R v YB
[2006] QCA 281
•4 August 2006
SUPREME COURT OF QUEENSLAND
CITATION:
R v YB [2006] QCA 281
PARTIES:
R
v
YB
(appellant)FILE NO/S:
CA No 176 of 2006
DC No 254 of 2005DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
4 August 2006
DELIVERED AT:
Brisbane
HEARING DATE:
14 July 2006
JUDGES:
Williams, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal against conviction dismissed
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where appellant convicted on one count of indecent dealing and acquitted on two other counts – where complainant a child under 16 years of age – where inconsistencies in complainant’s evidence about detail of alleged offences – whether conviction on count 1 inconsistent with jury’s acquittal on counts 2 and 3 – whether complainant’s credibility was undermined – whether verdict was unreasonable
M v The Queen (1994) 181 CLR 487, considered
Mackenzie v The Queen (1996) 190 CLR 348, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, citedCOUNSEL:
R A East for the appellant
M J Copley for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of Holmes JA with which I agree.
Before convicting, the jury had to be satisfied to the requisite standard that the evidence of the complainant was not only truthful, but was also reliable. As Holmes JA has pointed out, the complainant gave a statement to police in which she referred to three incidents, on two occasions prior to trial she gave evidence which was recorded on video, and finally she was cross-examined again before the jury. I have had the advantage of viewing some of the pre-recorded evidence of the complainant and it demonstrated that she was a fairly typical teenager from the Torres Strait Islands. There was obviously not unusual reticence about speaking on sexual matters, and also on occasions a perceived willingness to accept suggestions made by the questioner. Those would have been matters also observed by the jury and would have been taken into account when her truthfulness and reliability was under consideration.
Given that the complainant was questioned on a number of occasions approximately two years after the incidents in question occurred, it is not surprising, given her personality and background, that there were some inconsistencies in her evidence. A jury may well have had little or no difficulty in concluding that she was a truthful witness, but have had more concern as to reliability of her evidence with respect to the particular counts charged in the indictment.
With respect to count 1, initially her evidence was wrong as to the date. But the jury may well have been satisfied that that issue was cleared up, and that there was no significant inconsistency in her evidence as to what the appellant did on the first occasion. The jury may well have been satisfied beyond reasonable doubt that the complainant's evidence with respect to count 1 was reliable.
However, when considering count 2 on the indictment there were so many inconsistencies throughout the totality of the complainant's evidence that the jury may well have concluded that her evidence, though generally truthful, was not sufficiently reliable to enable them to be satisfied beyond reasonable doubt the offence charged had been committed. Holmes JA has fully identified the inconsistencies.
Given those considerations there is, in my view, no inconsistency between the jury convicting on count 1 and acquitting on count 2.
The jury also acquitted on count 3. That, in my view, can be readily explained by the fact that the complainant's evidence was, at best, ambiguous as to where she was touched. Holmes JA has set out extensively the evidence relevant to that issue. On the evidence the jury may well have concluded that the touching was to the leg or thigh in such a way as to not constitute indecent dealing. For that reason I do not consider that there is any necessary inconsistency between the conviction on count 1 and the verdict of not guilty on count 3.
Counsel for the appellant, who was counsel at trial, sought to make much out of the complainant's evidence with respect to the alleged presence of an X-Box at the time the first offence was committed. But as Holmes JA has pointed out, the complainant's initial statement was only to the effect that her two young cousins were in the room playing a game; she did not know what the game was. As Holmes JA has pointed out, it was during cross-examination, when evidence was pre-recorded in October 2005, that defence counsel put to her that the boys were playing an X-Box game to which she replied "Yes". Thereafter the questioning proceeded on the basis that the complainant was contending that her cousins were playing an X-Box game at the material time. At trial the defence led evidence strongly suggesting that the X-Box game had not been acquired at the time count 1 occurred. That was said to seriously undermine the complainant's creditability. But, as Holmes JA has pointed out, given that the complainant only adopted the defence proposition that the boys were playing an X-Box game, when she had previously said she did not know what game they were playing, the jury could well have concluded that her evidence was not undermined by her adoption of that proposition. As I pointed out earlier, the demeanour of the complainant revealed by the video was such that there was a tendency to adopt as correct, propositions put to her by a person whom she perceived to be in authority.
In all the circumstances I agree with Holmes JA that there was no inconsistency in the jury's verdicts, and the jury was entitled to be satisfied beyond reasonable doubt that the complainant's evidence on count 1 was truthful and reliable so that a verdict of guilty could be returned.
I would dismiss the appeal against conviction.
JERRARD JA: In this appeal I have read the reasons for judgment of Williams JA and Holmes JA in draft form, and respectfully agree with their reasons, and the order proposed by Her Honour. I note that counsel for YB on the appeal, who was counsel at the trial, made no complaint that the jury were not clearly told the alleged dates of the offences, and was content that it was made clear that counts 1 and 2 were said to have happened in early November 2003, and count 3 in September 2004. Further, counsel had no complaint that the jurors were not given the particulars of the offences alleged by the Crown. Accordingly, this Court can be satisfied that the dates and particulars of the alleged offences were clearly before the jury, and the jury was satisfied that count 1 had been proven beyond reasonable doubt.
HOLMES JA: The appellant was convicted of one count of indecent dealing with a child under the age of 16 years after a trial on an indictment which contained three such counts. He appeals his conviction on the ground that the verdict was unreasonable. His counsel argued that there were inconsistencies in the complainant’s evidence which should have raised a doubt and also that the conviction (which was on count 1) was inconsistent with the jury’s acquittal on counts 2 and 3.
Background
The complainant, M, who was born in May 1990, was the appellant’s niece by marriage. She had been sent to stay with him and his family on two occasions while she attended school on Thursday Island; the Torres Strait island where her mother lived had no high school. The first such period lasted, as the evidence eventually revealed, for about ten days in November 2003. It came about when the aunt and uncle with whom M had been living on Thursday Island flew to Cairns to be with her grandfather, who became ill on 4 November and was transferred there for treatment. During their absence, their son, J, and M moved to the appellant’s house. The appellant’s wife and the eldest of his three sons went with the other family members to Cairns, leaving on 4 November. By the time they returned on 16 November, M had gone back, two or three days earlier, to her mother. During her stay at the appellant’s house, the other residents were the appellant; his younger sons aged about ten and eight; J, who was about fifteen; M’s great-grandmother, who was in her nineties; and, until 9 November, (when she too left for Cairns) M’s grandmother.
M returned to live in the appellant’s household in August 2004. She had left various other relatives’ homes after a series of disruptions and disagreements. She spent the two weeks of the school holidays at the end of September at her mother’s home, returning to the appellant’s house on Thursday Island on Monday 4 October and resuming school on 5 October. According to her mother, M had been very reluctant to leave her home island, but she had compelled her return.
The emergence of the complaints
On her return to school, M and her classmates were shown a video about sexual abuse. M confided in two friends (to one of whom she seems also to have made an earlier, undefined complaint) that she had been indecently touched by her uncle. They took her to the school nurse on 6 October. M told the nurse that her uncle was “touching her sexually” and when asked to explain what that meant, said that he had touched her on the breast and on the bottom, but that there had been no penetration. She was asked to write down what had happened, and she recorded that “before Easter holidays” she had been sent to stay with her uncle while her grandfather was ill. As to what her uncle had done, she said –
“One day in the afternoon he just came up to me and started touching my bottom and my breasts. His wife wasn’t there because she had to fly down as well.
During then & now he’s been still doing these things but not all the time.”
M’s disclosure led to an interview by a police officer on the same day. In that interview she described the occasions which gave rise to the three counts on the indictment.
Count 1
As to the first incident (the subject of count 1, on which the appellant was convicted) M said that it had occurred in the afternoon on a weekday, before the Easter holidays. Her aunt was not there because she had gone to Cairns, her grandfather being sick. She was in her cousin’s room, sitting on the bed. Her uncle touched her legs first; she moved away, but he came closer. He touched her, through her clothes, just above her bottom and on her breasts. He then put his hand in her shirt and rubbed her breasts, on the inside of her brassiere. The incident ended when she said she had to go outside; her uncle let her go. Her two young cousins were there but had not seen what her uncle did:
“… we were like sitting at the back and they were in front of him. They were playing a game …”
When she was asked “You don’t know what games they were playing?” she responded “No”.
M gave evidence recorded in advance of trial on two occasions, in October 2005 and April 2006, as well as at the trial in June 2006. During her cross-examination on the first of those pre-recordings, some effort was directed to establishing a time frame for her allegations in respect of count 1. In particular, she was asked to reflect on just when in the first school term of 2004, starting at the end of January and running until April, the events occurred. Her response was that it was when her grandfather was sick and in hospital in Cairns, but she could not remember the dates. She had a diary which was at her mother’s home, but she had not written anything in it about the events in question, and she did not know if she still had it. When it was directly put to her that the events could not have happened in the first term of 2004, because her grandfather was not then in hospital, she said she had got the dates wrong; she had, since the interview, checked with her mother and had established that her grandfather was ill in October 2003. (Subsequently, in cross-examination at the trial, M accepted that her grandfather’s heart attack in fact had been on 4 November 2003.)
Crucially, during the October 2005 cross-examination, M was asked about her description of events to the police officer who interviewed her in October 2004. This passage was put to her:
“Do you remember you told the policewoman that the first time something happened to you, you were in a bedroom with your Uncle [YB] and his two sons [E and T]? --- (Witness) Yes.
And they were playing an X – an X-Box game? --- (Witness) Yes.
And you told the policewoman that your Uncle [YB] touched your legs and then your bottom and then your – your breasts. Do you remember telling her that? --- (Witness) Yes.
This was the first reference to an X-Box game. (Defence counsel, a barrister of considerable experience and undoubted integrity, had, as he conceded in arguing the appeal, somehow formed the mistaken impression that the police interview contained a reference to the boys playing, not just games, but an X-Box game; probably as a result of confusion of his instructions as to what any game was likely to have been with what M had actually said.) Counsel returned to the subject later in the cross-examination, after establishing that M’s recollection as to date was faulty:
“And on this first occasion are the two boys still in the same bedroom? --- (Witness) Yes.
Playing X-Box? --- (Witness) Yes.”
Defence counsel went on to describe the bedroom in terms which M accepted: it was a fairly small room with two single beds and a TV cabinet containing the television and the X-Box at one end, with a chest of drawers at the other. M agreed that she and her uncle were sitting on the bed watching the boys play games. Her grandmother might have been in the house at the time. Her uncle had started touching her legs and then just above her bottom on the outside of her clothes. Then he began to rub her breasts, first on the outside and then on the inside of her brassiere. J was not home, and the boys had not noticed what was going on. She was able to bring the incident to an end by telling her uncle that she had to go outside.
M was required to give evidence again in April 2006, in another recorded session. She was asked a series of questions about her diary, which she said she had been unable to find; she thought she might have thrown it away. She rejected the proposition put to her, that she had got rid of it because it did not support her account of her uncle’s touching her in late 2003, maintaining that the diary had nothing to do with it. She was also asked about the reference in her handwritten note to her uncle’s “still doing these things”. She said that there had been other occasions when she had been touched, but she could not remember the detail.
The questioning then returned to the X-Box, again suggesting, wrongly, that she had alluded to the X-Box in her original interview.
“Now, do you remember that when you spoke to the policewoman in that taped interview, you told her that so far as the first and the second incident were concerned, you and Uncle [YB] were both sitting on the bed? --- Yes.
And you and him were watching his two boys playing X-Box? --- Yes.
And you say that while the two of you were sitting on the bed, you were watching the boys playing the X-Box machine --- ? --- yes.
--- and you’re behind them. Correct? --- Yes.
And – and I take it that you were siting on the bed with Uncle [YB] for – for some period of time before you say he touched you? --- Yes.
But those propositions accepted by M were then the subject of challenge:
“Now, this X-Box machine that the boys were playing, you’re quite definite that the first time something happened it was in the bedroom, and you and Uncle [YB] were watching the boys playing X-Box? --- Yes.
And whenever that second time was – whether it was the same day or a couple of days later – once again you’re in the bedroom watching the boys playing X-Box? --- Yes.
And according to the evidence that you’ve given that had to have happened when your granddad was in hospital in Cairns? --- Yes.
And you think that was in October 2003? --- Yes, I’m not too sure.
All right. Whether he was in Cairns in October of 2003 or November of 2003, you have that definite memory --- ? --- Yes.
--- that the boys were playing the X-Box ---?--- Yes.
--- machine? Well, I want to put you, M, that it is impossible that that happened because the boys did not have an X-Box machine until New Year’s Day of 2004? --- They did.
Mmm. You’re sure about that? --- Yes.”
The defence case at trial included convincing documentary evidence that the X-Box had not in fact been bought until December 2003; there was also evidence that a Playstation the family owned had not been in working order for some months.
Count 2
The evidence which gave rise to count 2 is particularly confused. In the October 2004 record of interview, M said that her uncle had touched her on the “noonoo” (a word, she said, she used for her “private parts”) on the same day as the incident giving rise to count 1, again in her cousin’s room, with the boys there. She did not know how long after the first instance of touching this occurred; it was in the afternoon and it was before she had told her uncle she had to go outside. Later in the interview, however, she said it was not on the same day, but a couple of days later. After twice saying, in answer to specific questions, that the touching was on the outside, not the inside, of her underpants, she went on shortly after to say that he had put his hand inside her shorts and her underpants and had rubbed her noonoo. Later in the interview she reiterated that her uncle had touched her both outside and inside her underpants.
When cross-examined in October 2005, M maintained that the second incident occurred on a different day from the first. It was, however, in the same room, and she agreed with defence counsel’s suggestion that the two boys were there, once more playing with the X-Box. On this occasion, she said, both she and her uncle were sitting on the floor. Her uncle lay on his stomach with his head on a pillow just in front of her and asked her to look in his hair for lice. While she was examining his head, he started to rub her noonoo on the outside of her shorts, which were about knee length, and then moved his hand up inside them to rub inside her underpants. The incident ended when she said she had to go to the toilet. In April 2006, defence counsel returned in cross-examination to the timing of that incident. He asked M which account was correct - whether it had happened on the same day as the first incident or a couple of days later; she responded that she could not remember.
Count 3
The police officer in the October 2004 interview asked M which was the last time her uncle had indecently touched her. In response, M described the incident giving rise to the third count. She said that it occurred one or two weeks before the September holidays, in her great-grandmother’s room. Her great-grandmother was out of the house at the time and her three cousins were in another room playing a game. Her uncle was lying on the bed, stomach down, and asked her to rub his sore shoulder. As she did so, he put his hand back and began to touch her. The first set of questions and answers as to the sequence of what he did is as follows:
“Okay. Now what type of touching was he doing? --- Um, yeah, rubbing my legs.
Okay, so when you said you were rubbing his shoulder, what was the first thing he did after that? --- Um, he just laid there first.
…
And how was he lying? --- Belly down, yeah.
Belly down. Okay, so how did he touch your legs? --- Um, he just put his hand back and he started rubbing my legs.
Okay, what part of your legs? --- Um, my thighs.
Okay, what part of your thighs? --- Um, the outside – like outer part.
The outside. Was that on the outside of your clothes? --- Yeah, then he started putting his hand in my shorts.
…
So when you said he put his hands in your shorts, what did he do? --- Yeah, he just started rubbing my thighs, yeah.
Okay, and did – where else did he rub? --- Just there.
Okay, did he do anything else? --- No.
Anything else happen that day? --- No.
The conversation is recorded only on audiotape. The answer “Just there” in transcript form is ambiguous: M might have been physically indicating some other area of her person as she spoke. But the tone of the answer, as it can be heard in the tape, and the police officer’s failure to take it any further suggest that M was saying that her uncle had rubbed only her thigh area.
The investigating officer then returned to the incidents the subject of counts 1 and 2, exploring them in some detail. After a break in the recording she returned to count 3:
“Can you just tell me a little bit about that again? --- Yeah. Um, he said that his shoulder was sore and ----
Yeah? ---- he asked me if I could – yeah, rub it down, and stuff. So I did it.
Yeah ? --- And – yeah, he was laying down on the bed, and – yeah – um, and then he just like put his hand back and started touching my legs. Yeah.
And was that on the outside, or on the inside -----? -- Um ---- of clothing? --- Inside of clothing.
Okay, So um can you remember what you were wearing? --- Um, shorts – yeah – and [indistinct].
Were they loose shorts or tight shorts? --- Um, loose.
Loose shorts. Okay. And how did he touch you then? --- Um, yeah, he just put his like hand inside my short and started rubbing there.
Okay. So what part of the shorts? --- Um, the inside – yeah.
Okay, But what part of the shorts did he put his hand up? --- Oh, like – yeah, bottom part.
The bottom part. Okay. And what did he do when he put his hand up the shorts? --- Um, yeah, he just started rubbing my legs.
And what part of your leg? --- Um, my thighs.
Okay. Um, can you show me whereabouts ---- ? --- Yeah.
---- on the outside? --- There.Okay, And – and what else happened? --- Um ---
Anything else happen? --- No. He just – yeah – then he started touching my bottom and – yeah.
Okay. And what part of your bottom? --- Yeah, at like the [indistinct].
Okay. And was that on the outside or the inside of your clothes? – Um, first it was outside, then it was inside.
And did anything else happen? --- Um, no.”
When cross-examined about the count 3 incident in October 2005, M said that she had been cleaning her great grandmother’s room when her uncle came in, lay down on the bed and asked for his shoulder to be rubbed. She had not been able to stop him from touching her bottom on the inside of her shorts. She said that she had kept rubbing his shoulders meanwhile. The incident lasted for about a minute. She could not remember what had brought it to an end.
The complainant’s account to her friends
The two school friends, A and L, to whom M had reported what had happened to her, were interviewed about her complaint on 7 October 2003. A said M had told her that the man in question had asked her to check his hair for lice and then put a hand in her shorts and touched her on her private parts; he also touched her breasts outside her clothes. This had happened in the lounge of the house while the two boys were asleep. A seemed to say that M had told her one incident of indecent touching had occurred before the end of the preceding term and another on “Tuesday”; but the interview tape is indistinct and the questioning ambiguous. It is not entirely certain that A is saying that there was an indecent assault on Tuesday, as opposed to that it was on Tuesday (the day the sexual abuse video was shown) M told her she had been assaulted. M had also told A before the previous holidays of an incident; she had advised her to tell her mother.
L reported that M said the man had “fingered” her; she appeared to be indicating that it was in the preceding school term. Both girls were cross-examined during a pre-recording of their evidence in June 2006, but were, unsurprisingly, vague in their recollection of what they had been told two years earlier. L maintained, however, that M had used the word “fingered”. (The complainant, when cross-examined on the subject, denied that she had told anyone she had been “fingered”, an expression which, she agreed, she took to mean insertion of a finger into the vagina.)
The defence case
The appellant and three other witnesses gave evidence in the defence case. The appellant denied any inappropriate touching of the complainant and said also that he had never asked her to give him a massage or to check his hair. When M stayed at his house in November 2003, she usually came home late from school. (M agreed, in cross-examination at the trial, that she was regularly home late, often spending the afternoon alone in the house of the aunt and uncle she had previously lived with.) On the other hand, the appellant said, M’s cousin J, whom he collected from school, was always with him in the afternoons. He maintained, in fact, that he had never spent any time in company with M, who was always “doing her own thing”.
J, who, like M, had stayed with the appellant for two weeks in November 2003, confirmed that M used to come home late from school, around 6 o’clock in the evening. The earliest he could remember her coming home was after 4 o’clock; although it was possible that there might have been occasions when he was not there that M had come home around 4 o’clock. When he came home from school he would play cricket with his uncle or go out in his uncle’s boat.
M’s grandmother gave evidence that M made a habit of getting home around 5 o’clock. During the five days or so that she had remained at the house after M’s arrival, she had seen nothing out of the ordinary. M talked to her about school and said to her on a couple of occasions that she wanted to live with her mother, not on Thursday Island; she had said something similar again in 2004. (M agreed that she had, in 2004, wanted to live with her mother and study by correspondence, but denied saying as much to her grandmother.)
The appellant’s wife had, of course, been away in Cairns at the time of the incidents giving rise to counts 1 and 2 on the indictment, but had been at home in August/September 2004. She had been working during the day while her husband stayed home as a carer for her invalid grandmother. She had not noticed anything untoward in the relations between her husband and M.
The summing up
No complaint is made of the summing up. The learned trial judge told the jury that the case depended on the credibility of the complainant. He pointed to the absence of corroboration for M’s evidence, explaining that her complaints were not independent evidence but that any inconsistencies between them and her evidence in court could cause them to have a doubt about her credibility. He gave a Markuleski direction, telling the jury that if they had doubts about M’s evidence in respect of a particular charge, it should be borne in mind in considering the other counts; and also instructed them that if they had doubts about what she said about uncharged acts, that too could be taken into account in considering her evidence in relation to the charges. He reminded the jury of the inconsistencies in M’s account relied on by the defence; in particular, he told them that if they accepted there was no X-Box or operable Playstation in existence at the relevant time, they might consider that threw considerable doubt on M’s evidence in relation to the first two counts.
The appellant’s arguments
There were, essentially, two aspects to the appellant’s argument that the verdict was unreasonable. The first was that the conviction on count 1 was inconsistent with the acquittal on count 3. It was explicable, counsel said, that the jury had acquitted on count 2, because the evidence was so confused. But the acquittal on count 3, where M’s evidence was relatively straightforward and consistent, could only be the result of an adverse view of her credibility. This led to the second limb of the appellant’s argument: that the jury should, in any event, have entertained a reasonable doubt as to the appellant’s guilt because of many inconsistencies, both within M’s evidence and as against the evidence of other witnesses.
Counsel for the appellant explored what were said to be areas of inconsistency or improbability in M’s evidence which should have caused the jury to reject her account; each of those areas, it might be said, was outlined in his address to the jury at trial. He placed particular emphasis on the contradiction of M’s testimony that her cousins were playing an X-Box game when the events the subjects of Counts 1 and 2 occurred. And M, he said, had become aware that her timing of those events as happening in 2004 was wrong, but had said nothing to correct matters until it was raised with her in cross-examination.
There was a number of inconsistencies in M’s evidence in respect of count 2: as to whether the incident had occurred on the same day as that giving rise to count 1 or a few days later, and whether she had been touched inside or outside her underpants. In her account to her school friend A, she had said that the incident when she checked her uncle’s head for lice happened in the lounge room while her young cousins were asleep. M had, it was said, told A that the last indecent touching had occurred on the previous Tuesday (which would be 5 October), but had maintained in her evidence that the last assault had occurred in the week prior to the September school holidays. And M’s denial of insertion of anything into her vagina conflicted with L’s recollection that M said she had been “fingered”.
It was improbable, given the background to count 1, that M would have allowed herself to be in precisely the same circumstances, with the appellant again in her cousin’s bedroom, on the occasion giving rise to count 2. She had failed to utter any protest at the prospect of returning to the appellant’s house in 2004, despite the earlier assaults. Counsel also suggested that M’s claim that she could not find her diary and her inability to provide any further detail of the uncharged acts – her reference in her handwritten note to her uncle’s “still doing these things” – ought to have affected her credibility.
Inconsistent verdicts?
The test for whether there is an inconsistency between jury verdicts such as to render a conviction unsafe is “one of logic and reasonableness”;[1] but the respect to be accorded a jury verdict is such that –
“if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury”.[2]
[1]Mackenzie v The Queen (1996) 190 CLR 348 at 366.
[2]Mackenzie, at p 367.
In this case, I consider that there was sufficient difference between the evidence on counts 1 and 3 to explain why the jury might have reached different verdicts. M’s account to the school nurse on 5 October 2004 was of being touched on the breast and bottom. The jury would have been justified in regarding it as relating to count 1. It was also before them in a documented form, the note M wrote for the school nurse in October 2004. The fact that the account to the nurse and, more particularly, M’s note, dealt only with the acts the subject of count 1 may have led the jury to the conclusion that it was the incident which was clearest in M’s mind when she first spoke of the events, and hence the one on which they could place most reliance. And her account was specific and consistent, when it was given in interview and cross-examination, as to the sequence of events: first the touching of her legs, then just above her bottom, then her breasts, first on the outside of her clothes and then on the inside.
But the jury would have been entitled to conclude that M’s account on count 3 was not as reliable, while not necessarily untruthful. The audiotape of the interview is open to the view that when M was first asked about the incident giving rise to count 3, she confined her description to the rubbing of her thighs, specifically disavowing any further touching. When the subject was returned to later in the interview, again, initially the only part of the body mentioned was her thighs; the reference to a touching of her bottom first outside and inside her clothes seems to have emerged as an afterthought. Having regard to the way M’s account evolved through the interview, the jury would have been justified in finding it more likely the product of an uncertain recall, and suggestive, perhaps, that as the interview progressed, M was beginning to confuse and conflate different incidents. The decision to acquit on count 3 while convicting on count 1 poses no affront to logic; and it does not demonstrate that the conviction on the latter count was unreasonable.
M’s credibility generally
I do not think it inevitable that M’s credibility would have been affected by her inaccuracy in alluding to the X-Box as having been there in the house in 2003. That notion, plainly enough, had been planted in her consciousness by the defence’s suggestion, not only that it had been there, but that that had been her actual recall in the earlier police interview. In effect, the defence set up the construct; the fact that it was then able to demolish it is not, in context, particularly striking. And M’s omission to correct the dates when the events underlying counts 1 and 2 occurred assumes, in my view, little significance when one considers that she had consistently made it clear that she placed those events in time by reference to her grandfather’s illness, not the calendar.
As to other matters that should, it was suggested, have had a significant impact on the jury’s view of M’s credibility, her confused recounting of the events giving rise to count 2 was not surprising, a year after their occurrence. Nor was her inability to isolate the uncharged acts necessarily damaging, considering that they were, by her account, neither unique nor regular. Her failures to complain earlier, to avoid her uncle, or to object to returning to his house in mid-2004 are not particularly telling, given her age and the family context in which the events had occurred. Nor did the absence of her diary, even assuming she had disposed of it, point very convincingly to any conclusion. She had never suggested that there was in it anything relevant to the case; it would be pure speculation to suppose that it, or its unavailability, had any significance.
It was open to the jury to attribute the apparent discrepancy between M’s evidence and what the witnesses, A and L said they had been told by her, to deficiencies in their recall or understanding of what she had said, rather than necessarily reflecting on her credit or reliability. And as I have already noted, it is far from clear what A was saying when she alluded to “Tuesday” in the interview; whether she meant she had been told something then or whether she meant she had been told something happened then.
All of these matters were, in any case, raised by defence counsel with the jury, who were reminded of them by the learned trial judge in his summing up. None was momentous. Having seen and listened to the interview and evidence tapes of M and the witnesses A and L, I do not think that this is a case in which M’s evidence
“lack[ed] credibility for reasons … not explained by the manner in which it was given”.[3]
The jury, of course, saw all the witnesses, including the appellant; they were not, it seems, swayed by his evidence.
[3]M v The Queen (1994) 181 CLR 487 at 494.
Conclusion
In my view it was open to the jury on the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt on count 1, while giving him the benefit of the doubt on the remaining counts. I would dismiss the appeal against conviction.
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