R v VAA

[2022] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v VAA [2022] QCA 259

PARTIES:

R
v
VAA
(appellant)

FILE NO/S:

CA No 68 of 2022
DC No 970 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 21 April 2022 (Rosengren DCJ)

DELIVERED ON:

16 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2022

JUDGES:

Mullins P and Morrison JA and Crow J

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – CRIMINAL LAW – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – NATURE OF DISCRETION – WHEN OBJECTION NOT TAKEN – where the appellant was found guilty after trial of seven counts of indecent treatment of a child under 16, under 12 and under care – where a major inconsistency relied upon by the appellant at trial was the difference between the complainant’s evidence that she made her first preliminary complaint to her mother in 2017 and a second preliminary complaint to her mother in early 2018 and her mother’s evidence that there was not any complaint made until 18 September 2018 – where redirections were given on the replaying of evidence that was used in the trial as relevant only to the conflict in the preliminary complaint evidence – where the defence case at trial involved an attack against the complainant’s honesty or reliability – where defence at trial failed to seek the exclusion of the statements that are now complained of - where that failure could be seen as a logical forensic choice being made in the conduct of the defence case – whether the appeal should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after trial of seven counts of indecent treatment of a child under 16, under 12 and under care – where the appellant’s case at trial was that the jury ought to have entertained a reasonable doubt about the appellant’s guilt because the complainant ought not to be considered an honest or reliable witness due to several inconsistencies or discrepancies in the evidence – where the major inconsistency relied upon was the inconsistency between the complainant’s evidence and her mother’s evidence as to the presence or absence of the complainant’s half-sister in the bedroom where the offences the subject of Counts 1 to 5 occurred – where there were several different versions of the facts relating to the sleeping arrangements of the complainant’s half-sister – where this was a question of fact for the jury – whether the appeal should be allowed

Evidence Act 1977 (Qld), s 93A

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

COUNSEL:

T A Ryan for the appellant
G J Cummings for the respondent

SOLICITORS:

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

1. THE COURT:  After a three-day trial concluding 21 April 2022, the appellant was found guilty of seven counts of indecent treatment of a child under the age of 16, under 12, and under care.  The appellant has appealed his convictions, raising as ground one that the verdicts were unreasonable.

2. The second ground of appeal argued by the appellant was that a miscarriage of justice was occasioned by:

   (a)The admission into evidence of hearsay upon hearsay (that is, evidence that the complainant overheard her mother say “You always say you will stop”);

   (b)The admission into evidence of hearsay evidence (that is, the complainant heard the appellant say “It’s a joke”), which the appellant contends was inadmissible because it did not contain a statement against interest or because of its low probative value compared to its risk of misuse; or

   (c)Even if evidence at (a) or (b) were admissible, its relevance to the Crown case was not identified to the jury, nor was the jury given any directions at all about its use, and the risk of misuse was obvious.

3. It is convenient to consider ground two prior to ground one.

   Ground Two – wrongful admission of evidence

4. The complainant was born in June 2007.  The complainant’s parents separated in 2008, and the complainant’s mother (CM) commenced a new relationship with the appellant in 2009.  The complainant alternated her residence on a weekly basis between CM and the appellant and her father and his partner.

5. The appellant fathered two children with CM, a half-sister to the complainant born in January 2015 and a half-brother to the complainant born in July 2017.  The appellant, CM and their family resided in a 3-bedroom house in one suburb (the first residence) prior to 1 August 2017 and thereafter resided at a 4-bedroom house at another suburb (the second residence).

6. Counts 1 to 5 were alleged to have occurred on a date unknown between 31 December 2016 and 1 August 2017 at the first residence.  With respect to the offending at the first residence, Count 1 was particularised as an instance of the appellant sliding his arm under the complainant’s clothing and squeezing her breast whilst the complainant was in bed in the room she shared with her half-sister.  Count 2 was particularised as an occasion when the complainant was asleep in her bed when she awoke to find the appellant touching her breast underneath her crop top.  Count 3 was alleged to be an occasion when the complainant was in bed and the defendant used his finger or fingers to apply an ointment to the complainant’s nipple.  Count 4 was particularised as an occasion when the claimant was asleep in bed when she awoke to the appellant putting his hand underneath her clothing and touching her breast.  Count 5 was particularised as an occasion when the complainant was in her bed and the appellant placed the complainant’s hands upon his penis.

7. Counts 6 and 7 were alleged to have occurred between 31 July 2018 and 1 September 2018 at the second residence.  The particulars of Count 6 were that on an occasion when the complainant was wearing a jumper with sequins on it the appellant used his hands to stroke the complainant’s chest area on the outside of her jumper and pushed down in the area of her breasts.  In respect of Count 7 the allegations were that on an occasion when the complainant was in the kitchen the appellant touched her breast.

8. The appellant’s case at trial was that he did not do what was alleged against him in Counts 1 to 5 and 7.  The appellant’s case in respect of Count 6 was that he ran his hand up and down the sequins on the complainant’s jumper but that he did not stroke her chest or push down in the area of her breasts.  The appellant did not call or give evidence, but the complainant and her mother were cross-examined to the effect that the complainant was wearing a jumper with sequins on the front where the pattern of the sequins could be moved up and down and that is what the appellant did in the presence of CM.  The complainant denied the suggestion in cross-examination that when the appellant ran his hand up and down the sequins, he did not press into her breasts.  CM did not recall ever seeing the appellant touch the top.

9. CM was called as a preliminary complaint witness and her evidence was that on 18 September 2018 the complainant told her “Mummy, Daddy touched my boobs.”.[1] On 21 September 2018, police officers recorded an interview with the complainant, pursuant to s 93A of the Evidence Act 1977 (Qld). The recording of the s 93A interview was played to the jury on the first day of trial. The edited transcript runs to some 63 pages.[2] As to the s 93A recording, it is important to observe that the complainant was only 11 years of age at the time of the recording and, as was appropriate, the interviewing police officers made an attempt not to lead the complainant into her evidence but allowed her to give her own version of what had occurred. Near the commencement of the interview, when asked by the police officer to tell him why the complainant had come here to talk to the police, the complainant said:[3]

   “Um, because my stepfather has been touching my body parts ever since I, like, hit the puberty, like, when I start getting my body parts. And I also feel … Uncomfortable and, um, this year last, this week my stepfather has, um, tried to touched to you and I said, stop, really loud and I pushed him away from me and I told him, I always tell you to stop and you never stop and you always say it’s a joke and it’s not a, a joke and it’s not okay. And he always goes, like, a sound like makes like, hmm, like that. …

   And last year when my sister was like a few months old, um, she had a cot in my bedroom and my dad went in the bedroom and he slept in my bed and I was pretending to be asleep but he went under my, um, shirt and under my crop top and touched my chest area and I was too scared to like tell him because I didn’t know what was gonna happen…. And he’s done it a few times or a couple…

   And one time he went, um, a bit more further that I was actually asleep until I woke up but then I was still pretending to be asleep and he got, I felt that he got my hand like this and he made me touch a bit of his bottom private…

   But like it was a light touch and I pretend to, like, um, be awake a bit so I just went, I just shaked and then he swore the F word and then he put my hand down an-, like he dropped my hand and then I continued to be asleep, pretending to be asleep.

   And then, um, I once told my real mum that he, um, touched me on my chest area and she had an, a bit of an argue with him. And like she, I heard her say really loud that, why did you do that to her? Um, she might tell people, she might tell her friends. And then I heard my stepfather say, I don’t do that, I don’t do that. When he actually did do it and he said that, it’s a joke, it’s a joke. When it’s actually not a joke and it’s actually … Serious…

   And my mum tried to say that a few times but he just kept coming up with other excuses and excuses…”

   [1]Appeal Record Book (ARB) at page 163 line 40.

   [2]ARB at pages 308 to 370.

   [3]ARB at pages 310 to 311.

10. The complainant then said that the appellant had been touching her since 2017.

11. Later in the interview after describing the incidents the subject of Counts 1 to 7, the complainant spoke of an occasion when police came to the complainant’s school and told the students, including the complainant, not to “let people touch you”.[4]  The complainant first said this occurred in 2017[5] but soon after corrected herself and said that the police came in Term 1 2018.[6]

    [4]ARB at page 339 line 38.

    [5]ARB at page 339 line 37.

    [6]ARB at page 340 line 15.

12. The complainant’s version was that some 2-3 days after the police came to her school that she had a conversation where:[7]

    “I told my stepfather that, um, I said to him like really harsh way I was like, do you know the police’s came in, um, at the school and they said that, um, someone’s not supposed to touch you when you don’t want them to… And he was like, yeah I, yeah that’s right. And I was like, then why do you do it? And he’s just like, he’s just, hmm. Like that… And I’m just like, I was just like speechless, I didn’t talk or anything …”

    [7]ARB at page 339.

13. The complainant spoke of an occasion or possibly two where she challenged the appellant.[8]  The complainant said:[9]

    “And once he tried doing it again and I was still at [the suburb of the first residence] and I was already sleeping, he put his hand under so that I would got tired of the story so then I was like, I was like, dad, like, like I turned around and like shook my head a bit when I turned around. And then I was like, what are you doing? Why are you [indistinct] under my clothes? And why are you touching me? … And why are you in my bed? And he just goes, oh I thought you were asleep…”

    [8]ARB at page 354 to 356.

    [9]ARB at page 354 to 355.

14. Towards the end of the police interview the police officers sought some clarity as to the preliminary complaints made by the complainant to CM.[10]  The complainant said that she first made a complaint to CM in 2017 and then in Term 1 2018, after the police had spoken to her and other students at school, that she had told the appellant about the police talk at school and on that occasion her mother was there too.  The complainant’s version of the Term 1 2018 discussion with the appellant and CM was:[11]

    “…[W]hen the police said that don’t touch when people don’t want you to touch. … And why did you do it to me? He goes, no. Yeah, yeah that day and then my mum was like, my mum said, oh has she might have told her friends or she might tell other people and you shouldn’t do that to her. And he goes, he said, oh it’s a joke, it’s a joke. … And then she goes, it’s not a joke. And he, and like really serious and she put her arms like this and went like this … And then my dad was like, touching his hair like this and he was like this. … but I was on my phone and then I was just listening while playing a game. … And then mum was like, she was like furious she was just like doing this. … And then, and then, and then she was like, don’t ever do that ever again okay? You always say you will stop and you never stop. And then yeah…”

    [10]ARB at page 363.

    [11]ARB at page 363 to 364.

15. The complainant’s version was that she made a preliminary complaint to CM in 2017, in Term 1 2018 and on 18 September 2018 and then made a preliminary complaint to her stepmother also in 2018.

16. A major inconsistency relied upon by the appellant at trial was the difference between the complainant’s evidence that she made her first preliminary complaint to CM in 2017 and a second preliminary complaint in early 2018 and CM’s evidence that there was not any complaint made until 18 September 2018.  Defence counsel urged the jury to accept CM’s evidence that there was no complaint in 2017 with the consequence that the jury ought not to accept the complainant as honest or reliable.  That this was a major argument in the defence case is made plain in defence counsel’s address to the jury.[12]  On the complainant’s evidence the impugned statement the subject of Ground 2(a) “You always say you will stop” was said by CM immediately after the complainant’s second preliminary complaint to CM in early 2018.  The defence submission was that the jury had to choose between CM’s evidence or the complainant’s evidence.  Therefore, there was a good forensic reason for defence counsel at trial not to object to the impugned statement.

    [12]ARB at pages 33 to 34.

17. As to Ground 2(b) being the repetition of the words “it’s a joke”, they are not hearsay as they are statements said by the complainant to have been made by the appellant to CM in her presence.  Whilst it may be accepted that the statement “It’s a joke” did not contain a statement against interest, they were statements used indirectly in the defence case in attacking the credibility of the complainant, as CM’s evidence amounted in effect to a denial that such a conversation occurred.

18. The defence argument to the jury was that the complainant could not be accepted as a witness of honesty or reliability because her mother had denied any complaint being made in 2017 or in early 2018.  It was a forensic advantage to the defence case, as argued, not to exclude at the trial evidence of the complainant hearing the appellant say “it’s a joke”, when CM asserted that the complaint was not made to her until 18 September 2018.  At the trial neither the prosecutor nor the defence counsel otherwise referred to the detail of the conversation that is the subject of ground two.  The only relevance of the conversation was in connection with the preliminary complaint evidence.

19. After completion of the summing up on day three at 11.17 am, the jury presented a jury note which read:[13]

    “We would like to review the segment of the police interview in which [complainant] recounted overhearing her mother and stepfather arguing after she had told her mother about her stepfather’s actions. Specifically, a segment where her mother … Said, “You said you wouldn’t do this anymore,” or something similar to this to the stepfather…”

    [13]ARB at page 55.

20. The primary judge invited counsel submissions to identify the relevant portion of the transcript.[14]  It included the words the complainant recalled were said by CM “You always say you will stop and you never stop”.  Experienced defence counsel not only agreed that that be played to the jury, but also and more importantly, that a small but highly relevant portion of the pre-record of the complainant’s evidence was also read to the jury, being the two questions and answers as follows:[15]

    “You never heard any conversation between your mum and [stepfather] about any of this touching?---I disagree

    Because your mum didn’t know anything about it until after you went to the police?---I completely disagree.”

    [14]Which was first identified to be from ARB page 363 line 30 for two pages, that is to ARB page 365 line 20.

    [15]ARB at page 96.

21. The jury were also redirected at the same time that CM did not give any evidence about the discussion to which the replayed part of the s 93A transcript and those two questions and answers from the complainant’s cross-examination related. The redirection emphasised the inconsistency between the complainant’s evidence of complaint in 2017 and subsequent conversations and CM’s evidence of no complaint until three days before the involvement of police in September 2018.

22. After the jury were redirected to that effect, defence counsel asked for a further redirection relating to the evidence identified above, which was played to the jury. So, the jury again heard a portion of the s 93A statement as follows:[16]

    “…I once told my real mum that he, um, touched me on my chest area and she had an, a bit of an argue with him. And like she, I heard her say really loud that, why did you do that to her? Um, she might tell people, she might tell her friends. And then I heard my stepfather say, I don’t do that, I don’t do that. When he actually did do it and he said that, it’s a joke, it’s a joke. When it’s actually not a joke and it’s actually … Serious.”

    [16]ARB at page 311.

23. The redirections were therefore confined to the replaying of evidence that was used in the trial as relevant only to the conflict in the preliminary complaint evidence.  The defence case at trial involved an attack against the complainant’s honesty or reliability.  A significant submission made by defence counsel, clearly furthering the defence case, was that the complainant’s honesty and reliability were severely compromised by the significant discrepancy between the acceptance of the complainant’s evidence that she made complaint to CM in 2017 and in early 2018 and CM’s evidence that the complainant did not.

24. Viewed in this manner, the failure to seek the exclusion of the statements now complained of could be seen as a logical forensic choice being made in the conduct of the defence case.  No further directions were sought at trial after the redirections.  In her summing up to the jury, the primary judge reminded the jury that any inconsistency between the complainant’s evidence and CM’s evidence in respect of preliminary complaint may cause the jury to doubt the complainant’s credibility or reliability.[17]  There is no criticism of the directions given on the purpose and use of the preliminary complaint evidence.  On appeal it is suggested that the jury should have been directed to ignore the conversation that the complainant said she overheard between her mother and the appellant and not rely on it in any way adverse to the appellant.  First, the jury were not asked by the prosecution to rely on the content of the impugned statements as adverse evidence against the appellant.  Second, the only use of the impugned statements was in relation to the preliminary complaint evidence.  A party is bound by the manner in which he conducts its case.  In view of the appellant’s indirect use at trial of the impugned evidence as part of the discrepancy between the complainant’s preliminary complaint evidence and CM’s preliminary complaint evidence and the adequacy of the directions on the preliminary complaint evidence, the appellant has not demonstrated a miscarriage of justice by the admission into evidence of the identified statements.

    [17]ARB at page 45 lines 20-25.

1. The appellant argues that the impugned evidence had a significant effect upon the jury by an inference that following the redirection on the jury question which concluded at 12.48 pm, the jury had arrived at a verdict some 16 minutes later at 1.04 pm.  In our view, despite the passing of a small amount of time between the conclusion of the redirection on the jury question and the verdict, it cannot be inferred that the redirection made to the jury had an important influence on the jury of returning its verdict of guilty.

2. Jury deliberations are private, and it cannot be said whether one juror or eleven jurors or any number of jurors needed clarification and whether any number of jurors had formed any particular view.

   Ground One – verdict unreasonable

3. An argument that a verdict was unreasonable requires an independent assessment by the appeal court of the sufficiency and quality of the whole of the evidence at trial in order to determine whether it was not reasonably open to a jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences of which the appellant was convicted.[18]  In undertaking that assessment, the appeal court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.

   [18]Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [8] and [9]; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492 – 493.

4. The appellant’s case at trial was that the jury ought to have entertained a reasonable doubt about the appellant’s guilt because the complainant ought not to be considered an honest or reliable witness due to several inconsistencies or discrepancies in the evidence.  The major inconsistency relied upon was the inconsistency between CM and the complainant as to the presence or absence of the complainant’s half-sister in the bedroom where the offences the subject of Counts 1 to 5 occurred at the first residence.

5. Counts 1 to 5 were described by the complainant as having occurred in the presence of her baby half-sister in her bedroom, whereas CM’s evidence was that the complainant’s half-sister did not sleep in the complainant’s bedroom, but rather slept in the same bedroom as CM and the appellant.  In support of the acceptance of CM’s evidence, a photograph was tendered and marked as Exhibit 7.  The photograph was taken during Easter of 2017 at the first residence and showed the white furniture described by CM as the complainant’s half-sister’s bed in her parents’ master bedroom.[19]

   [19]ARB at page 166 line 5.

6. Counsel’s argument at trial and the appellant’s argument on appeal is that as each of the allegations in Counts 1 to 5 is described by reference to the presence of the complainant’s half-sister in the complainant’s bedroom, they cannot be accepted as being truthful when regard is had to CM’s evidence as corroborated by Exhibit 7.  Defence counsel at trial and the appellant on appeal argued that if the jury rejected the complainant’s honesty and reliability with respect to Counts 1 to 5, then it ought to take the same view with respect to Counts 6 and 7.

7. The difficulty, however, in the appellant’s argument, was that there were several different versions of the facts relating to the sleeping arrangements of the complainant’s half-sister.  This was very much a question of fact for the jury.

8. The appellant’s mother and father are both residents of Vietnam who visited Australia in 2017 and 2018.  The appellant’s mother recalled living in Australia in her daughter’s house and also the first residence and the second residence.  In a statement read into the record,[20] the appellant’s mother recorded that when she stayed at the first residence she stayed in the bedroom opposite the living room, which is shown as bedroom 3 on the floor plan of the house.[21]  The critical period for Counts 1 to 5 was January to July 2017 (both inclusive) and it was not apparent from the appellant’s mother’s statement that she spent all those months at the first residence rather than some time at her daughter’s house.

   [20]ARB at page 190.

   [21]ARB at page 234.

9. The appellant’s mother’s recollection is that she and her husband stayed in bedroom 3, whereas the appellant, CM, and their baby daughter, stayed in the main bedroom.

10. The appellant’s father, also in a statement[22] recalled visiting Australia from Vietnam every year, staying with both his daughter and his son.  The appellant’s father recalls staying at his son’s first residence and recalls that he would stay in bedroom 3, that is the bedroom opposite the living room.  The appellant’s father recalled that he and his wife slept in separate rooms and they stayed at their daughter’s address as well.  The appellant’s father recalled that the appellant, CM, and their baby daughter slept in the main bedroom and the complainant slept in her own room.

    [22]ARB at page 191.

11. The complainant’s evidence was that, in the first residence, CM and the appellant slept in bedroom 1 (the master bedroom) and additionally “but when my little sister was born she was sleeping with my parents”.[23]  The complainant described bedroom 3 as being her and her little sister’s room and bedroom 2 as being mostly a spare room, however, the complainant said that the appellant would sleep in the spare room sometimes if he had an argument with the CM.[24]  The complainant also said that when her grandmother and grandfather visited the first residence, that she slept in bedroom 2 (for a while) as her grandparents slept in her usual bedroom, being bedroom 3.[25]  It was not in issue at the trial that there was a chest of drawers in bedroom 3 on top of which was kept the formula and other baby things and it was where the formula for the complainant’s half-sister was made.  The complainant’s evidence was that her half-sister continued using the formula until after they moved to the second residence.

    [23]ARB at page 375 lines 26-27.

    [24]ARB at page 375.

    [25]ARB at page 382.

12. The complainant gave evidence that when her grandparents visited, her grandmother would look after her half-sister in bedroom 3.[26]  The complainant did confirm that the things that happened to her occurred in the first residence whilst her half-sister was sleeping in her room, that is bedroom 3.  The complainant’s evidence was that the cot in which her half-sister slept was not removed from bedroom 3 at the first residence[27].  The complainant’s evidence was to the effect that Counts 1 to 5 were committed by the appellant when he came into bedroom 3 to give her half-sister formula.  The complainant gave detailed evidence of the appellant’s various actions in the room before committing the indecent acts.  They included his making the formula, patting her half-sister’s head, giving the half-sister a bottle and wiping the teat that had fallen on the ground.

    [26]ARB at page 382 line 40.

    [27]ARB at page 85 line 46.

13. CM’s evidence was that the complainant slept in her own bedroom (bedroom 3) at all times, other than when the appellant’s parents visited from Vietnam.[28]  CM’s evidence was that when the complainant’s half-sister was born, she was brought back to the first residence and slept in a bassinet right next to her own bed in the master bedroom 1.  CM then said as the complainant’s half-sister grew up a little bit she was moved out of the bassinet and placed into a cot, which was also in the master bedroom 1.

    [28]ARB at page 160.

14. CM then gave evidence that in approximately February 2015 through to February 2016, the cot was removed from the master bedroom 1 and placed in bedroom 3 and the appellant’s mother and the complainant’s half-sister slept in bedroom 3 (formerly the complainant’s bedroom) and that continued until February 2016 when the appellant’s mother returned to Vietnam.  CM then gave evidence that following the appellant’s mother returning to Vietnam, the complainant moved back to bedroom 3, and that her half-sister went to a toddler bed in the master bedroom 1 and remained there until the family moved to the second residence.

15. CM then gave evidence that at the end of 2016, the appellant’s parents returned from Vietnam to Australia and stayed for approximately a year, that is from approximately October/November 2016 to October/November 2017.[29]  It was during that period of October/November 2016 to October/November 2017 that the appellant’s parents resided with them most of the time, but not all of the time, and when they did stay at the first residence they would sleep in the complainant’s bedroom, bedroom 3.

    [29]ARB at page 161.

16. It was important to the defence case to cast doubt upon the complainant’s honesty and reliability based upon the evidential conflict as to the sleeping arrangements of the complainant’s half-sister.  It was the principal argument in defence counsel’s address.  It was a classic conflict of evidence to be resolved by the jury.  That is, the jury had to decide whether it would accept the evidence of the complainant that her half-sister slept in a cot or little bed in her bedroom (bedroom 3) at the first residence and therefore was, as the complainant alleged, in bedroom 3 when the incidents the subjects of Counts 1 to 5 occurred, or accept CM’s evidence, corroborated to some extent by the appellant’s mother and father’s evidence, that the complainant’s sister slept with the appellant and his wife in the master bedroom 1.  There was no true corroboration between the appellant’s parents’ evidence and CM’s evidence as their evidence also left open the conclusion that they did not reside at the first residence during the entire period that was particularised for Counts 1 to 5.

17. The evidential conflict between CM’s evidence and the complainant’s evidence on the sleeping arrangements during the relevant period was squarely a matter for the jury. They had the opportunity to view the evidence of both witnesses. There was a coherence and consistency in the complainant’s account in her s 93A statement and her cross-examination and her detailed observations of the appellant’s actions in bedroom 3 in attending to her half-sister before committing the acts which were the subject of Counts 1 to 5.

18. Even though there were matters calling into question the complainant’s honesty and reliability, particularly because of the discrepancies between the preliminary complaint evidence given by CM and the complainant, the assessment of the whole of the record, having regard to the advantage of the jury in assessing the witnesses, does not compel a conclusion that it was not reasonably open to a jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences of which he was convicted.  There is not a significant possibility that an innocent person has been convicted.

19. We dismiss the appeal.