R v W

[1996] QCA 246

IN THE COURT OF APPEAL	[1996] QCA 246
SUPREME COURT OF QUEENSLAND	C.A. No. 2 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. Helman J.
[R. v. W]

T H E Q U E E N

v.

W (Appellant)

FITZGERALD P.

PINCUS J.A.

HELMAN J.

Judgment delivered 23/07/1996

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND HELMAN J., SEPARATE

REASONS OF PINCUS J.A. CONCURRING AS TO THE ORDER MADE.

Appeal against conviction dismissed.

CATCHWORDS:	CONVICTION - indecent dealing with a girl under the age of 12 years (x 5), indecent assault with circumstances of aggravation (x 1) and maintaining an unlawful sexual relationship with a girl under the age of 12 years (x 1) - whether jury’s verdict unsafe and unsatisfactory - audio recording of police interview - complainant called as a witness - whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt - reliability of complainant’s evidence - faulty recollection and inconsistent statements of complainant when questioned at committal and at trial.
Evidence Act 1977, ss. 93A, 102 R. v. C (1995) 78 A.Crim.R. 226. R. v. Cowie ex parte Attorney-General [1994] 1 Qd.R. 326 R. v. Cumner (C.A. No.108 of 1994, judgment delivered 28 July 1994) R. v. Robinson (C.A. No. 1 of 1995, judgment delivered 4 August 1995) R. v. W (C.A. No. 46 of 1992, judgment delivered 20 July 1992) Re: Aaron Shane Morris v. Reference by Attorney-General under s. 669A of Criminal Code (C.A. No. 390 of 1994, judgment delivered 15 March 1995)
Counsel:	D. Lynch for the Appellant Ms L. Clare for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Directors of Public Prosecutions for the Crown
Date(s) of Hearing:	27 February 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND HELMAN J.

Judgment delivered 23/07/1996

The appellant has appealed against his conviction in the District Court at Brisbane on 15 December 1995 of five offences of indecent dealing with a girl under the age of 12 years, one offence of indecent assault with a circumstance of aggravation, and one offence of maintaining an unlawful sexual relationship with a girl under the age of 12 years. He was sentenced to imprisonment for 3½ years, with a recommendation that he be eligible for parole after serving a period of imprisonment of 1½ years. He has appealed against his convictions on the ground that the jury’s verdicts were unsafe and unsatisfactory.

The complainant, who was 12 years of age at the time of trial and experienced learning difficulties necessitating remedial teaching, stated that the appellant sexually molested her on a number of occasions between 1991, when she was in grade 3, and early 1995, when she was in grade 7. The complainant and the appellant’s daughter, A, are the same age and, at the time of the alleged offences, were close friends. All offences are alleged to have occurred at the appellant’s family’s home, where the complainant regularly stayed overnight during weekends.

The particulars of the offences of which the appellant was convicted are as follows:

Count 2: Indecent dealing with a girl under 12 years: an occasion in either grade 4 or grade 5 (i.e. in 1992 or 1993) when the appellant touched the complainant on the vagina either with his hand or his penis while the complainant was lying on a bed with her legs over the side and the appellant was standing upright.

Count 3: Indecent dealing with a girl under 12 years: an occasion on the appellant’s daughter’s the appellant touched the complainant on the vagina with either his hand or his penis whilst she was lying on a bed and he was standing upright.

birthday in 1993 when the appellant placed the complainant’s hand on his penis.

Count 6: Indecent assault with a circumstance of aggravation: the same occasion as for count 5 and involving the appellant licking the complainant’s vagina.

Count 7: Indecent dealing with a girl under 12 years: an occasion in early 1995 when the appellant placed his fingers into the complainant’s vagina.

Count 8: Indecent dealing with a girl under 12 years: the same occasion as for count 7 when the appellant touched the complainant on the outside of the vagina.

Count 9: Maintaining an unlawful sexual relationship with a girl under 12 years: the events referred to in the other counts, together with similar conduct on numerous occasions over the period.

Medical evidence called by the prosecution was to the effect that the complainant’s vagina had been penetrated by an object “two to three finger breaths (sic)” in size. The complainant’s mother was also called by the prosecution, and gave evidence that, in March 1995, she and the complainant had a “discussion [which] just started off as a talk about trust and that sort of led into discussion of morality and privacy and sort of just how my husband and I would look after [the complainant] and make sure that she is safe and that continued on to the discussion that [the complainant] disclosed.” After speaking to her mother, her husband and the local doctor, the complainant’s mother informed the police, and two days later the complainant was interviewed.

Audio recordings of the police interviews with the complainant and transcripts of the content of those recordings formed the foundation of the prosecution case against the appellant. The complainant was called as a witness, but gave no evidence-in-chief except to state that what she had said when she was interviewed by police was true and correct, after which she was cross- examined.

It is desirable first to summarise some general aspects of the complainant’s statements to police. When asked what was the first “yucky” thing that the appellant did, the complainant responded: “... he takes my hand and makes me hold his penis and he sticks his fingers where I don’t really like them.” Later, when asked where the appellant put his fingers, she said “in my vagina”. According to her, the appellant had done so “lots” of times, beginning when she was in about grade 3. She said that this occurred “Usually in the lounge room while everybody else was downstairs.” According to the complainant, the appellant made her touch his penis five or six times. When asked whether there was anything else that the appellant did to her which she thought was “yucky”, she said: “Sometimes when I am lying in bed when he tries to put his penis inside my vagina he licks my vagina.” According to the complainant that happened quite a few times in 1994. On the occasions when the appellant tried to penetrate her, according to the complainant the appellant “just stands in front holding his penis.”

In addition to the matters referred to in general terms by the complainant when interviewed by police, her evidence at trial made other general references to sexual molestation by the appellant; for example, she said that digital penetration occurred “lots of times”; cunnilingus “a few times, quite a few”; unsuccessful attempts at penile penetration, not many, three or four times in 1994: “he tries to put it in but it just doesn’t go. It stays at the top”; and that the appellant made her hold his penis a few times, five or six times.

The complainant’s statements to the police in relation to the specific counts, together with downstairs washing and the complainant was either in the main bedroom or A's room after just finishing dressing, the appellant lay her on the bed and tried to put his penis in her vagina. That made her feel “dirty, yucky, uncomfortable.” No evidence was given of this incident at the committal, and at trial the complainant could not remember an attempted penetration in grade 4 or 5. As will be seen, count 6 included a similar allegation in relation to which the complainant conceded that she could not say whether the appellant touched her with his penis or his hand. her evidence at the committal proceeding and trial, were as follows:

Count 3: On the morning after a slumber party for A's birthday in grade 5 (1993) while A was in the kitchen getting breakfast, the other girls at the slumber party were asleep and the complainant was on the lounge watching “Cartoon Connection”, the appellant came from his bedroom wearing only a t-shirt and put her hand on his penis for the first time; his penis was hard. At committal, the complainant could not recall this incident, but she gave evidence of it at trial. She then said that there were about four other girls involved in the slumber party and that they slept on the lounge room floor, which was visible from the kitchen. Initially she said that A was asleep like the other girls, but, when reminded of what she had said in her police interviews, she said that she could not recall if A was awake or asleep. She could not recall whether his penis was hard or soft, whether or not he said anything, and whether he moved his hand or anything else.

Counts 5 and 6 related to an incident which she initially said, in her police interviews, occurred on the weekend before the 1994 Christmas holidays. The complainant said the appellant pushed her onto the bed, that her legs hung over the side of the bed, that he was standing, that he tried to put his penis in her vagina and that he touched her with his penis; she also said “I think he tried to put his fingers in my vagina.” Later, she said: “He was just touching around the outside.” Later still, she said that the incident occurred a few weekends before Christmas, and that, after attempting penile penetration, the appellant licked her vagina. She also said that there were three or four attempts by the appellant to insert his penis in 1994, and that after most of them he licked her vagina. At the committal, she could not recall whether the appellant had tried to put his penis in her vagina in 1994. At trial, she could not recall if he was wearing pants, or where his hands were during the particular incident. Later in her evidence, she said that she did not know whether his hands or his penis touched her and that no other part of his body touched her vagina.

She also said that the appellant did not bend over at all during this incident and that his hands

were not on the bed.

Counts 7 and 8 also related to a single incident. After initially stating in her police interviews that she had not been to the appellant’s house in 1995, the appellant said that she had been there once that year in February, just before school began. In the morning, in the lounge room when the T.V. was on, he made her hold his penis. Later during the course of the interviews, she said that, after she had put togs on, she walked past him in the kitchen and he put her on his lap and put his hands inside her togs and felt her vagina. At the committal, she said that she did not go to the appellant’s house in 1995, and at trial she said that she could not recall if anything had happened on the occasion in question. The appellant’s wife gave evidence that the complainant stayed overnight once in 1995 on 24 February.

When interviewed by police, the complainant said that she had not told her mother earlier about what was happening because she was “too scared”, she “thought I’d get into trouble”.

The only motive suggested for the complainant to fabricate allegations against the appellant concerned a deterioration in the relationship between the complainant and the appellant’s daughter. For the appellant, reliance was also placed upon the asserted improbability of the complainant’s continuing to return to the appellant’s residence if he was molesting her; the explanation offered was that the complainant liked to be with the appellant’s daughter, who was her best friend, and she enjoyed using the swimming pool at the appellant’s house.

The appellant gave evidence denying any impropriety. While denying digital penetration, he raised the possibility of accident during horse-play. Dealing with the allegation of touching the complainant on the outside of the vagina, the appellant said: “If I remember that particular time, she was on the lounge. I just - I can’t remember whether A was in the room or not. But I’d just given A a cuddle and I’d possibly given [the complainant] a cuddle. But ... that’s about all, no.” He also said that he did not feel the complainant’s vagina, but “... might have picked her up and sat her on my knee. But as far as touching her like that, no.” The appellant said that he wore a t-shirt to bed, without underwear, but would put his shorts on before he left the bedroom and that his own daughter would not have seen him without his shorts on.

His wife and a family friend gave evidence that neither had seen anything untoward in the relationship between the appellant and the complainant, which appeared to be normal and friendly. Further, before this Court, it was accepted by the prosecution that “... the combined evidence of the appellant and his wife ... was to the effect that the two girls did everything together.”

It was submitted for the appellant that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. Reference was made to the complainant’s inability at committal and/or trial to remember incidents which she had alleged in her police interviews and inconsistencies in her testimony. Counsel for the appellant also submitted that in her evidence, as distinct from her police interviews, the complainant did not repeat the allegations that similar incidents occurred many times and said that she could not recall other occasions. Further, she could not recall the first occasion when the appellant had molested her or what occurred on the last occasion when she stayed at the appellant’s house.

In considering these submissions, it is important to remember that this is not a case in which there is a contention that recorded interviews with a child have been used unfairly against an accused. Nor is it contended for the appellant that the interviews were unfairly conducted; e.g., by the use of leading questions. On the contrary, the reception of the recordings of the interviews was not the subject of complaint, at least in this Court, and there was no suggestion that there was an insufficient opportunity to effectively cross-examine the complainant. The appellant’s case is based on the asserted unreliability of the complainant’s evidence which was said to be manifested by her faulty recollection and inconsistent statements when she was questioned at committal and trial.

Such a submission might have considerable force if the case against the appellant was based on the complainant’s evidence in chief at his trial, unsupported by evidence of her earlier allegations, and discrepancies existed between her evidence-in-chief and (i) earlier statements, e.g., at committal and (ii) contemporaneous statements under cross-examination at trial. However, the case against the appellant also included the evidence of the allegations made by the complainant in her interviews with police (Evidence Act 1977, s. 93A), the “accuracy” of which is required to be assessed in accordance with s. 102 of that Act. A line of cases in the Court of Criminal Appeal and this Court establish that proof that statements admitted under s. 93A were made can support a conviction irrespective of the unreliability of the complainant’s testimony at trial, notwithstanding that a person against whom allegations are made by a child which is admitted under s. 93A is neither present when the allegations are made nor able to ask questions of the child at the time, and even, on one view, if effective cross-examination in the course of a criminal proceeding brought on the basis of such allegations is impossible: see R. v. Cowie ex parte Attorney-General [1994] 1 Qd.R. 326; in Re: Aaron Shane Morris v. Reference by Attorney-General under s. 669A of Criminal Code (C.A. No. 390 of 1994, judgment delivered 15 March 1995); R. v. W (C.A. No. 46 of 1992, judgment delivered 20 July 1992); R. v. Cumner (C.A. No.108 of 1994, judgment delivered 28 July 1994); R. v. Robinson (C.A. No. 1 of 1995, judgment delivered 4 August 1995); R. v. C (1995) 78 A.Crim.R. 226. Of course, it does not follow that a jury is required to act on, or accord special weight to, statements admitted under s. 93A; the “weight”, if any, accorded to such statements is to be estimated in accordance with s. 102.

While it remains necessary for the specific complaints by an appellant to be considered by reference to the circumstances of each particular appeal in which it is asserted that a conviction is unsafe or unsatisfactory, such a process does not assist the present appellant. Consistently with the approach adopted in the earlier decisions to which reference has been made, it must be concluded that it was open to the jury, which had seen and heard both complainant and appellant, to convict him on the basis of the statements made by the complainant to police when she was interviewed, despite the deficiencies in her evidence at trial. In other words, guilty verdicts were open to a reasonable jury, acting reasonably, by reference to the evidence admitted under s. 93A of the Evidence Act.

It follows that the appeal must be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 23/07/1996

I have read the joint reasons of the President and Helman J. and concur in their Honours’ analysis of the facts of the case, and in particular the discrepancies in the complainant’s evidence.

I have also had the advantage of hearing the audio tape of the complainant’s explanations to the police of what was alleged to have been done to her, and seeing and hearing the video record of the appellant’s interview with the police. In reaching my conclusion I have been helped by impressions gained from these recordings and particularly from the former. The case is one in which there were some substantial inconsistencies between the complainant’s account given on different occasions, such as to require close consideration. The conclusion at which I have arrived is that the verdicts should not be set aside as being unsafe or unsatisfactory; despite the discrepancies to which I have referred, the jury was in my opinion well entitled to arrive at the verdicts of which complaint is made.

As to the cases referred to in the reasons of the President and Helman J, it seems to me doubtful whether they establish the propositions there set out. One reason for my reservation is that some of those propositions were never in issue. For example, none of the authorities cited deals with an argument that a conviction should not be based on a statement taken under s. 93A of the Evidence Act 1977, unless the person against whom allegations are made is present when it is taken and able then to ask questions of the child. The reason such an argument has not been advanced is that it would be hopeless, being merely an invitation to amend the section judicially. Nor can I, with respect, agree with the suggestion that consideration of the specific complaints made in this case about inconsistency does not assist the appellant; I think the inconsistencies are of such a kind as to require that they be considered in favour of the appellant and I can find nothing in the authorities cited to suggest the contrary. Nevertheless, I have reached the firm conclusion that the verdicts are not unsafe and that the appeal should be dismissed.