R v v

[2003] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:	R v V [2003] QCA 143
PARTIES:	R v V (appellant)
FILE NO/S:	CA No 16 of 2003 DC No 351 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING
COURT:	District Court at Cairns
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2003
JUDGES:	de Jersey CJ, White and Atkinson 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where jury acquitted appellant on seven counts of indecent dealing – where fresh complaint made but withdrawn then revived – where complainant suffered from psychiatric and psychological conditions – where inconsistencies in complainant’s account – where evidence that complainant was attention-seeking, flirtatious and manipulative – where medical evidence potentially corroborative – where pretext telephone conversation potentially corroborative – whether verdict is unsafe and unsatisfactory
Bromley v R (1986) 161 CLR 315, considered Jones v R (1997) 191 CLR 439, applied MFA v R (2002) 193 ALR 184, applied M v R (1994) 181 CLR 487, applied
COUNSEL:	K M McGinness for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ: The appellant was convicted on one count of incest and acquitted
on seven of indecent dealing. He appeals against the conviction for incest.

1. The complainant was the appellant's then 13 year old daughter. By the time of trial she was 28. The incest was allegedly committed between August and October 1987. The counts of indecent dealing, on which the appellant was acquitted, allegedly occurred over the period October 1986 to October 1987. The complainant had previously lived with the appellant and the complainant's mother, until the parents (who were married) separated in September 1986. The complainant lived permanently with the appellant from April 1987. Over the preceding year she had visited him from time to time. The counts of indecent dealing involved the appellant placing the complainant's hand on his penis and having her masturbate him to the point of ejaculation, in the course of which the appellant would sometimes touch the complainant about the vaginal area or on the breasts. The count of incest concerned an attempt at sexual intercourse with a degree of actual penetration.

2. The prosecution case included evidence from the complainant and others, evidence of fresh complaint, medical evidence and evidence of a so-called "pretext" telephone conversation between the complainant and the appellant. The defence position was that the allegations were false. Although the appellant did not himself give evidence, the prosecution tendered two records of interview containing denials of his having committed any offences against the complainant.

3. The circumstances relied on by the Crown for the incest were as follows. The appellant was watching the six o'clock news in his bedroom. The complainant entered the appellant's bedroom, perhaps to ask him a question. She was wearing her nightdress with underwear. The appellant had her sit on the bed and placed her hand on his penis, forcing her to masturbate him. The appellant then removed the complainant's pants, spread her legs apart and climbed on top of her. He endeavoured to push his penis into her vagina. This caused her pain, leading her to scream. The appellant placed his hand over her mouth and nose. He soon got off her, whereupon she went to the toilet. She noticed some blood.

Potential corroboration

1. The learned Judge left two categories of evidence for the jury's consideration as potentially corroborative. The first was medical evidence. Three days after the alleged incest, the complainant's general practitioner, Dr S, examined her at his surgery. Her primary reason for attending was earache experienced over the previous fortnight. The complainant also told the doctor she was experiencing genital irritation. The doctor noted an area of inflammation on the left side of her labia majora, five centimetres by one centimetre. He noted no sign of any entry damage to the vagina, or other damage to that region. Upon his questioning the complainant, she denied having had sexual intercourse or having suffered any sexual interference. The doctor considered the appearance of the abrasion consistent with "frictional irritation". He suggested possible "innocent" causes included "anything from a bike seat to…attempts at masturbation or something to cause the irritation".

2. The second potentially corroborative evidence was the content of the pretext telephone conversation. Although during the conversation with his daughter the appellant denied any sexual misconduct with her, he did make statements which could reasonably have been construed as carrying a sexual connotation. I offer these examples.

3. The appellant said to the complainant: "Some of your…actions when you were living with me…were a bit provocative and I didn't handle that very well." When asked by his daughter how she had been "provocative", the appellant said: "When you had a shower, you'd come out in your towel and…you'd sit on my lap and you'd…be provocative…those are the sorts of things that a young person of 12 and 13 years of age…probably does." Explaining his statement that he had not handled the provocation "very well", the appellant later said: "I didn't handle your…advances and provocativeness…sternly and strongly enough because I'm not a stern and strong person, and for that I am very, very sorry." There was also reference to "experimenting". The appellant said: "There was…an experimenting…that I sort of put a stop to…probably I was worried about influencing your acceptance of…having a relationship with boys and so on." That the "experimenting" was of an intimate character was suggested by this passage: "It was experimenting…what about all the tampon packets…and all those things that you were experimenting with?"

4. I consider the Judge was right to leave that evidence as potentially corroborative. The jury may have found it difficult to conceive that any father, proceeding innocently with his daughter, could have contemplated allowing her to sit on his lap in that way, or responded to such "experimenting" by "sort of" putting a stop to it. The statements could well have left the jury uneasy as to the propriety of his attitude towards his daughter.

Inconsistency of verdicts

1. One of the appellant's contentions is that the jury proceeded inconsistently by convicting of incest while acquitting of indecent dealing. But a sufficient, rational explanation for that differentiation (Mackenzie (1996) 190 CLR 348) rests in the medical evidence of injury to the vaginal area noted but a few days after the alleged incest. No such medical evidence of an objective flavour was available to support any of the counts of indecent dealing.

2. It should be noted, also, that the acquittals did not necessarily involve a rejection of the complainant's credibility. This is significant for an attempt to sustain the conviction for incest, which depends on the jury's accepting the complainant's credibility in her evidence on that count. For the acquittals, the jury may have simply been adopting the "cautious approach to the discharge of a heavy responsibility" referred to in MFA v R (2002) 193 ALR 184, while nevertheless not doubting the complainant's honesty.

Conviction unsafe

1. The principal ground of appeal is that the conviction is unsafe and unsatisfactory. The appellant offered the following particulars: inconsistent verdicts; lack of real fresh complaint; the complainant's failure to complain prior to and at the time of residing with the appellant; withdrawal of the original complaint and reasons; the complainant's demeanour and conversations subsequent to the withdrawal of the complaint with her counsellor; the complainant's psychiatric and psychological problems; delay in reviving the complaint; the inability to investigate the complainant's psychological/psychiatric condition prior to and at the time of trial; inability created by the delay to investigate other defence avenues; inconsistencies between the complainant's evidence and that of other witnesses, namely her mother (as to physical violence), the appellant's girlfriend Ms B (fresh complaint), the child welfare officer Ms G (withdrawal of complaint, demeanour) and the complainant's grandmother […]; lack of significant probative value in the medical evidence; and prejudicial effect of the evidence of physical violence by the appellant upon the complainant.

2. I now deal briefly with some of the arguably more significant of those features.

Fresh complaint

1. The evidence was that in October 1987 the complainant complained to others of the appellant's conduct. The incest had occurred in September. Her complaints were not in terms extending to intercourse, but to the effect that the appellant had touched her in a sexually inappropriate way. Those complaints were made to the appellant's girlfriend (although Ms B did not give evidence of any such complaint), and the Family Services officer Ms G. Notwithstanding that she did not in terms allege incest, the limitations on the complaints made should not of themselves necessarily have caused the jury to be sceptical of the complainant's credibility.

Withdrawal of complaint and its revival

1. The complaint made in 1987 led to charges against the appellant which found their way into court. In April 1988 the complainant indicated that she wished to withdraw the allegations because they were untrue. She confirmed that to the police in writing, saying that the allegations were the result of a feeling of hurt over her parents' separation.

2. She said: "No one has spoken to me to get me to drop these charges." Yet at trial, she said that her grandmother […] had put pressure upon her, telling her the appellant had tried to gas himself and would kill himself if the matter proceeded. The complainant claimed her grandmother also said she would never talk to the complainant again if the matter went ahead. The grandmother gave evidence denying any such conversation.

[16] At the trial, the complainant conceded that she made the complaint because she
wished to ensure she lived with her mother not her father.

1. It was in June 2000 that the complainant decided to resuscitate her complaint, having been advised to do so by a psychiatrist, Dr H at the Mental Unit at the Glenside Hospital in South Australia to which she had admitted herself.

2. It is convenient to mention here that the learned Judge comprehensively covered with the jury the circumstances of the withdrawal and revival of the complaint, raising all those matters as one of the bases for his warning that "it would be dangerous to convict [V] of all or any of these offences on the basis of [the complainant’s] evidence alone unless you are satisfied that her evidence is materially supported by some independent evidence". The Judge's comprehensive coverage of the significance of the withdrawal of the complaint should have left the jury in no doubt as to its potentially serious impact on their assessment of the complainant's credibility.

Complainant's psychiatric and psychological condition

1. From November 1985 the complainant had been subject to a care and protection order. She was at this time engaging at school in attention seeking and aggressive behaviour.

[20] She was only 14 years old when she first saw a psychiatrist. She says that she was
then trying to suppress what had happened to her.

1. From 1998 or 1999 the complainant began seeing a general practitioner specializing in psychotherapy, Dr C, on a monthly then weekly basis, because of "flashbacks" of child abuse and problems in her current living.

2. In June 2000 she admitted herself to the Mental Unit at Glenside Hospital in South Australia, where she was under the care of at least two psychiatrists. It was then that she decided that she should revive her complaint.

3. After leaving Glenside she returned to Dr C for counselling sessions.

4. The complainant said she had been diagnosed as suffering from post-traumatic stress disorder, and dysthymic disorder. In her evidence she denied that Dr C's diagnosis of major depressive anxiety disorder with underlying bipolar disorder was correct.

5. The investigating police officer confirmed that he had been unable to locate a number of medical practitioners and specialists who had treated the complainant for psychiatric and psychological problems, including Dr C. Other psychiatrists had declined to provide reports.

6. Dealing with the grounds of appeal below, I set out the learned Judge's treatment of the psychiatric issue in his summing-up, treatment which was comprehensive and directly alerted the jury to the potential problems.

Inconsistencies

1. Inconsistencies within the complainant's own evidence were such as would ordinarily be considered of great significance. They concern such matters of detail as the years in which various acts of indecency occurred, whether on various occasions the complainant was wearing a nightdress or shorts, whether the shower area was enclosed by a door or a curtain, and whether one of the offences occurred on a couch or in the bedroom.

2. As to inconsistencies between the complainant's evidence and that given by others, the complainant gave evidence that her father abused her physically when she was young, yet the complainant's mother said that she had not witnessed any physical abuse by the appellant which went beyond normal domestic discipline.

3. As has been mentioned, the appellant's then girlfriend did not give evidence that the complainant complained of inappropriate sexual behaviour on the part of the appellant. The complainant's grandmother denied the statements attributed to her by the complainant.

4. The jury was properly instructed as to inconsistencies, and especially having regard here to their extent, the assessment of their significance was quintessentially for the jury, as this court should now acknowledge.

Complainant's demeanour

1. There was evidence of Ms G's adverse assessment of the complainant, as being attention seeking, flirtatious and manipulative: that concerned the complainant's demeanour in August 1997. No doubt the jury was urged by defence Counsel to give weight to those matters, when assessing the credibility of the complainant.

Grounds of appeal: adequacy of summing-up

1. Counsel for the appellant submitted two particular criticisms of the summing-up which form the basis of grounds of appeal. The first was that the Judge erred "in not directing the jury that because of the complainant's recent psychiatric history and the absence of proper investigation of it and the information pertaining to it, it would be dangerous to convict".

2. That criticism was not in my view warranted. The Judge referred the jury to the complainant's "prolonged and concentrated psychiatric treatment or counselling". He cautioned the jury not to pin responsibility for that onto the appellant, and that that evidence could not be used as a basis for concluding that the accused was guilty. He told the jury that the complainant's condition raised the issue whether she should be regarded as having given accurate and reliable evidence, including the possibility that she may have deliberately lied, or that she may honestly though mistakenly have believed that she was sexually abused by the appellant.

[34] His Honour's approach to this matter in the summing-up accorded with Bromley v R
(1986) 161 CLR 315, 319, per Gibbs CJ:

"If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case."

1. This was a case where the complainant's reliability and truthfulness were rigorously tested through lengthy cross-examination. Her psychiatric history was canvassed on a number of occasions in the course of the cross-examination. The jury had ample opportunity to assess the complainant's creditworthiness during her evidence. Her position at trial was that she was not then taking medication, and had not done so for two years.

2. The second criticism of the summing-up was that the learned Judge erred "in that he did not sufficiently direct the jury's attention to the existence and relevance of potential innocent explanations for the rawness or inflammation detected on the left side of the complainant's labia majora".

3. While the learned Judge did not, in his summing-up, specify the possible innocent explanations given by Dr S in his evidence, he drew attention to them sufficiently, if indirectly, when reminding the jury that it was for them to decide whether or not the medical evidence was consistent with the complainant's account, and "whether there is no other rational explanation for it. If you are satisfied there is no other rational explanation for it, then you may take the view that that tends to support her evidence in a material particular, in a material way." He went on to emphasize the point: "As I say, if you are satisfied that the only rational explanation for the injury observed by Dr S is that it occurred in the way (the complainant) describes, then that supports her evidence in respect of (the count of incest) in a material particular."

[38] I do not consider that the appellant's submission criticizing the summing-up in this
respect is sustainable.

Ground of appeal: that conviction unsafe

1. I turn finally to the ground that the conviction is unsafe. We are required to carry out the exercise described in M (1994) 181 CLR 487, addressing the question whether a properly instructed jury should reasonably have convicted the appellant. See also MFA v R (2002) 193 ALR 184 and Jones v R (1997) 191 CLR 439. M (p 493) provides a convenient statement of the test:

   "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

2. I have reached the conclusion that the verdict is not unsafe. No doubt there were many points which could be made, and have been made, by the appellant in an endeavour to erode the legitimacy of the conviction. Some of them may readily be discounted.

3. The inconsistencies within the evidence, for example, were not necessarily of great moment and are susceptible of explanation. The medical evidence is said not to have been greatly probative, but its potential consistency with the application of force to the genital area was plainly significant in light of the conduct embraced within the count of incest. As to recent complaint, while the complaint made by the complainant, albeit reasonably proximate in time to the alleged incest, did not allege penetration, it did extend to sexually inappropriate contact: this was not a case where the deficiencies in the complaint should have caused a reasonable jury to have a general doubt about the complainant's veracity.

[42] The arguably more substantial matters are the circumstances of the withdrawal of
the complaint in 1987 and the complainant's psychiatric history.

1. As to the withdrawal of the complaint and its revival 13 years later, it is important to acknowledge that a complaint was made in 1987, the very year of the incest. This was not a case of a complaint first brought 13 years after the alleged offending. The explanation for the withdrawal potentially bore extensively on the issue of the complainant's credibility, as the jury was comprehensively counselled by the Judge.

2. As to the complainant's psychiatric history, the jury was graphically reminded of its manifestations as at about the time of the offending conduct, especially through the evidence of the Family Services officer Ms G; of the complainant's condition as at the time she revived the complaint in 2000; and of the complainant's condition, said to have been medication free, at the time of giving evidence. The absence of doctors did mean that the defence was limited in its opportunity to investigate these matters. The jury was aware of that, however, and that was a feature which would no doubt have been taken into account in their approach to the complainant's own evidence.

3. While upon an initial consideration, one might feel the cumulative effect of the problems in the prosecution case raised doubt about the conviction, the circumstance that those problems were so clearly laid out before the jury, through the evidence, the addresses of Counsel and the summing-up – in conjunction with strong warnings, may in fact in the end be seen as strengthening one's view as to the reliability of the verdict – as submitted by Ms Bain for the respondent.

[46] The critical ultimate issue was the credibility of the complainant's account. It is
worth recalling the analysis in M (pp 493-4), confirmed in Jones (p 451):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

1. In the end, I do not consider this to be a case where the court should gainsay the verdict. It is a case for acknowledgement in full measure of the substantial advantage enjoyed by the jury in being able to assess the evidence of the complainant, having seen and heard it delivered. While of course an appellate court may, on the basis of a review on the papers, conclude that a conviction is unsafe, this was a case where the jury's advantage was so distinct that notwithstanding the points fairly raised on behalf of the appellant, this court should not set aside the jury's verdict. This was, in short, a case where the manner in which the evidence was given was of paramount significance. I am not satisfied that the jury, acting reasonably, should in this case have acquitted.

2. I would dismiss the appeal.

[49] WHITE J: I have had the advantage of reading the reasons for judgment of the
Chief Justice and respectfully agree with his reasons for dismissing the appeal.

1. ATKINSON J: I have had the opportunity of reading the reasons of the Chief Justice and agree that, for those reasons, the appeal against conviction should be dismissed.