right at all. The legislature has established a special method by which evidence may be given in certain cases. As I understand the policy, this is partly because it has been found that some young children are unable to give a proper account of offences against them, speaking in the formal setting of a courtroom. It is not astonishing that in some instances, of which the present appears to be one, a child will give a much fuller and more confident account when interviewed in the way in which this complainant was interviewed, shortly after commission of the alleged offences, than she is able to give some considerable time later, in the atmosphere of a court. This does not necessarily, and did not in the present case, produce an unfair trial.

I agree with the orders of de Jersey J.

JUDGMENT - de JERSEY J

Delivered the 1st day of November 1996

The appellant appeals against his conviction in the District Court of attempted incest committed upon his 10 year old granddaughter, and 2 counts of indecently dealing with her. He was sentenced to 3 years imprisonment for the former, and 2 years for each of the latter counts, all to be served concurrently.

The offences were committed on Sunday 2 May 1995 during an access visit by the complainant to her father at the appellant's home. The appellant interfered with the complainant in the lounge room while her father slept in a bedroom.

In an interview with the police on 6 April 1995, the recording of which was admitted into evidence under s.93A of the Evidence Act, the complainant said that while she was watching television, the appellant came to her with a vibrator. She tried to push him away. He pulled her shorts down. He put the moving vibrator on, and into, her vagina - the first count of indecent dealing. He was sitting on her and holding her legs. Then he put his penis "tightly up against" her vagina, and she said that "he was pushing and it was hurting". She said that "he put it in just a little way, but not very far ... just like touching in". That was the attempted incest. Then he sucked her vagina, "with his tongue going in" - the second instance of indecent dealing.

In her oral evidence at the trial, the complainant, then 11 years old, adopted the interviews (being the interview on 6 April and another on 15 April) as true. When questioned, she said that the appellant put his penis "near (her) private part but (it) wasn't actually touching it", and could remember nothing further about the details of the interference. The appellant did not himself give evidence, or call any witness. The appellant contended that the convictions are unsafe, essentially because of inconsistencies within the complainant's evidence. These are examples of the inconsistencies to which counsel referred: whereas in the taped interviews, the complainant said that the offences occurred in the afternoon, in her oral evidence she said that they occurred in the morning; whereas in the taped interview she gave considerable detail of the appellant's treatment of her, in her oral evidence she said only that the appellant sat on her and had his penis near her (having, it was submitted, added significance because before giving her oral evidence, she had read transcripts of the taped interviews); and that in the interview on 15 April, she indicated that she was wearing different clothing from that specified in the earlier interview.

It should first be observed that the complainant's inability to remember the detail of the matter when giving oral evidence at the trial did not of itself render her evidence, which included the taped material, unreliable. See R. v. C CA116 of 1995. As to the inconsistencies within her various accounts, illustrated above, they did indicate some degree of confusion, but in relation to matters of what might be considered peripheral detail. Those inconsistencies were explicable by her age, the passage of time, and the relative insignificance of the subject matter. The learned trial judge properly directed the jury in relation to inconsistencies.

There were, on the other hand, a number of features which combined to lend credibility to the complainant's account: sophisticated concepts of sexual activity were expressed in childish terms; a vibrator was found at the appellant's house, and there was no suggestion that the complainant would have known of its existence; and there was no reason on the evidence why the complainant would have been inclined to make false accusations against her grandfather.

It was open to the jury to be satisfied of the truth of the complainant's allegations beyond reasonable doubt notwithstanding those inconsistencies, and that ground of appeal was not established.

The appellant also challenged the learned judge's admission of evidence of the locating of a vibrator at the appellant's house, on the basis that it lacked probative value. The vibrator was found in a concealed position in a wardrobe in the master bedroom. Given the nature of the allegations, the fact of the appellant's possession of a vibrator at the house was probative. Significantly also, there was no application to exclude the evidence. The learned judge went on to rule that the evidence could not be corroborative. That may have been unduly favourable to the defence (R. v. Weston CA223 of 1994), because it was open to the jury to conclude that the complainant's knowledge of the vibrator stemmed from the offences, but it is not necessary to pursue that point. Counsel also pointed out that the complainant was not asked to identify the vibrator, but she had previously described it and the jury could have concluded that her description sufficiently identified the exhibit. This ground was likewise not established.

The appellant also challenged the admissibility of evidence given by the appellant's wife. The appellant and his wife separated on 15 February 1995 after 30 years together. His wife gave evidence that during their sexual activity while together, the appellant had used a vibrator on her. In my view, the Crown was entitled to establish not only that there was a vibrator at the house, but that the appellant treated it as his own - that it was his. The evidence of the wife went no further than to establish that.

The Crown had in fact sought to establish more. During argument about the admissibility of the evidence at the commencement of the trial, the Crown Prosecutor said that the wife would give evidence that the appellant customarily used the vibrator on her vagina, and then had sexual intercourse with her. He compared that sequence with the sequence described by the complainant, with the use of the vibrator preceding the activity involving the penis. The prosecutor told the learned judge that the Crown wished thereby to show that the appellant used the complainant "as a sexual substitute in the absence of his wife", performing acts in the same sequence. It was not a particularly distinctive sequence, but that aside, one would query the relevance of that comparison. If the Crown was seeking thereby to lend probability to the overall claims of the complainant, the approach would not sit well with Pfennig (1995)77 A.Crim.R.149. That is because there was a "rational view of the evidence ... consistent with the innocence of the accused" (p.165) - whereas the appellant was prepared to use a vibrator in sexual activity with his wife, it obviously did not necessarily follow that he would have been prepared to use it in sexual activity with his granddaughter. But it is not necessary to take this point further, because the evidence which was given did not go as far as that, and to the extent to which it unfolded, it was probative in the manner indicated above.

Finally, the appellant challenged the admission of the evidence of fresh complaint. That evidence was given by the complainant's teacher, to whom she complained within 24 hours of the offences. The point taken for the appellant was that the complainant could earlier have complained to her mother. The complainant returned to her mother on the afternoon after the offences. She approached the mother to complain, but did not do so. Her father (the son of the appellant) and her 9 year old cousin were also at the home that night. At the committal hearing, the complainant said that she did not then complain to her mother "because the first time it happened mum told dad and he got really angry". That related to an earlier, quite separate complaint against the appellant. That could also however explain why she chose not to complain to her mother when alone with her the following morning, preferring to approach her teacher at school, which she did. The evidence of fresh complaint was properly left to the jury, and there was no criticism of the learned judge's comprehensive direction on that aspect.

None of the grounds of appeal against conviction was established.
The application for leave to appeal against sentence was supported on the basis that because

this was a "one off occurrence" and the appellant, who was 49 years old, had no prior convictions, a wholly suspended sentence should have been imposed. In imposing 3 year and 2 year terms of imprisonment, the learned judge referred to the circumstances that the appellant was convicted after a trial, that he showed no remorse - other matters apart, the complainant was cross-examined at both committal and trial, and that as the complainant's grandfather, the appellant was guilty of "a gross abuse of trust".

The sentences which were imposed were within range and could not be described as manifestly excessive. R. v. C CA479, 500 of 1994 provides ample support for the sentences which were imposed, if it be needed. In the particular circumstances of the case, however, the sentences imposed were plainly justified.

The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.