R v WAD
[2008] QCA 314
•10 October 2008
SUPREME COURT OF QUEENSLAND
CITATION:
R v WAD [2008] QCA 314
PARTIES:
R
v
WAD
(appellant)FILE NO/S:
CA No 338 of 2007
DC No 367 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
10 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
5 June 2008
JUDGES:
Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
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 the appellant was convicted of three counts of indecent treatment of a child under 16 years and one count of rape – where the learned trial judge stated in summing up that the prosecution case relied wholly on the evidence of the complainant – where there were inconsistencies in the complainant’s evidence – where the complainant had a limited command of the English language and her use of it was sometimes imprecise and apt to mislead – where the learned trial judge addressed the jury and gave appropriate directions concerning the inconsistencies in the complainant’s evidence – whether, taking the evidence and inconsistencies together as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of each of the charges
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, citedCOUNSEL:
C Reid for the appellant
R G Martin SC for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.
FRASER JA: The appellant was convicted in the District Court of three counts of indecent treatment of a child under 16 years and one count of rape. The appellant contends that the verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.
Outline of the case
The complainant A was born on 23 February 1992. In 1993 the complainant and her younger cousin B, who was born on 2 September 1993 came into the care of C, who treated them as her children. The complainant referred to C as her mother, her foster mother, or her stepmother. At the relevant time C was also caring for a three year old child called D. C met the appellant in 1994 whilst he was in prison. They married in about 2002 or 2003 but divorced before the appellant was released from prison on 15 April 2004. The appellant was not the complainant's father but the complainant sometimes referred to him as her father and sometimes as her step father.
In May 2004 C moved to Aurukun to take up employment and also to see if there was a chance of reconciliation with the appellant. C took with her the complainant, B and D. They all lived together in a large tent behind the appellant’s parents’ place in Aurukun. C was employed in Aurukun between 17 May 2004 and 2 July 2004. The complainant was 12 years old at that time.
The Crown case was that in Aurukun on an unknown date between 16 May 2004 and 3 July 2004 the appellant came up behind the complainant and touched her on the breast (count one); that the appellant then took the complainant back to the tent and showed her a picture of naked women holding their legs apart (count two); that the appellant, perhaps on a different day, asked the complainant to walk to the shops with him and on the way he led her to some bushes where he took her pants off and put his penis into her vagina (count three); and that after the appellant had raped the complainant he made her place her hand on his penis (count four).
The issue at trial in relation to each count was whether the Crown established beyond reasonable doubt that the alleged conduct had occurred.
In the complainant’s pre-recorded evidence she confirmed her statements in two earlier recorded interviews with police to the effect that the appellant had engaged in the conduct alleged in the charges. During an extensive cross-examination of the complainant (in transcript form it occupies about 53 pages) the complainant maintained her evidence to that effect. The cross-examination highlighted suggested inconsistencies within the complainant’s evidence and between it and other evidence, including the complainant’s statements to school friends and a boarding house supervisor in 2004 and in 2006: these suggested inconsistencies are at the heart of the appellant’s arguments in the appeal.
Dr Haig, who examined the complainant on 31 August 2006, gave evidence that she found old, healed tears in the hymen. She expressed the opinions that it was likely that those tears were caused by some blunt object penetrating the entrance to the vagina, such as fingers or a penis, and that the state of the complainant’s hymen was not indicative of regular sexual conduct. Dr Haig also gave evidence that a urine sample taken from the complainant tested positive for a sexually transmitted infection that can be acquired only by having sex and which may have been symptomless. Her evidence was that it could well have been present since around 2004 without any symptoms. Cross-examination of Dr Haig established that the tearing she observed and the onset of the disease also might have occurred before or after 2004. The complainant gave evidence that she had not been penetrated sexually before or after the appellant had done so in Aurukun in 2004.
The prosecutor also adduced evidence that in 2004 during the period when the complainant was in Aurukun she told B and, when B told C, she told C that the appellant had (in effect) raped her; that C had not believed it; and that the complainant had then withdrawn her complaint. That evidence was given by the complainant, by C (in her statements read to the jury, with the appellant’s consent), and by B (in a recorded interview with police and in his subsequent pre-recorded evidence). The effect of the complainant’s evidence, which defence counsel challenged at trial, was that she withdrew the complaint because of C’s disbelief and out of fear of the appellant. In this appeal the appellant relies upon the contemporaneous withdrawal of the complaint.
The appellant’s boarding school friends E and F (who was the complainant’s cousin) gave evidence at the trial. The evidence of another boarding school friend, G, was pre-recorded and a transcript of her earlier recorded interview with police was also read to the jury with the appellant’s consent. H, the complainant’s boarding school house supervisor also gave evidence. Those witnesses gave evidence of complaints made by the complainant to them in 2006 about the appellant’s alleged offending.
A chronology of relevant events was set out in an exhibit at the trial:
"TIMELINE
15 April 2004 Accused released on parole.
17 May to 2 July 2004 C takes 3 children (A, B and D to Aurukun for reconciliation with accused.
28 May 2004 A discloses sexual offending to B who then tells their mother (noted in C’s diary).
18 April 2006 A discloses sexual offending to E.[1]
[1]This “timeline” was admitted by consent of the appellant but the jury were told that there may be a question mark against this date, which H said was the day the boarders returned from school holidays after Easter.
April 2006 A discloses sexual offending to F.
June 2006 A discloses sexual offending to G.
12 June 2006 F tells H (supervisor of boarders) of the sexual offending.
Approx.
15 June 2006 H talks to A and contacts police.
22 June 2006 A interviewed by police
18 August 2006 A interviewed by police
31 August 2006 A examined by Doctor Kay Haig
12 September 2006 G interviewed by police
23 December 2006 B interviewed by police
11 October 2007 Affected Child Hearing of A
11 October 2007 Affected Child Hearing of B
17 October 2007 Affected Child Hearing of G"
The appellant gave evidence at the trial. He denied the allegations and he maintained his denials under cross-examination. The Crown admitted at the trial that at any time that the appellant had been questioned about the allegations his response had always been a denial.
As appears from the above chronology the pre-recorded evidence of the complainant, B and G was taken over two days. The trial occupied four days between 5 and 8 November 2007. In the trial judge’s summing up his Honour gave directions as to the onus and standard of proof and as to the elements of the alleged offences, discussed the evidence, and directed the jury that: “You can only find the accused guilty if, after scrutinising the evidence with great care, you are satisfied beyond reasonable doubt that she is telling the truth. If you are left in doubt as to where the truth lies, you should acquit. The prosecution case here depends wholly on the evidence of the complainant.” The trial judge then referred to inconsistencies between the complainant’s evidence and the complaints by her and warned the jury that "… it would be dangerous to convict the accused on the complainant's testimony alone, unless, after scrutinising it with great care, considering all the circumstances relevant to its evaluation and paying heed to this warning, that you are satisfied beyond a reasonable doubt as to its truth and accuracy."
The appellant’s contention
The appellant does not make any complaint about the trial judge’s summing up or as to any direction given by his Honour.
The appellant contends that in what was essentially a case of word against word, the complainant's allegations against the appellant's denials, serious inconsistencies within and between her complaints to family and friends, her accounts to the police, and her evidence are such that the Court ought to conclude that it was not open on the whole of the evidence for the jury to convict.
The question raised by this contention is whether, notwithstanding that as a matter of law there is evidence to sustain a verdict, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[2]
[2]MFA v The Queen (2002) 213 CLR 606 at 614-615, 623-624; [2002] HCA 53; M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63.
I turn now to the evidence relating to each count on the indictment and the particular arguments advanced by the appellant in support of his contention.
The evidence
The following passage of evidence appears near the start of the complainant's first interview with police, on 22 June 2006:
"CONSTABLE ROSS: Yep. Okay. Alright, so what we want to do, is, is just talk about, how come you’ve come in here today? Would you be able to tell me why you’ve come here today?
A: Um, um, my father, WAD, he um, he touches me.
CONSTABLE ROSS: Mmhmm.
A: And um, he, he touches me and then, he does it to me like, and then after when he’s finished, he gives me fifty bucks.
CONSTABLE ROSS: Okay. Okay, so when does this happen?
A: Um, it was a long time ago when I was 12.
CONSTABLE ROSS: Mmhmm. And where did this happen?
A: In the Aurukun.
CONSTABLE ROSS: Okay. How do you know you were 12?
A: Oh, cause I can just remember. Like when people talks to me, um, and I sort of remember what had happened to me, and, I try not to remember it.
CONSTABLE ROSS: Yeah.
A: I try to forget about it.
CONSTABLE ROSS: (INDISTINCT), okay. Do you um, can you tell me, what, what were you doing around, the first time he, he touched you?
A: I was--
CONSTABLE ROSS: Do you remember what (INDISTINCT).
A: When I was, when it was like coming to dark time, like my parents, they were like in one room and um, me and my brother’s in the other room, and.
CONSTABLE ROSS: Yep.
A: In the morning, when I’m still sleeping, my mum leaves me, my [mum[3]] leaves me sleeping, she goes off to work and B goes off with his friends, and I’m there by myself in the tent.
CONSTABLE ROSS: Oh okay. So, this isn’t um, at a, in a house?
A: No in a tent."[4]
[3]This word is audible to on the video recording but is omitted from the transcript. I will use square brackets to mark similar corrections where they appear to be material.
[4]Pages 289 and 290 of record book.
This first passage in the first interview illustrates a number of points that are relevant in considering the appellant’s submissions. The complainant often did not express herself clearly: for example, she used the present tense to describe past events: "he touches me"; "he does it to me"; "my mum leaves me". Similarly she sometimes used the plural form to describe a singular event. Her evidence was that she had tried to suppress her memory of the events. She spoke very quietly for the most part and sometimes inaudibly. She sometimes appeared embarrassed and reluctant to describe the events of which she complained. At times in her evidence she appeared upset and tearful. Other examples of these features appear elsewhere in the complainant’s evidence, including in passages quoted later in these reasons. Those impressions conveyed by the transcript are confirmed upon viewing the recorded interviews and the pre-recorded evidence.[5]
[5]In the first interview, the complaint’s face is mostly obscured or difficult to make out but the impression I have described emerges from the recording of her speech. The complaint’s face is visible in the second interview and in her pre-recorded evidence.
I turn now to the evidence concerning each of the counts in the indictment and the arguments advanced for the appellant. After I have discussed those arguments separately I will consider the overall effect of the evidence.
Count 1
The conduct the subject of count one was then described by the complainant in the following passage:
"CONSTABLE ROSS: Okay. Okay, so when, when do you think it was that (INDISTINCT), what’s the first, the first time you remember this happening?
A: Um.
CONSTABLE ROSS: Do you remember when that was?
A: When, I just saw it like, he, my memory’s coming.
CONSTABLE ROSS: Yeah.
A: And, sometimes they go and they come.
CONSTABLE ROSS: Yup.
A: Yeah.
CONSTABLE ROSS: Do you remember when the first time was?
A: I think it was um, first day of school.
CONSTABLE ROSS: Okay, and what grade were you in?
A: Um, grade, grade 8.
CONSTABLE ROSS: Okay. So the first time you remember, your father touching you, you were starting school in grade 8, is that right?
A: Yeah.
CONSTABLE ROSS: Okay. And (INDISTINCT), what school were you at then?
A: Um, I was going to school in Aurukun.
CONSTABLE ROSS: Do they have a high school there have they?
A: Yeah.
CONSTABLE ROSS: Okay. Didn’t realise. Okay, can you tell me about happened, that first time?
A: Um, um, no not really.
CONSTABLE ROSS: No?
A: Like, when I was like, walking around with my friends, and, and yeah when I was by myself walking around, trying to find B, and, he came, and when I tried to run, and dad was like, behind me and said; What you doing here?
CONSTABLE ROSS: Yep.
A: And so, yeah, and then he grabbed my tit.
CONSTABLE ROSS: Yep.
A: Then when I looked up, I saw B there, on the roof."[6]
[6]Page 291 to 292 of record book.
During the cross-examination of the complainant about count one (which occupies some four pages in transcript form) the complainant maintained the version she had given in the first record of interview. The appellant does not place particular reliance in this appeal on that cross-examination. My own view is that it did not throw any doubt on the accuracy of the complainant’s evidence.
Count 2
The complainant's evidence in the first record of interview concerning count two is in the following passage:
"CONSTABLE ROSS: Okay, when you say that he, that he grabbed you on the tit, can you show me where he grabbed you?
A: Just (INDISTINCT).
CONSTABLE ROSS: Okay. And what did he do when he grabbed you?
A: He just, took me to, back to the tent, and showed me these pictures of women.
CONSTABLE ROSS: Okay. When he grabbed you on the, on the tit, did he say anything to you?
A: Um, no.
CONSTABLE ROSS: No? Did you say anything to him?
A: Um, no, I was just frightened and scared.
CONSTABLE ROSS: Yeah. Okay. So then you went back to the tent?
A: Yeah.
CONSTABLE ROSS: Okay. And what happened at the tent?
A: Um, yeah well, that’s what (INDISTINCT), just showed me these pictures that’s all, of women.
CONSTABLE ROSS: Okay, what were the pictures of?
A: Naked women, holding legs apart.
CONSTABLE ROSS: Holding their?
A: Legs apart.[7]
…
A: Nah, he just had a, just one little ripped up paper.
CONSTABLE ROSS: Okay. So it was just one, one.
A: Piece of paper, yeah.
CONSTABLE ROSS: One piece of paper, okay. And how many pictures was on that piece of paper?
A: I think there was one picture.
CONSTABLE ROSS: Okay. Can you um, can you um, tell me how old, the ladies were on the picture, or describe them?
A: They were like adults."[8]
[7]Page 293 of record book.
[8]Page 294 of record book.
It is evident that the complainant described only one picture but with more than one woman depicted in it. In the complainant's pre-recorded evidence, during an extensive cross-examination, the complainant maintained the version that she had gone back to the tent with the appellant where he had shown her an obscene picture, but she expressed some uncertainty about whether there was one woman or more than one woman in the picture: "Pictures of naked women, just a picture of a naked woman"; "A picture of naked women and – with their legs spread open …"; "There was only one woman in the photograph; was there? …I don't know"; "I can't remember if there was one or two women on there."
The jury may well have thought that inconsistencies of that character were readily explicable by the complainant being very upset at the time and by understandable lapses in her memory in the intervening three years, which she said she had tried to suppress. The appellant does not emphasise the evidence about this count in this appeal. In my view the essence of the complainant’s evidence about it was not really shaken.
Counts 3 and 4
The following passage in the complainant's first record of interview concerns counts three and four:
"CONSTABLE ROSS: Did anything else happen at that time?
A: Um, when I was around, um, dad told me, (INDISTINCT) you should come for a walk with me, go to the shops and get something. And then um, then I said; okay. And then, I went and, he told me a lie that, 'cause when he was walking down the street, we never, made the turn, we made, go to the bushes.
CONSTABLE ROSS: Mmhmm.
A: And then, he, D was crying so I went and got D, my little nephew. Um, yeah, and then, he got me, and I put down D, and, D was only 2 years old then, and then we went into the bushes, and, D was there playing in the sand and, yeah.
CONSTABLE ROSS: Yep?
A: Then he, did it to me, and.
CONSTABLE ROSS: And what did he do?
A: He, took off my pants and did it to me.
CONSTABLE ROSS: Okay. Do you know what it is, that he did to you? Is there any words—
A: He
CONSTABLE ROSS: That you can--
A: Raped me.
CONSTABLE ROSS: Okay. Can you tell me what, what raped means?
A: Um, when a child gets abused, like raped.
CONSTABLE ROSS: Yep.
A: And, yeah.
CONSTABLE ROSS: Okay. Okay. Can you describe to me, what he did to you, when he raped you?
A: Um, he took off my pants and, he tried um, he tried to (INDISTINCT) my hand and made it into this hand job and I didn’t like it, so, I tried to, put my hand away from it.
CONSTABLE ROSS: So where was your hand?
A: Um, they were beside my, my thighs and, I didn’t like it, then he got my hand and put it near his thing.
CONSTABLE ROSS: Yep. Then when you say that, he got your hand and put it, um, near his thing - what, what are you talking about, when you’re talking about his thing?
A: His um, (INDISTINCT).
CONSTABLE ROSS: Little bit embarrassing, I know.
A: Yeah.
CONSTABLE ROSS: But it’s important. Is there any other words, that, his thing is called?
A: His um, I don’t like to use the word.
CONSTABLE ROSS: I know sweetheart, but you can use it with me.
A: His dick.
CONSTABLE ROSS: Okay. Okay, so he put his, your hands, on his dick.
A: Mm.
CONSTABLE ROSS: Is that right?
A: Yeah.
CONSTABLE ROSS: Okay, and how did he do that?
A: He just got my hand, and I tried to take out, but he kept on forcing it, yeah, he was, yeah.
CONSTABLE ROSS: Yep? And what was he, um, what. I’m just trying to work out, how to word it. What um, what happened when, when your hands, ah, were, were on his dick, what happened?
A: I put it away so fast, and I didn’t wanted to do it anymore, then he let me go, and I, went back home, and got D, and I went back home, and then, yeah. And then, after that, I went, (INDISTINCT) where mum, and I never told her because, yeah.
CONSTABLE ROSS: Okay. Did he say anything to you, before?
A: No, he just gave me fifty bucks and that’s all, and I left.
CONSTABLE ROSS: Okay. So when he put your hands onto his, onto his dick, did he say anything to you then?
A: No.
CONSTABLE ROSS: Okay. Did you say anything to him?
A: Ah - mm.
CONSTABLE ROSS: No? Did he do anything, to show you what he wanted?
A: No.
CONSTABLE ROSS: No? Okay. So your hands just went onto his dick.
A: Yeah, and I took it away.
CONSTABLE ROSS: Okay. Can you um, can you tell me, um, what his dick looked like?
A: No.
CONSTABLE ROSS: No, do you remember?
A: No it was, disgusting."[9]
[9]Page 295 to 297 of record book.
The complainant returned to the topic later in the interview.
"CONSTABLE ROSS: Okay. Now when you talked about rape, is, is that what you mean by raped, that he make, put your hand onto his, onto his dick?
A: Yeah, his dick. (INDISTINCT), he was doing it, and he was, thing-ing me on the ground, and he, he got my hand and then yeah.
CONSTABLE ROSS: Okay. What, when you say he was thing-ing you, what, what do you mean?
A: He, he, he, yeah that word raped.
CONSTABLE ROSS: Yep. See I just need to know what, what you mean by raped, cause it might be different to what I think is raped.
A: What you think?
CONSTABLE ROSS: Well I can’t tell you darling.
A: (INDISTINCT).
CONSTABLE ROSS: Because, because then, I’m putting things into your head.[10]
[10]Page 309 to 310 of record book.
…
A: [Sighs]. He tried to have sex with me and then, yeah.
CONSTABLE ROSS: Okay, so how did he try to have sex with you?
A: He got my pants off and then, he got me and then, yep.
CONSTABLE ROSS: Yep.
A: (INDISTINCT).
CONSTABLE ROSS: What, what did he do, to try and have sex with you?
A: He, got my pants off and then, he had sex with me, in there, and then, (INDISTINCT), yeah, he got my hands.
CONSTABLE ROSS: (INDISTINCT).
A: And put it on his thing.
CONSTABLE ROSS: Yep.
A: Mm.
CONSTABLE ROSS: Okay, so how did he have sex with you, how did he do that?
A: He, he got me, he, he got me to lie down and, yep. (INDISTINCT) I don’t know.
CONSTABLE ROSS: (INDISTINCT), I, I, I just need you to explain (INDISTINCT), that’s all, because-.
A: I, I’m not a very--
CONSTABLE ROSS: Otherwise I don’t know.
A: I’m not a very good explainer.[11]
…
A: Well, I don’t, I don’t really want to, say it but, yeah, but, cause I don’t like it."[12]
[11]Page 310 to 311 of record book.
[12]Page 311 of record book.
Subsequently the complainant said:
"A: No. I think that’s when he tried to, have like, he tried to have sex with me, and then, (INDISTINCT), he put me down and then, he did to, he had sex, he did it to me, and then, after that, he got my hand and put it on his penis, and, and then, he was, yeah.
CONSTABLE ROSS: (INDISTINCT).
A: He, he, and then he just finished with me, then he gave me 50 bucks, and then I went.[13]
[13]Page 312 of record book.
...
CONSTABLE ROSS: Not sure? Okay. Okay. So when, when you say that’s your father had sex with you, - did it hurt at all?
A: (INDISTINCT).
CONSTABLE ROSS: Okay, where did it hurt?
A: In my vagina.
CONSTABLE ROSS: Okay, and why was it hurting?
A: Cause I’ve only got a small one.
CONSTABLE ROSS: Yep.
A: And he’s got a very big one, and--
CONSTABLE ROSS: Okay, and when you’re talking about small one, and a big one - he’s got a big one.
A: Mm.
CONSTABLE ROSS: Are you talking about his dick?
A: Yeah.
CONSTABLE ROSS: Okay, so, what did he do, with his big dick, to make your small vagina sore?
A: He tried to open mine and, yeah, then it got hurt and I screamed.
CONSTABLE ROSS: Okay. Alright. So when he’s tried to open yours?
A: Yeah.
CONSTABLE ROSS: How did he try and open it?
A: He just spread my legs and put it open, and then, he put it into me and then, it got hurt.
CONSTABLE ROSS: Okay. So when you say he put it into you, what did he put in you?
A: His dick[14]
…
A: He just only got it half way, cause it hurt then.
CONSTABLE ROSS: Okay. And did you say anything to him?
A: No, I, I was just crying and, crying and, cause I was, I tried to scream.
CONSTABLE ROSS: Yep. Okay. And what happened after he tried to, to put his, his penis into your vagina?
A: He stopped.
CONSTABLE ROSS: He stopped? And what happened after he stopped?
A: He just stopped and gave me 50 bucks after that and then I left."[15]
[14]Page 312 and 313 of record book.
[15]Page 314 of record book.
In cross-examination in the pre-recorded evidence, the complainant said that the events the subject of counts three and four occurred on the day after the events the subject of counts one and two. She was asked to explain how it came about that the appellant put his penis into her vagina and said:
"Well, the following day when I was like playing in the sand, like sitting down next to my relatives, and like - then my dad - no - actually - yeah, I was sitting down next to my relatives playing cards, like blackjack and stuff like that, and then my dad came past the house and said, 'A, we go to the shop', you know usually like what she said – what he says to my sister N, [and] which is WAD's daughter N, and like I was like just sitting down and said, 'Oh, okay then', and he said - and then D wanted to come. He wanted to come for a walk with me. He [like] was - I said, 'No, D, you have to stay here', but then he just started crying and he said - and Dad just said, 'No, just go get him and we'll go', and I said, 'Okay then', and the next minute when we was going up the street we - he just told me to walk in front of him and I was walking and I didn't know what was going on 'cause I was freaking out. [and] I - I just was walking and he said - and then we didn't turn the corner but we just went straight to the -
and I said, 'Dad, where are we going?' and he said, 'Don't matter', and I - I just went ... and then he just - and then I saw the bushes and we was heading for there, and that's it.
Why were you freaking out?-- I didn't know what was going on. I was - I was scared.
Why didn't you run away?-- I don't know. 'Cause if I would have ran then D would have ran after me, and then-----
What, D was two - was two years old, wasn't he?-- Yeah.
And he's your nephew?-- Yes.
Well, you could pick him up, couldn't you?-- Yeah, but that will - like would have slowed me down and hurt my hips.
All right. You could leave D - D behind. He - he – he was - would still be with WAD, is that right, surely?-- Yes.
You didn't have to keep going, did you?-- No. I didn't know what to do. I was just like unable to talk."[16]
[16]Page 69 of record book.
After some detailed cross-examination about the particular area where the complainant alleged that she was raped the cross-examination continued:
"And you say that there was some sand in that area; was there?-- Like rough dirt.
And - and what was D doing?-- He was like playing in the sandpit.
There's a sandpit there; is there?-- Yeah. When they putted the concrete down and stuff.
So, what, there was some sand which was being used for building in that area-----?-- Yeah.
-----somewhere; was there?-- Yeah.
Right. And he was playing in that?-- Yes.
And you - you say that he took your pants down; do you?-- Yes.
Well, what were you doing when this was going on?-- I don't know. I was looking - I was looking in another direction because I - I didn't want to look at WAD.
Well, you must have known that something was happening to your shorts or your pants; wasn't there?-- Yeah, shorts.
Yes, you were wearing shorts; were you?-- Yes.
And - and underpants or is that the same thing? I don't know how you-----?-- Yes.
Well, you must have known that something was happening to your clothing. You felt it surely even if you were looking away?-- Yes, I did.
Well, what did you do?-- I don't know. I was panicked. What would you do?
Well, did you kick him?-- No, 'cause I was scared.
Did you - did you scream out?-- No, I was scared.
Well, did you knee him in the groin? No? Nothing of those things? You see, this didn't happen; did it?-- This did happen.
And was there - was there any words spoken?-- No.
No - no words passed between you at all?-- No.
And here we've got a two year old just playing quietly in the sand and there was some people walking past; was there?-- Yes,
I didn't know who they were.
Well, did you call out to the two people walking past and say, 'Look, there's this man taking my pants off.'?-- No, I was - no, I was scared actually. I didn't know what to do.
Well, you - you could have made a noise and screamed; couldn't you?-- Mmm-hmm.
Well, why didn't you? Why didn't you?-- I don't know.
And then you - you say at some stage that your - your legs were spread apart?-- Yes.
And that was done by WAD, you say?-- Yes.
And you didn't resist at all?—[Yeah….] No.
So you say you did absolutely nothing?-- I did absolutely nothing. I didn't move at all.
Okay. You understand that I - I - this just didn't happen at all. All right. Well, I - okay, don't - it's understood. And then thereafter you - he tried to get you to touch his penis. Is that right?-- Yes."[17]
[17]Page 76 to 77 of record book.
Despite the complainant’s apparent difficulties in expressing herself it was open to the jury to conclude that this evidence seemed compelling, including in particular the complainant’s evidence that “I put it away so fast”, “No it was, disgusting”, “I don't know. I was looking - I was looking in another direction because I - I didn't want to look at WAD”, “He tried to open mine and, yeah, then it got hurt and I screamed”, “He just only got it half way, cause it hurt then”, and “No, I, I was just crying and, crying and, cause I was, I tried to scream.”
Inconsistency in the complainant’s account of the sequence of events
The appellant argues, however, that there was a serious inconsistency as to the sequence in which the events alleged in counts three and four occurred. At the end of the last passage quoted above the complainant agreed with the suggestion made for the appellant's counsel, which appears to reflect the parts of the earlier passages I have highlighted, that the events in count four occurred after those in count three. A little later in the cross-examination this passage occurs:
"MR SUMNER-POTTS: Which happened first; which happened-----?-- The - the - the - the - the - in the bush.
Yes, but both things you say happened at the bush, didn't - don't you?-- Yeah, it did happen but both of them happened in the bush same time.
HER HONOUR: So, A, which happened first; his - when he tried to put his penis in you or when he tried to get you to touch his penis with your hand?-- When he tried to touch his penis - when he tried to make me touch his thing.
With your hand?-- Yeah.
That happened first?-- Yeah.
Okay. Thank you.
MR SUMNER-POTTS: All right. Well, now, he never tried to put your hand on his penis at all, did he?-- He did. He tried.
And you are saying these things in order to get him into trouble?-- I'm not lying."[18]
[18]Page 79 of record book.
This evidence does appear to be inconsistent with the evidence in the earlier passages set out above that suggested that the events in counts 3 and 4 occurred in the reverse order, but the complainant’s evidence was that these two events happened in the course of the same disturbing episode and at much the same time. On her evidence she had tried to forget the events. The relevant evidence was given by the complainant when she was 15 years old and it concerned events that she said had occurred more than three years earlier when she was 12 years old. This inconsistency emerged at the end of lengthy and obviously tiring cross-examination, in which the complainant at times appeared to have difficulty in grasping some of the questions.
In these circumstances, in my view it was clearly open to the jury to be satisfied that this inconsistency did not throw doubt upon the complainant’s evidence that the events in counts 3 and 4 did occur.
Allegation of inappropriate touching at the prison and of an incident in the tent
Incident in the tent
In cross-examination the complainant gave evidence that the appellant had touched her whilst she was in bed in the tent at Aurukun:
"What was the first thing you can remember?-- Well, all as I can remember when I was - I was sleeping in the tent and I don't really know where - I could, like, feel something touching me and there was - when I woke up it was him.
You ever told anybody that before?-- I just only told when I went to an interview in 2006.
So you say [that] that's somewhere in the interview with Peta Ross, is it?-- Yes.
Isn't it that the first thing was that - the first day of school. Was that - was that the first thing?-- Yes.
But - and that was outside, wasn't it? Weren't you in a street?-- Weren't I, what?
Weren't you in a street somewhere?-- In a street where? In Aurukun?
Yes?-- No.
Well, what - what do you say is the first occasion? You say that - you see, there was some touching?-- Yes.
Is that the first thing that you can recall, touching somewhere?-- Yes.
And where do you say that occurred?-- In the private parts.
Yes. Private parts, is it?-- Yes.
That means down between your legs, does it? Is that right?-- Yes.
I see. So that was the first time. Where did that take place?-- In the tent.
In the tent?-- When I was sleeping.
All right. Well, do you remember - where was C?-- I don't know. I can't remember. I think she just went to work."
The appellant argues that the complainant’s conduct in making this allegation for the first time in cross-examination throws doubt upon her evidence of the offences of which the appellant was convicted. In my view it was open to the jury to conclude that it did not have any such effect. In the second and third answers in the passage extracted above the complainant indicated that she had told Ross of this complaint when she was interviewed in 2006. In the first relevant passage in that interview (quoted earlier in these reasons) the complaint commencing by saying:
“Um, um, my father, WAD, he um, he touches me. … And um, he, he touches me and then, he does it to me like, and then after when he’s finished, he gives me fifty bucks.”
In that passage the complainant described both touching and another event (“he does it to me like”) which, in subsequent evidence, referred to rape. Ross then asked the complainant what she was doing the first time “he touched you”. The complainant responded:
“A: When I was, when it was like coming to dark time, like my parents, they were like in one room and um, me and my brother’s in the other room, and … In the morning, when I’m still sleeping, my mum leaves me, my leaves me sleeping, she goes off to work and B goes off with his friends, and I’m there by myself in the tent."[19]
[19]Pages 289 and 290 of record book.
The questions then moved away from that topic. Ross did not return to ask the complainant to say in her own words what, if anything, had happened whilst the complainant was left alone asleep in her bed in the tent, but the questions and answers taken together may well have left the complainant thinking that she had told Ross that the appellant had touched her in her “private parts” whilst she lay in her bed in the tent at Aurukun. Although the complainant did not in fact clearly give such evidence in her first interview, it was certainly open to the jury to accept that when the complainant gave her pre-recorded evidence she believed that she had told Ross that in the first interview.
Furthermore, in my view it was open for the jury to conclude beyond a reasonable doubt that the complainant gave truthful evidence when she said, when pressed in cross-examination, that the appellant had touched her in that way whilst she was in her bed in the tent.
The appellant was not charged with any such offence, but he takes no point in this appeal about the admissibility of the evidence or the terms of the trial judge’s directions about the use the jury could make of this and similar evidence. Rather, the appellant argues that the late raising of this allegation supports his contention that the jury should have had a reasonable doubt about the complainant’s evidence that the charged conduct occurred. I do not accept that argument.
The prison complaint
After the complainant had given that evidence about the incident in the tent, she was again pressed to identify when the appellant had first done something inappropriate:
"You see, when you were asked by Constable Peta Ross about the first one, didn't you say that - there was something – there was something about going for a walk to the shops or something?-- Yes.
Well, is it right that that was the first time that - is that right?-- Sorry.
You see, which is it? The first time, was it - which happened […] first? There's this business that you tell us about when you were in the tent or the first day of school?-- The first time it happened when I was - I - I think I was 11 and - well, dad was still in gaol and we had to visit him in gaol for the first time - at the farm. He was at the farm for the first time, when he moved from the big gaol to the small farm.
Yes?-- And when we got to the farm and when dad came out, and then dad and mum started talking and then - and then, like, dad saw some bulls or something like that, cattle's, I don't know, and then I think dad told mum and B to look and then they were both at the back [like] looking and then he just moved his hand over and - yeah.
And what?-- Started touching me.
And were these other people just right there, your mum and B? They were there, were they?-- Yes, and-----
And this is, you say, all done in front of these
people?-- Yes.
And you didn't cry out or anything?-- No, I just - I was panicking. I just got silent.
Well, you've just made that up on the spur of the moment, haven't you?-- No, I haven't. I just-----
Just while you're-----?-- -----remembered it.
-----while you've been sitting there? While you've been
sitting there you've just made that up?-- No, I did not. I just - I just got it in my head just now."[20]
[20]Pages 28 and 29 of record book.
The appellant argues that because this allegation was made for the first time in this passage of the cross-examination that reveals a serious inconsistency which throws doubt upon the complainant’s evidence of the offences.
There are some features of the evidence that the jury might have thought pointed in the opposite direction. It does not seem inherently improbable that the complainant, who was then about 11 years old, would have panicked and remained silent in the circumstances she described. Whilst she had not made this allegation about the prison earlier in her cross-examination there was no particular reason for her to have done so. The cross-examination started with questions about what had happened in Aurukun in 2004, and when she was later asked about what happened in Townsville that was in the context of questions concerning whether or not some person other than the appellant had inappropriately touched her or whether or not she had complained to the appellant of any such thing (which she denied). This evidence responded to the later question (in the quoted passage above) that pressed the complainant to search her memory for the first occasion of inappropriate conduct by the appellant. Furthermore, the conduct in the prison described by the appellant appears not to have been as serious as the conduct the complainant said occurred at Aurukun and upon which the first record of interview focussed. The complainant’s evidence was that she had tried to put the appellant’s offending out of her mind and it also appeared that she was reluctant to talk about the appellant’s conduct.
In these circumstances, it was plainly open to the jury to conclude that the complainant’s delay in making this allegation did not render it unreliable. However the jury in fact viewed this evidence, it remained open to them to accept the complainant's denial that she had made it up and also that it did not detract from the complainant’s evidence that the appellant had engaged in the conduct described in each of the counts on the indictment.
The complainant's immediate retraction of her complaints to B and C and her refusal of an offer of a medical examination
At the complainant's first interview, she said:
"A: Um, no, I just, then I just like, oh like, when I was like 12, or 11, I had told my brother that, dad was (INDISTINCT) me, and touching me and then, when, B got sick and tired of it, so he told mum, and mum told me to come there, and I was upset and dad was there, and, he was just looking at me and said; was dad touching you and everything? And mum, mum said, like that, and I said, no, ’cause I knew that dad was being, hit me or something like that."[21]
[21]Page 294 of record book.
At the second interview some two months later she made similar statements:
"A: I told my brother first, and, he just got sick and tired of it then he went and told mum, and, mum called out to me and then I went and told her, and then, I said, um, to, (INDISTINCT), um, WAD raped me, and I said, yeah and then she didn’t believed me."[22]
[22]Page 329 of record book.
In the complainant's pre-recorded evidence she agreed with the suggestion in cross-examination that she had told B about the appellant having tried to have had sex with her and she also agreed that she said to B that it made her bleed. She agreed that B told C about her complaint, and that when questioned by her mother she said that the appellant had tried to have sex with her. In the following passage of cross-examination, in which words from C’s statement were put to the complainant, the complainant agreed that she had withdrawn the complaint:
"And then did she say, 'A, how can that be? I want you to tell me the truth. Did he or didn't he? Otherwise I am taking you to the medical centre.' Did she say something like that?-- Yes, I remember her saying that.
So does that help you in remembering the earlier conversation?-- Yeah. No.
It doesn't? All right. And then did you start to cry?-- Yes, I did.
And did you say, 'I don't want to go to the medical centre. I made it up. I'm sorry.'?-- I was panicking.
Why were you panicking?-- I don't know.
Well-----?-- 'Cause-----
-----do you say-----?-- -----'cause I didn't - 'cause I didn't want to go to the medical centre."[23]
[23]Page 23 of record book.
When it was directly put to the complainant that she had made the complaint up she denied it:
"Yes, I did and I was panicking at that time 'cause I didn't know what to say.
Yes, but when you said, 'I made it up', that was the truth; wasn't it?-- No. It wasn't.
And the reason that you were panicking about going to the medical centre was because if you did go people would be able to see that you had made it up, that you weren't telling the truth. Do you agree with that?-- No.
And did your mum say, 'A, you saying that to B and you are saying you made it up can get people in a lot of trouble if things aren't true.' Did she say that to you?—I can't remember.
You can't remember? And when this conversation was taking place was it only you and your mum?-- No, there was a whole family outside of the building.
Whole family?-- Yes, like-----
Whose family?-- My dad's family.
Yes. They were outside; were they?-- No. Yes.
So they weren't part of the conversation; were they?-- No.
No. So really this conversation was between you and your mum?-- Yes.
Yes. And WAD wasn't there; was he?-- He was in the truck, I think.
In the where?-- In the truck.
In the truck?-- In the-----
Some way away?-- No, in the truck beside Mum's car.
So where did this conversation take place?-- Outside of the house.
What? In the front yard or the back yard or-----?-- The front yard."[24]
[24]Page 25 of record book.
This evidence is consistent with the complainant's earlier evidence that C did not believe her complaint. That was particularly reflected in C's words "… how can that be?" The evidence is also consistent with the view that the complainant felt under pressure as a result of the nearby presence of the appellant's family during this conversation.
B’s evidence largely corresponded with that of the complainant. In his interview he said:
"B: I was, I was walking, I came and there’s an island, and I was walking down the island, and she, called me and said; B, come in the tent, I’ve, I’ve got to tell you something.
CONSTABLE GRAHMANN: Yep.
B: And I said; what do you need to tell me, and she said; just, come in the tent, I’ve got to tell you something. Then we went out the back of our tent, and she was whispering to my ears, saying that, he, he had sex with me, and I said; who? Dad, he made me bleed and it’s hurting, and I said, and I said to my sister; wait here, I’m going to go and get mum, and A was too afraid to just, to go to mum cause, she was, afraid at how mum was going to response to what I’m going to say to her.
CONSTABLE GRAHMANN: Mmhmm.
B: And, when mum, I said it to mum, I said; Mum, A, A’s (INDISTINCT), I didn’t say it too loud though.
CONSTABLE GRAHMANN: Yep.
B: I said A’s bleeding, and she said it hurts, and my mum, my mum asked me what happened, she said, and I said, she (INDISTINCT), she had sex with WAD, and, my mum went to go talk to A. Yeah she went to go talk to A, and A was walking half way up to the driveway, and mum called her and said, A can you just come with me for a second? Cause my mum thought she was lying, and my mum was going to take her to the, hospital, she needed to get a, just to check, to check up.
CONSTABLE GRAHMANN: Mm.
B: To see what really happened.
CONSTABLE GRAHMANN: Yeah.
B: And A, and then, A just started crying, and that was it, cause I walked off."[25]
[25]Pages 345 and 346 of record book.
In cross-examination in his pre-recorded evidence B adhered to this evidence and also said that the complainant "was a bit nervous to tell me".
C’s statement included the passages put to the complainant: B told her that the complainant had told him that she was "bleeding and hurting and it was because WAD put his thing in her"; C then called the complainant over to her and said "A what's these things B told me?"; after the complainant glared at B, C told her to say what was going on; and that the complainant told C that the appellant had tried to have sex with her.
The evidence I have so far discussed is generally consistent with the complainant's evidence. The jury might well have concluded on the whole of the evidence that the complainant’s withdrawal of her complaint was attributable to C’s expressed disbelief of it and the complainant’s embarrassment, reticence and fear, and that it did not engender a doubt that it was genuine.
C’s evidence that the complainant said that the appellant tried to have sex with her on the bed in the tent while C was asleep
The appellant particularly emphasises a different part of the evidence. C stated that after she asked when it occurred the complainant said it was “on the bed” and that the complainant said that C was sleeping. The appellant points particularly to the fact that the complainant did not in her records of interview or in her pre-recorded evidence give evidence of any event in which the appellant attempted to have sex with her on the bed whilst C was asleep. In that respect there was an inconsistency.
The significance of that inconsistency must be judged in the light of all of the evidence, including evidence that throws doubt upon the accuracy of C’s evidence. C was not called at the trial but her diary note (referred to in her supplementary statement and also read to the jury) throws doubt upon the reliability of some aspects of her first statement. C’s diary note for Friday 28 May 2004, which C stated was written on that day, gives a rather different version from that in her first statement, and one that does not include any statements by the complainant but which instead suggests that C responded to the statements made by B by entrusting the complainant to the care of the appellant and his family:
"On the way to work B said to me, 'Mum, A has something to tell you.' She wouldn't speak so B said, 'Mum, you know what A said to me last night?' I said, 'What about?' B said, 'A said while I was away on camp Dad came to her every night and he kissed her and had sex with her and she is bleeding.' 'No.' 'And he punched her in the head and she was scared if she did not let him do it he would kill her.' I was in total shock. I stopped the car and went back to the house, got WAD, brought him out to the car and asked B to repeat what A said. WAD told A to get out of the car and he took her to his mum and dad justice group for a talk."
The words “had sex with her” are not necessarily qualified by the words “every night”, and the evidence of the complainant discussed earlier that the appellant “touches” her whilst she was in bed in the tent must be borne in mind. Even so, the note, like C’s first statement, differs in some respects from the complainant’s evidence both as to the particular nature of the appellant’s alleged offending and as to the terms of the complainant’s complaints.
On the other hand the note appears to be a brief summary which reflects C’s interpretation of what B conveyed to her of his understanding of what the complainant had whispered to him. The jury were entitled to conclude that there was a substantial potential for error in translation in the discussion between the two children and in what B told C. The significance of C’s statements must also be assessed in the context of the general consistency between the evidence given by the complainant and by B as to the terms of the complainant’s complaints to him, the apparent inconsistencies between C’s diary note and her statements, and the complainant’s denial in cross-examination that she had told C that the appellant tried to have sex with her on the bed or that she had said that had happened whilst C was asleep.
In these circumstances, whilst there were inconsistencies between the evidence of the complainant and C’s statements and diary note, that did not necessarily require the jury to doubt the complainant’s evidence that the appellant had committed the offences with which he was charged.
C's account that the complainant told her that D was left in an empty house near to the scene of the rape
The appellant argues that a serious inconsistency emerges from C's statement that when on 21 December 2006 the complainant disclosed that she had told her school friends about the appellant’s alleged offending the complainant said that the appellant had “left D in an empty house” (while the appellant took her to the bush and tried to have sex with her).
The complainant's evidence in her first police interview, quoted earlier, was that D was with the appellant and the complainant when they walked towards the shops and that D was "there playing in the sand and yeah". The complainant also said of nearby houses that there was one blue house and there were bushes there, meaning the bushes where she said the rape occurred. The complainant elaborated on this in her second interview, in which she said that D was "in the sand playing with his truck (INDISTINCT) house, it was a blue house, with a fence around it …"[26] In cross-examination in the pre-recorded evidence the complainant said that D was "playing in the sandpit" where "they putted the concrete down" being used for building in that area.
[26]Page 324 of record book.
To detect a significant inconsistency between that evidence and the complainant’s evidence that the appellant left D “in” a house requires the attribution to the complainant of a degree of skill in the use of the English language that she evidently did not possess or exercise.
Complaint to F
F, a cousin of the complainant, was a student at the complainant’s boarding school in 2006. In her evidence in chief she gave evidence of a conversation she said occurred "around Easter last year, 2006":
"Could you tell the Court what she said?-- A was telling me that WAD was raping her at Aurukun when she went for Easter holidays, and she said that WAD was taking her in the room, having sex with her, and then taking her down the back at the scrubs behind at WAD's place, and after she – after he was having sex with her she was paying her $50; and showing A dirty books of ladies, them-----
Did she describe the sort of ladies that she saw that he showed her?-- Yeah, they were naked and holding their vaginas and WAD said to A that her vagina going to be like that, exactly the same."[27]
[27]Page 125 of record book.
When F was asked if she knew where the complainant was living, "where she was from when she was at J College", she answered that "Last she was in Townsville with WAD and C." F also agreed with suggestions in cross-examination that the complainant told her that the events happened in the Easter holidays 2006. In addition to the conflict between that and the complainant’s evidence, the appellant gave evidence that he did not leave Aurukun after the relevant period in 2004. There was no evidence that otherwise suggested that the appellant had any contact with the complainant in Townsville in 2006. It was clearly open to the jury to conclude that F had misunderstood what the complainant had said about the timing.
The substance of the complainant’s complaint as recorded in F's evidence-in-chief coincided with the evidence of the complainant so far as it concerned the allegation that the appellant had sex with her in "the scrubs", showed her an obscene picture and paid her $50. Some of the details differed: for example, F referred to "books" instead of to a picture and she said that the picture showed a lady or ladies holding their vaginas. These differences in detail are readily explicable by the lapse in time and the obvious potential for communication errors, particularly given the complainant's apparent embarrassment, language difficulties and reluctance to talk about the details of the events.
The appellant's argument here focuses upon a passage in cross-examination in which F agreed with the suggestion that the complainant told her that her stepfather (plainly a reference to the appellant, who, according to F, the complainant first named in the conversation) "was blocking her mouth so she – she wouldn't scream" and that he raped[28] her "in the room". F also said that although the complainant did not say how many times the appellant had sex, she did say that he raped her in the room and in the scrub.
[28]Later in these reasons I discuss the complainant's then understanding of the word "raped".
When F’s evidence was put to the complainant she said that she did not recall telling F that the appellant had “blocked her mouth” so that she wouldn't scream, or that he raped her in her room, or that the appellant then showed her dirty pictures and spoke about the ladies’ vaginas in the picture. However, in cross-examination the complainant did give the evidence discussed earlier of the appellant having touched her in her bed in the tent and she also gave evidence of being “unable to talk” during the rape. She referred to her apparent inability to speak to the appellant in other passages in her evidence. For example the complainant said: "He said that he loves me and I said that I hate him, in my head though. I didn't say it to his face." (In many places in her cross-examination the complainant referred to the appellant having told the complainant of his love for her, including in telephone conversations.) She also gave evidence that she was scared of the appellant; that she didn’t know what to do and that "I am not like other girls that scream for help. I am different between them."[29]
[29]Page 45 of record book.
Again, having regard to the obvious potential for miscommunication between the complainant and her school friends it was in my view clearly open to the jury to form the view that the differences between F's evidence and that of the complainant did not throw doubt upon the complainant’s evidence implicating the appellant in the offences with which he was charged.
Complaint to G
The appellant submits that a serious inconsistency is exposed by G’s evidence that the complainant told her that she had been sexually abused by her godfather in Townsville in the kitchen of her home. G did say in her interview with police (which she confirmed in her pre-recorded evidence) that the complainant said that such an event happened in C’s place in Townsville and that the complainant didn't tell her about anything happening in Aurukun. But there are strong grounds for doubting the accuracy or reliability of G’s recollection.
G said in her interview with police in September 2006 that the complainant said in June 2006 that when she was looking after "her niece or nephew" her "step-father found her and started (INDISTINCT) after her". Later in the interview G confusingly referred to a "godfather", instead of a "step-father", but she apparently intended to refer to the same person. (There was also no evidence that the complainant called anyone other than the appellant her step-father or that the complainant called anyone her godfather.) At one point G referred to the same person as the complainant's “step-mother's boyfriend”. She said that the complainant said that the man came into "the kitchen" and started “feeling her and stuff”. G said that the complainant didn't tell her exactly what her stepfather did.
When asked “…when did she tell you this happened?” G answered “last year” (that is, 2005). G might well have understood the question to enquire about the time when the complainant had told her of the conduct, but if so G’s answer contradicted her earlier evidence that the complainant had told her in 2006. If G instead thought that the question enquired about the time of the conduct itself, she immediately contradicted herself when she said in her next answer “Oh she didn’t tell me when it happened.” And G then contradicted herself in consecutive answers to questions asking how many times the conduct happened: first G said that the complainant didn’t tell her (she added, confusingly, that “she’s only told me about it twice”) and then she answered “no” to the question “…did she tell you how many times that her step-father did this to her?”.
The transcript of that interview thus conveys the strong impression that details of G’s evidence might be unreliable.
In G's pre-recorded evidence in October 2007 she said in evidence in chief that she had that morning read through the transcript of her September 2006 interview and she confirmed that what she told police in the interview was true. In a short cross-examination she confirmed her statements that the complainant told her that when she was living in Townsville with C, C's boyfriend touched her in some way, that "he was trying to get on to her", and that there was reference to this happening in the kitchen and no reference to it happening in other places. She added that the complainant did not tell her anything about C's boyfriend giving her $50 or otherwise paying her money.
In cross-examination of the complainant she firmly denied telling G that something had been happening to her in Townsville and she maintained her evidence that she had not been interfered with by any man other than the appellant. In my view, particularly having regard to the indications of the apparent unreliability of G’s evidence, it was plainly open to the jury to accept those denials.
Complaint to E
E gave evidence at the trial that in around Easter 2006 just after returning to the school from holidays, the complainant told her, in a discussion about what she had done on the holidays, that she had been back to Townsville and she added that she hated the appellant. E asked her why she hated the appellant. In her evidence in chief E gave an account which was largely consistent with the evidence of the complainant, saying that the complainant told her that when she was living in Aurukun the appellant took her in a scrub, slipped down her shorts, raped her, went back to the house where they were living and gave her $50. (In cross-examination she said that the complainant had in fact said that the appellant gave her the $50 while she was out in the bush.) She said that the complainant first told her that she threw the $50 away but when E challenged her the complainant told her that she went and bought lollies with it. E also said that the complainant said that on one occasion the appellant, who was camping somewhere in the tent where they were sleeping, walked into the tent and punched the complainant on the head, waking her. E said that when the complainant told her mother about what had happened her mother had said to her "you don't want your father going back to jail".
In cross-examination E agreed that she might have been mistaken in thinking the conversation was in Easter rather than in June 2006. She said that on another occasion (she later agreed that it was in fact in the same conversation) the complainant had told her that she did not want the appellant coming to visit her at the school and that she was upset about that, but she denied the complainant had ever said anything to the effect that she wanted to work out a way of stopping the appellant from coming to visit her.
E also agreed with the question put in cross-examination that after they went back to the house the appellant showed the complainant pictures of naked ladies and their vaginas and said to the complainant that that was what her vagina was going to look like; and that the complainant said that the appellant made her put her hand on his penis although she didn’t want to. E also agreed that the complainant had said that C had told her that she didn’t believe her.
Although that account includes some details not sworn to by the complainant it is largely consistent with the complainant's evidence.
The part of E's evidence upon which the appellant particularly relies as being inconsistent with the evidence of the complainant is in the following terms:
"And she told you, did she, that when she was in Townsville that fellow that C lived was feeling her up as well?-- Yeah. Yes.
And was this in the conversation on the bed at you'd-----?-- Yes.
-----been moved. So the conversation continued then?-- Yes.
Did she say - did she tell you much about that?-- No, not much.
Did she tell you how many times it happened?-- No.
Given you any details about it, but-----?-- But - yeah, she told me that - that fellow what - down in Townsville was giving her money too.
Another $50 was it?-- I can't remember how much she said.
All right. Are you sure it wasn't for $50?-- It was - you or me?
Yes, I'm asking you, not the Bailiff.
HIS HONOUR: He's also only ask you about the conversation you had with A all right?-- No.
MR SUMNER-POTTS: All right. Did she say that she received money from the man in Townsville on several occasions or-----?-- Yeah.
She did?-- Yes.
Okay. So several occasions in Townsville. Did she give you any detail about what she was given the $50 in Townsville for?
HIS HONOUR: She didn't agree it was $50, Mr Sumner-Potts.
MR SUMNER-POTTS: I'm sorry, yes. The money - I'm sorry, my mind's flipped a cog. Did she tell you anything about why she was given money in Townsville?-- Yeah. She said that – that fellow - that guy was feeling her up and doing the same thing too. And the same thing. Was there any detail about that?—Like raping her and stuff.
So it was sex?-- Yeah.
Did she use the word 'rape'?-- No.
What was the word she used?-- Feeling her up and stuff.
Yes, and-----?-- Yeah, and that's it.
Well, feeling her up and-----?-- And giving her money.
Yes, but you - you've included sexual intercourse in that?-- Yeah, putting his penis in her vagina.
Yes. You don't remember the words she used?-- No.
Okay. Did she - she didn't give a name about the man in Townsville, did she?-- No.
Did she say that it was C's boyfriend or something like that?-- Yes.
C's boyfriend?-- Yeah.
Okay. And that's the extent of the conversations you had on
the subject with-----?-- Yeah. -----A?"
In cross-examination of the complainant, she denied that any thing of the kind had occurred at Townsville (other than the conduct of the appellant she said had occurred at the prison) and she denied telling E any such thing. She appeared to be surprised by the suggestion that she had said such things to E. In considering this conflict, the jury no doubt took into account the features of the complainant's language discussed earlier, F’s evidence that she spoke to E about the matters, the obvious potential for errors in E’s evidence to arise in the course of discussion among these school friends, and the length of time between the complainant’s disclosures and the interviews and the evidence. In my view it was open to the jury to prefer the complainant's evidence and E's evidence did not necessarily require the jury to doubt that the appellant had engaged in the conduct in Aurukun of which the complainant gave evidence.
Complaint to H
H was the “house mother”, or boarding house supervisor, in charge of the complainant when the complainant spoke about the appellant to her school friends. H said in evidence-in-chief that around June 2006 F told her that E had told F that the complainant had disclosed "sexual abuse a number of years earlier".[30] Within a couple of days H spoke to the complainant who agreed that this was true. H said that the complainant said that she didn't want to tell anyone because she didn’t want to upset her mum; that she had told her mum but that she did not want the appellant to go to jail again; that "I don't want to – I don't want it brought up I just want to let it go and get on with my life". H said that she recalled the complainant sitting there with tears dripping down her face. H told her that it was a serious allegation that had to be passed to the police. H gave evidence that she made notes of the conversation. The notes were read to the jury:
"MS MEOLI: Yes?—On the 12th of June at approximately 10.30 p.m. F told me that another boarder, E, had told her that A had disclosed sexual abuse by WAD approximately three years ago. This disclosure was on April 18th, the first day of term 2, and E and A spent a few hours in K House alone as they had arrived back to boarding early. E told F, A's cousin, who said she put it away in her mind until the weekend of the 9th to 12th of June when F told her mum L, who urged F to tell me. It was a – It was a few days before I could talk to A, and when I explained the situation, why I needed to talk to her, she said she wanted it left in the past, but I told her how I had to let the police know. A told me that when she was around 11 she went to Aurukun for a family gathering, and it was in Aurukun that she was raped by WAD. This happened a number of times, but A can't remember exactly. She told me more than five times and even more than 10 times. WAD gave A $50 each time to keep her from telling. A did tell her mum though and was asked if she wanted WAD to go back to gaol. A told me that she just wants to put it all behind her, to leave it in the past, as her mother will get angry and upset, and A doesn't want her mother to get angry and upset. … A has not seen WAD since these incidents, but during term 1 he asked to be visited in Cairns Base Hospital – in the Cairns Base, but A did not go to visit. In late May a note came asking A to phone, but she was angry and, to my knowledge, did not phone. Recently, perhaps two weeks ago, a phone call from M came through to admin asking if A could have a visit with WAD when he came to Cairns. I e-mailed C for permission for A, but WAD has not made contact. Given the information from A, I will not permit any visits or contact."[31]
[30]Page 134 of record book.
[31]Page 136 to 137 of record book.
In cross-examination H agreed that about two weeks before this discussion with the complainant she had received a phone call at the school from M enquiring whether the appellant could come and see the complainant at the school. (The appellant gave evidence that he had not sought to visit the complainant at the school.) H believed that she would have conveyed that to the complainant in accordance with her usual practice but she could not recall doing so or what the complainant said about it, although she agreed that the complainant did not say that she hated the appellant.
There are inconsistencies between the complainant's evidence and H's evidence, most particularly in H's evidence, given with reference to her notes, that the complainant said that the appellant raped her more than five times and even more than 10 times and that the appellant gave her $50 each time to keep her from telling.
On the other hand, the jury were entitled to conclude that the notes did not in fact accurately record what the complainant herself said to H on those topics. In cross-examination H agreed that she asked the questions about the number of rapes and that, at least in relation to the question whether it would “be up to five times”, the answer was a nod (rather than in words). Furthermore, there was apparently persuasive evidence that H’s references to “rape” might not have been understood by the complainant. The complainant’s own evidence of the appellant’s conduct was mostly given without using that word. In the complainant’s first interview in June 2006, shortly after the conversation with H, when Ross asked her whether she meant by “rape” that the appellant put her hand onto his dick she said “Yeah, his dick. …he was doing it, and he was, thing-ing me on the ground, and he, he got my hand and then yeah.” When asked what she meant by “thing-ing” she said “…yeah, that word raped.” When asked what she meant by rape, the complainant asked Ross what she thought. Finally, when pressed the complainant said “I don’t know, what that means – raped, or, or anything, and words.”
The complainant denied having said to H that she was raped up to five times, up to 10 times, or even more than 10, or that the appellant paid her $50 for each time to stop her telling anyone. But what she immediately added illustrates how her ungrammatical language was apt to result in miscommunications: she said that “all as I said that when I – when he’s finished with me he just gives me 50 bucks.”
There was clearly a real potential for errors in H’s understanding of the detail of the complainant’s complaints. In these circumstances, whilst the inconsistencies here identified by the appellant deserve serious consideration, I have concluded that they are not such as to have required the jury to doubt the evidence of the complainant of the appellant’s offending at Aurukun.
Other matters
In addition to the particular arguments advanced in counsel’s written and oral submissions, it was submitted in general terms that there were many other inconsistencies or contradictions in the evidence.
Some apparent inconsistencies clearly appear to be the result of obvious language difficulties. For example, at one point the cross-examiner, after saying that the complainant said that the appellant had put his penis in her vagina, asked: “Is that right? Do you? Or do you want to withdraw that?” The complainant answered: “Withdraw”. It is clear, however, that the complainant simply did not understand the question. So much was manifest in the immediately following questions and answers; this presumably explains why the appellant’s counsel did not expressly rely upon this evidence in argument in the appeal.
This general submission for the appellant also presumably includes Dr Haig’s evidence that her nurse recorded that the complainant was “sexually abused by father when she was living with her mother in Aurukun plus or minus three years ago” and that, on 31st August 2006, Dr Haig recorded that the complainant told her that “approximately more than 18 months previously … a man had put his fingers and his penis in her vagina”. There is, in my opinion, no particular significance in the vague periods of time there mentioned, an understandable vagueness in this complainant. The reference to digital penetration (of which the complainant did not give evidence) is more important, but it does not seem to me to be of such significance as necessarily to give rise to a real doubt about the complainant’s evidence.
The appellant might also rely upon another line of argument his counsel pursued at trial. The complainant denied the suggestion put in cross-examination that she made up the stories about the appellant because she wanted to get away from Aurukun and go back to Townsville. She agreed she was happier in Townsville but she said she liked Aurukun as well as Townsville. The jury were entitled to conclude that the evidence of that topic did not suggest that the complainant had any motive to make up her allegations.
The appellant’s counsel at trial also cross-examined the complainant about her admissions that she hated the appellant, but on the evidence the jury were entitled to conclude that the complainant's hatred of the appellant arose only after he had embarked upon the conduct of which she complained in her evidence, that it was readily explicable on that basis, and that it did not cast any doubt on her evidence of his offending.
As is nearly always the case in substantial trials minor inconsistencies can be identified in the evidence, but in the course of reviewing the record I have not identified any further points of such significance as to require discussion.
Conclusions
Viewing the complainant’s recorded interviews with police and her pre-recorded evidence confirms the impression conveyed by the transcript that the complainant’s use of the English language was sometimes imprecise and apt to mislead, she often spoke very quietly (particularly in the earlier recordings), and she appeared embarrassed and reluctant to describe the critical events. But the recorded evidence also conveys a persuasive description of shocking things that the complainant said that the appellant had done to her when she was 12 years old and the complainant’s resulting fear, confusion and embarrassment, particularly when, as she had apparently anticipated would happen, her foster mother did not believe her complaint.
There was no challenge to Dr Haig’s evidence to the effect that the complainant’s vagina had been penetrated sexually in a period that encompassed the time during which the complainant alleged that the appellant had done so. The ultimate question for the jury to decide was whether the Crown had proved beyond reasonable doubt that, as the complainant said and the appellant denied, the appellant had engaged in that and the other alleged conduct.
The jury had the advantage, denied to this Court, of seeing and hearing some of the witnesses give evidence (notably H, F, and E), and that evidence provided part of the context in which the jury were required to assess the critical evidence of the complainant. The appellant has identified some inconsistencies in the evidence and some other matters, not all of which can be discarded as being minor or of no account; but taking into account the individual and overall effect of those matters I consider that it was nevertheless open to the jury to conclude beyond reasonable doubt that the complainant was a truthful and essentially reliable witness doing her best to describe events that had in fact occurred.
Having reviewed the record I am not persuaded that the jury’s verdict was unreasonable. I have concluded that the particular points relied upon by the appellant do not justify that view when taken individually and I also do not consider that they do so when their aggregate effect is considered in light of all of the evidence. In my opinion it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of each of the charges. The appellant does not identify any other basis for impugning the convictions. That being so the convictions should not be disturbed.
Disposition
I would dismiss the appeal.
DAUBNEY J: I respectfully agree with the reasons for judgment of Fraser JA and would also dismiss the appeal.
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