R v TAD

[2014] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAD [2014] QCA 241

PARTIES:

R
v
TAD
(appellant)

FILE NO/S:

CA No 34 of 2014
DC No 19 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mount Isa

DELIVERED ON:

26 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2014

JUDGES:

Fraser JA and Boddice and Thomas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was tried before a jury on four counts of indecent treatment of a child, and was found guilty on counts 1 to 3 and acquitted on count 4 – where the complainant alleged the conduct of counts 1 to 3 in an initial police interview, and alleged the conduct of count 4 in a subsequent police interview – where the appellant argues the jury’s acquittal on count 4 and other inconsistencies in the evidence were such that the complainant’s evidence on counts 1 to 3 could not have been accepted as honest and reliable beyond a reasonable doubt – where the appellant argues the complainant’s conduct subsequent to some of the alleged acts of indecent treatment was not consistent with indecent treatment having had occurred – whether the verdicts of guilty were unreasonable on the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

M J Copley QC, with C J McKinnon, for the appellant
V A Loury for the respondent

SOLICITORS:

Anderson Telford Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  The appellant was tried before a jury in the District Court upon four counts of indecent treatment of a child.  He was found guilty of three counts and acquitted of the remaining count.  The sole ground of his appeal against conviction is that the verdicts are unreasonable having regard to the evidence.  That ground requires the Court to decide whether it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant was guilty.[1]

   [1]SKA v The Queen (2011) 243 CLR 400 at 408 – 409 [21] – [22].

The evidence

1. To decide whether or not the verdicts are reasonable it is necessary to consider the whole of the record, particularly the evidence in the Crown case.  (The appellant did not give or call evidence).

1. The appellant was alleged to have committed the offences against the thirteen year old complainant on 19 February 2012.  Two police officers, Constables Miller and Slater, gave evidence that, in response to a call at about 1.00 am on that date, they went to the complainant’s house and met, amongst others, the complainant, her 14 year old brother (B), and B’s 15 year old friend (C).  Constable Miller observed that the complainant was visibly upset and nervous and had apparently been crying, and Constable Slater noticed that the complainant appeared shy and introverted.  Constable Miller gave evidence that the complainant said that she had been playing games and watching TV at the appellant’s house next door; the appellant had been touching her, she had tried to get away from him, and when she sat on the couch the appellant had sat next to her, put his hands on her shoulders, and whispered in her ear (things like) whether she had had an orgasm.  Constable Slater gave similar evidence.  He said that the complainant also said that the appellant’s sons were in the room but were asleep, C was asleep, and the complainant’s 15 year old sister (D) was awake but had her back to the complainant and was watching TV.  The complainant’s father was in his house asleep at the time of the alleged offences and was woken after the police officers had arrived.  He said that the complainant was distraught, upset, nervous and shaken at that time.  He spoke to the complainant after the police left and the complainant told him that she got woken up because the appellant was touching her.  The complainant’s father said that the complainant was upset and scared and would not talk to him about it.

The complainant’s evidence

1. The complainant’s evidence comprised two recorded interviews with police (given on the afternoon of 19 February 2012 and on 13 November 2013) and her evidence at the trial, when the complainant affirmed the truth of her statements in the recorded police interviews and was cross-examined.

1. In the interview on 19 February 2012, the complainant said that on the night before the interview the complainant with her sister D, her brother B, and his friend C were at the appellant’s house and played with the appellant and his children, including the appellant’s ten or 11 year old son, E, and the appellant’s other son, F.  The complainant said that the appellant kept on wanting to hide with her but she kept avoiding him.  The appellant wanted the complainant to keep following him.  He grabbed her hand and pulled her to a hiding spot, but the complainant pulled her hand away and walked in the other direction.

1. Later they played “Murder in the Dark”.  The complainant said that she tried to hide from the appellant but he followed her everywhere and touched her on her breast.  This was in the “spare room” (also called the “rumpus room”) which had a television, trophies, and a couch.  The complainant said that the appellant “kept on coming close to me and he just like laying on beside me or just sitting beside me and he just touching me all over”; “he’d just say can I play with your… tits or see them and I’m like I don’t really know what you’re talking about and his [sic] (he’s) like it wont hurt you so he just does it and I was getting uncomfortable and was about to cry.”[2]  The complainant said that she told B and C, “I just said keep me away from [the appellant] cause he just keeps touching me” and that “they just kept me away from him… [but] he just kept on coming because it was really dark and I couldn’t see where I was going.”[3]

   [2]ARB 249.

   [3]ARB 242.

1. In response to further questions the complainant said that the appellant said to her “can I play with your… tits or see them”.  The complainant didn’t understand what the appellant meant.  The appellant said that it was fine and it wouldn’t hurt the complainant.  The appellant touched the complainant’s breasts.  The appellant kept touching and sucking her breasts: Count 1.[4]  The complainant described the appellant having pulled up her singlet and bra.  She said that E was the only person near her when it happened.  He was just lying on the couch, and she was not sure whether he would have heard what the appellant said to her.

   [4]The trial judge directed the jury that count 1 charged that the appellant sucked the complainant’s breasts.  The trial judge also gave unexceptional directions, of which no complaint was made on appeal, about how the jury should treat evidence that the appellant touched her breasts which was not charged as an offence: ARB 207 – 208.

1. In response to a question from the police officer about what happened then, the complainant referred to a subsequent occasion when she was hiding with the boys and “I just told them what he kept doing and ended up real cranky … go upstairs and just sat on the couch and he said follow me so I just sat on the couch with him…”.[5]  After mentioning that she had told her brother B and his friend C – this was apparently a reference to a subsequent disclosure – the complainant said that C was scared because “he was a witness… when he was on the couch because he woke up he saw [the appellant] move away from me real quick”; “… he got his stuff and came over to um my place and um that’s when they find out by looking through the window he saw me feeling uncomfortable and I was sitting on the couch and he just kept on … and he just touching me and everything…”.[6]  The complainant said that she said to the appellant that she was going home and she walked out, after which she told her sister and subsequently her father about the appellant touching her.  The complainant subsequently confirmed that C woke up and left after the appellant touched the complainant on her breasts by putting his hand up her singlet inside her bra. (Count 2.)

   [5]ARB 253.

   [6]ARB 253.

1. Subsequently, the complainant again referred to C waking up on the couch and seeing the appellant move away.  The complainant said that she and her brother B were sitting on the couch and B fell asleep watching a movie.  The appellant’s son E was already asleep on the couch.  The complainant was on a separate couch or chair.  The complainant said that she woke up B “and said can you … sleep with me and um so he said well I’m going to bed so I said see ya.  So I got up on the couch and then umm, [the appellant] said can I sit there with you and I’m like it’s your couch I don’t really care.”[7]  The complainant said that the appellant kept touching her breasts.  He asked the complainant what an orgasm was like.  The complainant said that she didn’t know what that was.  The appellant said that he would show her, and the complainant did not want to know about it.  The appellant was touching her breasts the same as he did before, putting his hand under her singlet and touching her on the inside of her bra.  The complainant confirmed that the appellant touched her again after C left to go back to the complainant’s place; she said that it was after C left that the appellant was talking to her about orgasm. (Count 3.) The complainant left after telling the appellant that her father would be wondering where she was and she had to go home.

   [7]ARB 256.

1. In the complainant’s second police interview, on 13 November 2013 (when the complainant was 15 years old), the complainant said that she was there because when she was watching the video of her interview from when she was 13 years old she realised that she hadn’t told the police something that happened.  The complainant said that the appellant held her hand and tried to make her touch his penis.  She said that he grabbed her hand and put it on his penis, and he tried to move her hand up and down. (Count 4.)  The appellant said it felt good or something.  The complainant said that somebody turned the lights back on and she moved away and hid with her brother and tried to hide from the appellant.  The complainant said that when she pulled her hand away she said that she was not doing that and the appellant said that was okay.  The complainant said that when the light went back on she told her brother what the appellant was trying to make her do again and her brother told her to hide with him.  (The prosecution particularised Count 4 as an allegation that the appellant had the complainant touch his penis at or about the laundry of the appellant’s house.)

1. The complainant gave pre-recorded evidence on 17 February 2014.  She agreed with defence counsel’s suggestion that nothing inappropriate had happened with the appellant when she had been playing outside the appellant’s house.  (In re-examination the complainant agreed that “it all” occurred inside the appellant’s house.)  In cross-examination the appellant said that the appellant touched her more than a few times whilst she was playing the game Murder in the Dark in the rumpus room.  When asked to recall the first time when the appellant touched her, the complainant said that, when one of the appellant’s sons was in the rumpus and the other was in a different room, the appellant kept asking her if he could feel her breasts and he tried and kept on doing it.  The complainant said that she did not want to talk to the appellant and said to him that she didn’t really know what he was talking about.  B, C and D were also hiding in the rumpus room when the complainant was hiding behind the couch with the appellant (at his request).  The appellant felt her breasts.  Someone got caught in the game and as soon as that happened the light was turned on and the complainant walked away and hid in a different spot.  The complainant did not know if anyone saw her but she was pretty sure that her brother B saw her get away from the appellant.  The complainant said that the appellant lifted up her singlet and then lifted up her bra, and felt her breasts for probably ten seconds.  When the complainant was asked whether she said anything to the appellant, she responded that she didn’t know, she didn’t care because she did not know what the appellant was talking about, she was 13 and had no idea what the appellant was thinking, and she was “frozen” and wanted to walk away.

1. The complainant said that during the Murder in the Dark game in the rumpus room, the appellant followed her to behind an armchair and hid with her there.  The appellant asked if he could touch her breasts and he also asked if he could suck her breasts.  The complainant didn’t talk to him because “I was pretty much scared”[8] and then the appellant sucked her breast.  The complainant said that she was “pretty much frozen scared”.[9]  The appellant sucked her breast for about three seconds and stopped when the game was ended by someone turning on the light.  The complainant walked away and told B and C; they were in the adjoining laundry room, where everybody had moved to hide to continue playing Murder in the Dark.

   [8]ARB 24.

   [9]ARB 24.

1. The complainant said that the appellant followed her into the laundry room and B and C “saw him do that stuff”.  The complainant said that the appellant kept on trying to touch her again but this time she wouldn’t let him.  She was positive that B and C saw the appellant “trying” to touch her because they asked her questions about it after they returned to the complainant’s home.  B and C were behind the complainant and the light was off.  When it was put to the complainant that she didn’t know what B and C actually saw, the complainant said that she knew that B saw the appellant do something because B asked her about it after they had returned home after the appellant tried to touch her again on the couch.  When the complainant was asked whether B and C were watching her when the appellant was touching her in the laundry, the complainant responded that she “never saw them, but [B] told me that he saw him do it.”[10]  In further cross-examination the complainant referred to the appellant pulling the button off his pants, taking down his zipper, and making the complainant touch his penis.  That occurred in the laundry.  The complainant agreed that the laundry was a very small room.  She said that at this time B and C were still behind her.  She said that she could not see B and C when she was facing the doorway to the rumpus room and the appellant was holding her hand on his penis.  The complainant said that happened only for two seconds because she moved her hand away.  The complainant said that she didn’t mention this incident in the first police interview because she was embarrassed and scared.

   [10]ARB 27.

1. In further cross-examination the complainant said that there were other occasions when the appellant touched her after they stopped playing Murder in the Dark.  The complainant referred to an occasion in the lounge room after she had woken her brother B and told him to go home (D had also gone home by this stage).  The appellant sat near the complainant on a couch.  C was on a separate seat and E had watched the movie for a bit and then gone to bed.  F was also in the lounge room but the complainant could not remember where he was.  The complainant said that the appellant started to try to touch her breast again while she was watching television: “[h]e full on tried to palm grab it”, underneath her clothing.  She did not tell him to stop; she was still quite frozen.  After that had gone on for about 15 seconds C woke up a bit and said that he was going back to the complainant’s place.  The appellant then moved away.

1. The complainant said that there was a second occasion when the appellant touched her while she was on the couch.  This was as soon as C left when “he also tried to go down below”, by trying to put his hand in her pants.  The complainant said that that was when she “freaked out” and “creeped out”.[11]  The complainant did not tell that to the police officer who interviewed her.  She didn’t think that she had to because the appellant had tried to “go down” but didn’t go any further down because she moved away.  The complainant told defence counsel that she just remembered this when defence counsel started questioning her; the complainant said to defence counsel “[y]ou reminded me”.

   [11]ARB 34.

1. The complainant moved to sit on the chair that C had earlier been sitting on.  She did not think the appellant would go any further.  The appellant went to bed and the complainant returned to the couch to watch the rest of the movie.  The appellant then came back and touched the complainant’s breast again underneath her clothing.  The complainant said that she’d had enough and went home.

1. The complainant agreed that she had not told the police about all of the occasions when she said that the appellant had touched her.  That was because she was scared, she was only 13, and she thought that her parents would think she was lying.

1. In re-examination about the incident in the laundry, the complainant gave evidence that it was dark in the laundry.  She also said that she didn’t know what view B and C would have if the complainant’s hand was on the appellant’s penis, but she said that B did say that he saw it.  The complainant said that she was in front of the appellant and the boys were behind the appellant.  The complainant said that when the appellant was talking to her at times when other people were in the room, the appellant was whispering at her ear.

The evidence of B and C

1. The complainant’s brother B, and B’s friend C, were interviewed by police on 19 February 2012.

1. B said that in the last two games of Murder in the Dark the complainant told him and C to keep her away from the appellant who kept touching her.  Afterwards they went upstairs and watched a movie.  B started falling asleep half way through the movie.  The complainant woke him and told him to go home if he was tired.  He went home and went to sleep.  His friend C woke him and they both went back to the appellant’s house and looked in through a window.  B saw the appellant grabbing the complainant’s arms and whispering to her.  The complainant remained quiet and shrugged her shoulders. B returned home.  When the complainant arrived home they asked her what had happened.  The complainant told them that the appellant had asked her question about having an orgasm and she had not known what to say.

1. B gave evidence on 17 February 2014, when he was 16 years old.  In cross-examination B agreed that the Murder in the Dark game was played in the rumpus room and laundry of the appellant’s house.  B hid in the rumpus room at one stage but then went to the laundry.  He saw the appellant going towards the complainant but he did not see anything else.  He could not remember whether there was an occasion when C was hiding in the laundry with B and the appellant and the complainant were also hiding in the laundry.  He agreed with a suggestion by defence counsel that if there were four people in the laundry he would know about it, but when asked if he could recall that happening at any stage he said that he could not remember.  B said that whilst he was playing the game the complainant told B and C that the appellant was touching her and B and C said that they would keep an eye on the appellant.  He did so and he did not see the appellant touch the complainant whilst B was playing the game.  When asked whether the complainant told him about the appellant touching her in the rumpus room, B said, “No.  It would be in the laundry.”

1. C said in his police interview on 19 February 2012 that in the game played outside the house the appellant joined in; at one point the appellant grabbed the complainant and showed her the best hiding spot.  C “didn’t think much of it at first.”[12]  The appellant suggested that they play Murder in the Dark.  C noticed that whenever the appellant turned off the light he’d be near the complainant and lying right next to her.  The complainant told C and B that the appellant was touching her.  The complainant had a “grin – stern on her face … like… scared inside …”[13].  The appellant was always near the complainant.  After that game they all went upstairs and sat on the couch.  C fell asleep and was woken up by the yelling of the appellant’s son F.  C saw the appellant sitting on a couch between his son E and the complainant.  C saw the appellant grabbing the complainant and saying “[i]f you ever”; C then quickly jumped up and ran out, grabbed his bag, and went next door to the complainant’s house. (Later C said that he saw the appellant quickly move away after the appellant had grabbed the complainant and said “if you ever”.) After speaking to the complainant’s brother B and the complainant’s sister D, they went next door and looked through a window of the appellant’s house.  Upon returning to the complainant’s house, the complainant walked through the door and B said to her, “[the appellant] is touching you, isn’t he?”.  The complainant replied that she did not know what they were talking about.  She then said that it was not the first time that the appellant does it; he had done it heaps of times; he tried to corner her; it was continuous.  The complainant was scared.  C said that the complainant disclosed that when they were in the lounge room watching television and the appellant was on the couch, the appellant was touching her whilst they were all looking at the TV.  C said that there were blankets everywhere.  C said that the complainant said that the appellant grabbed her “and he was going like – like, talking to me and say”?  C forgot what the complainant said.  C added that the complainant said that the appellant grabbed her on the arm and was touching her on the “rude parts”.  C then agreed that the complainant said that the appellant was “touching my…” and the complainant gestured around her chest area.  The complainant said that the appellant asked if he could “lick your tits”.  She said that when she woke up in the appellant’s lounge room her breast was out and the appellant was right near her.  He then said he was not sure.

   [12]ARB 301.

   [13]ARB 303.

1. In cross-examination C agreed that it was not the appellant who suggested that everybody play Murder in the Dark.  C said that he hid in both the laundry and the rumpus room in different rounds.  He did not recall a round when C and B and the complainant and the appellant were all hiding in the laundry.  C said that the complainant was mostly hiding with the appellant, “really bunched up together …”.[14]  C repeated in cross-examination that the complainant came to C and B and told them that the appellant had been touching her; he didn’t pay particular attention to what the appellant was doing because he did not think much of it and thought the complainant was only joking.  He did notice that the complainant hid away from the appellant.  When C awoke in the lounge room and saw the appellant grabbing the complainant, holding her really close, and saying “if you ever”, the complainant had a real grin on her face.  C said in cross-examination that the complainant’s nipple was showing; he only had a glimpse and did not know if it was, and he then quickly got up and left.  In the course of further cross-examination, C said that he was not sure whether the complainant’s nipple was showing.  When the complainant returned to her home from the appellant’s place she had a smile on her face.  When the others said they knew what was going on the complainant said “what” and eventually the complainant broke down and said that the appellant had been touching her and it had been going on for a while.

   [14]ARB 67.

The evidence of D

1. The complainant’s sister D gave evidence in February 2014, when she was 18 years old.  She referred to playing games at the appellant’s house two years earlier and then watching a movie, before she went home shortly before 1.00 am.  She said that her brother B entered their house first and she went in behind him, and they went to go to bed.  Five minutes later C arrived home, and as a result of what he said D went with B and C to the appellant’s house and looked in the window.  D saw the appellant holding the complainant’s shoulders with one hand above and near her breast.  D returned home and told her father.  She then went downstairs and after a couple of minutes the complainant arrived.  The complainant was crying.  D could not remember what the complainant said to her.

1. In cross-examination D told defence counsel that she couldn’t remember anything specifically happening during the games they were playing.  She recalls seeing the appellant on the couch with the complainant in the lounge room.  She said that B went home first and she went home within minutes of B.  B subsequently agreed that she had been guessing about the length of time she had stood at the window looking into the appellant’s house.  Whereas she had estimated five minutes in evidence in chief, in cross-examination she agreed that it might have been a couple of seconds.  D agreed that she did not see the appellant touch the complainant’s breast but in a following passage of questions she appeared to say that she had seen that.  Subsequently D said she could not remember where she saw the appellant touch the complainant.  She then agreed that all of the answers she had been giving were guesses.

Consideration

1. The appellant argued that the verdicts were not reasonably open having regard in particular to the evidence concerning the “laundry incident” and the evidence that the complainant remained in the appellant’s house after her elder siblings had left and after she had suggested to her elder sibling B that he should go home.

The laundry incident (count 4)

1. The laundry incident concerned count 4, upon which the appellant was acquitted.  The appellant conceded that there was no legal inconsistency between the guilty verdicts and the acquittal on count 4 because there was the logical explanation that the complainant did not mention her account upon which count 4 was based until the second police interview in November 2013.  The appellant argued, however, that the verdict of acquittal upon count 4 necessarily involved the jury in finding that they did not accept the complainant as honest and reliable beyond a reasonable doubt on that count.  It was submitted to follow that it was unreasonable to find that the complainant was honest and reliable beyond a reasonable doubt on any of the first three counts.  The appellant emphasised his argument that the complainant’s evidence about count 4 was directly contradicted by her brother B in a way which damaged the complainant’s credibility and required the jury to doubt her account on Counts 1, 2 and 3.

1. Clearly enough, B’s evidence that he did not see anything occur in the laundry did not require the jury to conclude that the complainant was untruthful in her account that the appellant put her hand on his penis whilst they were in the laundry.  The effect of B’s evidence was that he did hide in the laundry with C and that he could not remember whether or not there was an occasion when the appellant and the complainant were hiding in the laundry at the same time.  That was in no way inconsistent with the complainant’s evidence in her second police interview and in her pre-recorded evidence.  That B agreed that the laundry was a small room and that he would know if there were four people in it cannot obscure the fact that B’s evidence was simply that he could not remember whether or not those four people were in the room together at any time.  Nor did B’s evidence that he did not see anything happen in the laundry require the jury to conclude that the complainant’s credibility was damaged by her account of the events in the laundry.  Upon the complainant’s evidence, B and C were both behind the complainant and the appellant and the room was unlit.  Presumably the children were focussed upon hiding.  Furthermore, contrary to a submission for the appellant that the complainant spoke of a protracted incident it might have been very brief; in the complainant’s second police interview she first said that the appellant’s hand was on his penis for “… like I’d say 10 seconds”[15] and in her pre-recorded evidence the complainant estimated that the incident “probably only happened for two seconds because I moved my hand away”[16].  The jury were no doubt alive to the unreliability of retrospective time estimates of that kind.  The jury were not bound to conclude that B and C must have seen the incident if it occurred in the way described by the complainant.  Nor should B and C necessarily have been alerted to it by anything said by the appellant; in re-examination the complainant spoke of the appellant “whispering … at my ear” at the times when other people were in the room.[17]

   [15]ARB 275.

   [16]ARB 29.

   [17]ARB 43.

1. As to the direct contradiction for which the appellant contended, in the complainant’s second police interview she said that after the light went on she told her brother what the appellant “was trying to make me do again…”.  Because, on the complainant’s account, the appellant had previously touched her breast but he had not previously put the complainant’s hand on his penis, the word “again” in that statement suggests that the complainant did not tell B of the latter conduct.  That is consistent with B and C’s evidence of the complainant’s disclosures during the game and later.  It is also consistent with the complainant’s pre-recorded evidence that “my brother saw him do something, because my brother asked me stuff about it”;[18] the complainant explained that her brother and sister asked if the appellant had touched her, and she said that her brother “told me he saw him do it… He saw [the appellant] trying to touch me.”[19]  That is consistent because the complainant did not describe the incident charged in count 4 as touching.  She distinguished that incident from the incidents in which the appellant touched her breast; she said in relation to count 4 that the appellant “didn’t touch me, but then he decided to be a little different… pulled the button off his pants and the zipper down, so I could touch his penis.”[20]  Furthermore, the complainant did not at any point give evidence that she said to B or C words to the effect that the appellant had placed her hand on the appellant’s penis.

   [18]ARB 26.

   [19]ARB 27.

   [20]ARB 27.

1. Later in the complainant’s pre-recorded evidence in February 2014 she said that B told her that he saw “it”, which was a reference to “[the complainant’s] hand on [the appellant’s] penis”.[21]  There was an inconsistency between B saying those words and  B’s evidence that he didn’t see anything occur in the laundry[22] and that at no stage did he see the appellant touch the complainant anywhere other than the shoulders and arms.[23]  However the complainant did not attribute those words to B when she was interviewed by police about count 4, and when she gave her pre-recorded evidence she was not asked when B told her that he had seen this incident.  The jury might have resolved this inconsistency in any one of a number of a ways which were consistent with the general credibility of the complainant and the reliability of her accounts upon counts 1 – 3.  The jury might have concluded that the complainant’s memory had become less reliable on this point over the two years that had elapsed between the events and when she gave her pre-recorded evidence, or that the complainant’s evidence about what B told her was accurate and the inconsistency affected only the reliability of B’s evidence, or that the inconsistency was likely to be the product of a miscommunication between the children.  There does seem to have been real scope for miscommunications.  Bearing in mind the complainant’s immaturity at the time of the alleged offences, the evidence that B had looked through the window of the appellant’s house and seen the appellant touching the complainant in a way which B evidently thought was untoward, and that on both B’s and the complainant’s evidence she had complained to B that the appellant had touched her, the complainant may have simply misunderstood what B told her.  This inconsistency did not require the jury, acting reasonably, to harbour a doubt about the truthfulness or reliability of the complainant’s evidence upon the other counts.

   [21]ARB 42.

   [22]ARB 49.

   [23]ARB 57.

The verdicts are not inconsistent

1. I have concluded that the acquittal on count 4 did not necessarily involve any adverse reflection upon the complainant’s credibility.  Significantly, there was a distinct difference between the quality of the evidence upon count 4 and the quality of the evidence upon counts 1 – 3.  Upon the latter counts the complainant’s credibility derived support from her immediate complaint to B and C during the evening and her complaint shortly afterwards when she returned to her home.  The differing verdicts are reconcilable on the basis that the jury adopted a cautious approach to count 4 in circumstances in which the complainant did not mention the incident charged in count 4 until her second police interview and there was no other evidence which supported the complainant’s credibility in relation to that count.  The following passage from in the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen[24] is applicable in relation to the acquittal on count 4:

“Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.[25] This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.[26] Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”

[24](2002) 213 CLR 606 at 617 [34]. I have omitted citations.

[25]The trial judge gave such a direction, and that a reasonable doubt in relation to one or more counts should be taken into account in assessing the complainant’s evidence generally: ARB 205 – 206.

[26]The trial judge gave such a direction: ARB 204 – 205.

Various inconsistencies and discrepancies

1. The appellant argued that C’s evidence of what he saw when he woke up and B’s evidence of what he later saw through the window of the appellant’s house did not support the complainant’s evidence that the appellant’s touching was indecent.  That is correct in that neither B nor C claimed to have seen any conduct which was indecent, but the jury nonetheless might reasonably have regarded their evidence as being consistent with the complainant’s accounts.

1. The appellant argued that the complainant’s evidence that the appellant sucked her breast at a time when someone else might have switched on the light at any time, the complainant’s evidence that the appellant sucked her breast whilst she was beside the appellant’s son, and various inconsistencies in the complainant’s accounts (including about the number of times the appellant touched her) told against the complainant’s honesty and reliability.  There were also other, relatively minor, discrepancies in and between the witnesses’ accounts.  There is no reason to think that the jury did not take all of those matters into account.  The appellant did not contend that these matters of themselves justified the Court in setting aside the jury’s verdicts.  They were not of such significance as to suggest that it was not reasonably open to the jury to find beyond reasonable doubt that the appellant did engage in the conduct of which the complainant complained and gave evidence.

The complainant’s suggestion that her brother leave and her conduct in staying

1. The appellant placed more emphasis upon his argument that the complainant’s conduct in suggesting that her brother B leave and her conduct in staying in the appellant’s house after he and her sister had left were inconsistent with the complainant’s evidence that she had earlier endured the appellant’s indecent behaviour; the complainant’s conduct was more consistent with the appellant having irritated or annoyed the complainant when they were hiding but having stopped that annoying behaviour; and the complainant’s complaint to B and C before they watched the movie was consistent with such a scenario.  It was submitted that that complaint was not necessarily consistent with the appellant having done anything of a sexual nature.

1. In the complainant’s first police interview she said that she woke her brother B up “and said can you… sleep with me and um and so he said well I’m going to bed so I said see ya.  So I got up on the couch and then umm, [the appellant] said can I sit there with you and I’m like it’s your couch I don’t really care.”  It is not clear that the complainant then intended to convey that she had asked her brother to leave.  However in her pre-recorded evidence the complainant said that she woke B up “and told him to go home.”[27]  That was consistent with B’s statement in his police interview that the complainant woke him up and said that he should go home if he was tired.  Thus the appeal should be assessed on the basis that the complainant did suggest that B go home.

   [27]ARB 33.

1. In considering this argument it should be recalled that upon the complainant’s evidence she did not stay in the lounge room alone with the appellant; at least B, C and one of the appellant’s sons were initially in the lounge room watching television with the complainant, after B left, one of the appellant’s sons and C remained in the lounge room, and the complainant left soon after the appellant again touched her after C had left.  Furthermore, the complainant said in cross-examination that the appellant had gone to bed and she went home after he returned to the couch and touched her again.[28]  There is also substance in the respondent’s submission that there are indications in the evidence that the complainant was sexually naive: for example, her account in the first police interview suggests that at that time she did not understand what the appellant meant when he asked her about an orgasm or why he had sought to touch and suck her breasts.  The complainant’s evidence might reasonably be construed as indicating that she was annoyed and irritated by the appellant’s sexual misconduct of which she complained, but her evidence is also consistent with a view that she did not fully comprehend the seriousness of that conduct.  The complainant also spoke about being “frozen”, which supplies another explanation for what might otherwise have been regarded as the somewhat surprising conduct of the complainant in remaining in the house for as long as she did.  Furthermore, the jury had the complainant’s evidence in cross-examination that she didn’t think that the appellant would persist after she had effectively indicated that he should “piss off” (an expression she used in evidence, but not in her contemporaneous statements two years earlier at the time of the alleged offences).[29]  There was ample scope in the evidence for the jury to find a reasonable reconciliation between the complainant’s evidence upon counts 1 – 3 and the evidence of her conduct in suggesting that B go home to sleep and in staying in the appellant’s lounge room after B left and also after C subsequently left.

   [28]ARB 37.

   [29]ARB 36.

Conclusion

1. As in most cases of this kind there were some inconsistencies and discrepancies in the evidence.  It is necessary to consider each of them individually and also to consider their cumulative impact upon the Crown case.  Bearing in mind that the jury could reasonably find that the credibility of the complainant’s evidence about counts 1 – 3 was enhanced by her prompt complaints, those inconsistencies and discrepancies were not of such a nature as to justify the Court in concluding that, “even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.[30]  Upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

   [30]M v The Queen (1994) 181 CLR 487 at 494 – 495.

Proposed order

1. I would dismiss the appeal.

1. BODDICE J:  I have read the reasons of Fraser JA.  I agree with those reasons, and the proposed order.

1. THOMAS J:  I agree with the reasons of Fraser JA, and with the order proposed by his Honour.