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R v CCL

 

[2019] QCA 280

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCL [2019] QCA 280

PARTIES:

R

v

CCL

(appellant)

FILE NO/S:

CA No 218 of 2018

DC No 1385 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 3 August 2018 (Sheridan DCJ)

DELIVERED ON:

3 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2019

JUDGES:

Sofronoff P and Morrison JA and Buss AJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – GENERALLY – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged and convicted on three counts: count 1, indecent dealing; and counts 2 and 3, rape – where the complainant told police she was about six or seven years old when the appellant first sexually abused her – where the appellant resumed abusing the complainant when she was about 10 years old – where the abuse occurred regularly from when the complainant was aged about 10 years old until shortly before her interview with police – where the appellant challenges his conviction on the sole ground that the verdicts are unreasonable and cannot be supported having regard to the evidence – where the appellant contends that the verdicts were unsafe – where it was submitted that there were a number of defects in the complainant’s evidence – where it was submitted that the reliability of the evidence was compromised because it was extracted from an unwilling child – whether the verdicts are unreasonable and cannot be supported having regard to the evidence – whether the verdicts were unsafe

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v PBA [2018] QCA 213, cited

COUNSEL:

P J Callaghan SC for the appellant

D Balic for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Morrison JA.
  2. [2]
    MORRISON JA:  The complainant (COM) was the appellant’s step-daughter.  After her mother and the appellant separated COM continued to see the appellant every second weekend.
  3. [3]
    COM told police that when she was about six or seven years old the appellant first sexually abused her, by making her rub his penis and his starting to rub her vagina.  The next time anything occurred was when COM was about 10 years old: he rubbed her vagina, placed his penis in her mouth, and tried to insert his penis into her vagina.  COM said this happened regularly, but the last time was shortly before her police interview.
  4. [4]
    The appellant was charged on three counts: count 1, indecent dealing; and counts 2 and 3, rape.  He was convicted on all three counts.
  5. [5]
    The appellant challenges his conviction on the sole ground that the verdicts are unreasonable and cannot be supported having regard to the evidence.

Legal principles

  1. [6]
    The main ground of appeal was that the verdict was unsafe.  The principles governing how that ground of appeal must be approached are not in doubt.
  2. [7]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
  3. [8]
    In M v The Queen the High Court said:[2]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

  1. [9]
    Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.[3]  As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[6]  The High Court said:[7]

“With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”

  1. [10]
    Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:

“The question is not whether there is as a matter of law evidence to support the verdict.  Even if there is evidence upon which a jury might convict, the conviction must be set aside if ‘it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.  The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”

Evidence at the trial

  1. [11]
    Evidence at the trial came from a variety of witnesses.  COM’s evidence was in the form of a recorded police interview admitted under s 93A of the Evidence Act 1977 (Qld), and pre-recorded oral evidence admitted under s 21AK of that Act.
  2. [12]
    There was also evidence from COM’s mother (MUM), COM’s biological father (DAD), COM’s aunt (RNT)[9], the appellant’s wife (WYF), and a paediatrician.

COM’s evidence

  1. [13]
    In her police interview COM started by saying the appellant had “started abusing me”, and when pressed to say what that was she wrote the word “sex”.  She then explained that the appellant was “taking rights” which she explained as him taking sex.  She went on “He’s taking that, and he’s making me do it to him”.[10]
  2. [14]
    COM said that, “First he grabbed my hand and made me touch his private”, then “Second … he tried doing it to me, you know like, the normal way.  He tried doing it that way”.  She then said “The next one I’m not going to say, it’s too embarrassing”.[11]  Encouraged to describe it COM said, “You know a boy’s thing in a girl’s mouth, imagine those connect”, and clarified she was talking about a boy’s privates.[12]  Shortly thereafter she identified the privates as a “dick”, which she said she knew was used for peeing and sex.[13]

The “last time”

  1. [15]
    COM was asked to address the last time the appellant did it.  She said, “Last time he did it … what you’ve just written down is what happened the last time and all the other times … that’s basically all I know from the last time.  What I remember from the last time”.[14]
  2. [16]
    Later in the interview COM identified the last time as having occurred on “the last second weekend”, meaning the last occasion of the second weekend visit.[15]

The “first time”

  1. [17]
    COM was then asked to describe the first time it happened.  She described an incident when she was watching a movie while she and the appellant were under a blanket, and the appellant “started rubbing me”.  He then “grabbed my hand made me rub his genitals”.[16]  She went into further detail: “He just sneaked his hands over and started rubbing me in the crotch … going up and down”.[17]  She identified her crotch as her vagina.[18]  The rubbing was on top of her leggings, then under them but on her underwear.[19]
  2. [18]
    Shortly thereafter COM was asked for more details as to what happened the first time.  Her account was, again: before he touched her on her underwear the appellant grabbed her hand and made her touch his penis, going up and down;[20] his penis was sticking up, which she described as him “getting a boner”.[21]  He was wearing boxer shorts which were slid down.
  3. [19]
    That was all that happened and COM said she went to bed.  She told the appellant she could not sleep after what happened and the appellant apologised to her.[22]
  4. [20]
    COM drew a plan of the area where the events happened, including where she and the appellant were.  She also described the blanket and what she was wearing (leggings and a Pooh Bear top).  She also described the appellant wearing a grey woman’s night gown with a pink sparkly tiger on it.[23]  She said all the others in the house were asleep at the time.
  5. [21]
    COM said that recalling the events was “a hard memory”.[24]  She thought the first time was when she was young, about six or seven, when she was in grade two or three.[25]

The second time

  1. [22]
    After recounting what she recalled of the first time, COM was asked about the next time something happened.  She said it stopped for about a year or two and then restarted when she was ten.[26]  She said the appellant “started doing the actual thing to me, started rubbing me … he made me rub him and then he made me …”.  He pulled her underwear down and started rubbing her.  She went on: “And then he actually started doing the actual thing to me”.[27]  He pulled her pants and underwear down, rubbed her vagina, then, responding to a question as to what “the actual thing” was, she said “he just started actually having sex with me”.[28]
  2. [23]
    At that point of the interview COM asked for a break.  When the interview resumed she asked “How much more information do you need?”, adding “… because that’s all I told you, I just told you all my information”.[29]  It was explained that the interviewer needed to ask further questions, and COM said “… he made me suck his cock... He made me suck his dick”.[30]  Later in the interview she was asked to explain that; she said “He just grabbed my head and put it near his crotch”, but she said she did not want to talk about that part, which was on the second time.[31]
  3. [24]
    COM explained that when she said the appellant started the actual thing, she meant the appellant was “trying to put it in me’, but “it was too big”, and “that’s when everything stopped”.  He was “trying to put his dick” into her vagina.[32]  She said he lifted her up and put her on his lap, and “that’s when he tried to put his cock in me, and it didn’t fit …”.[33]  She then said that she did not want to talk about it, but when pressed she said the “my thing was too small”, he was trying but gave up, and it was painful, “painful to feel something like that, that big put into you”.[34]  She made it clear she meant the appellant putting his penis in her vagina.[35]  She said she knew it was his penis because she could see it and it was sticking up.[36]
  4. [25]
    Shortly after that COM said that “you drag me out of information … The information is now stopped”.[37]  However, she said the second time happened when she was about 10, when she was in grade four.
  5. [26]
    The interviewer and COM agreed to label the first time as the blanket time, and the second time as the T-shirt time.[38]  She was then asked to remember another time she next best remembered.  She answered “The same thing happened, really. … All the other times, the same thing just happened. … Everything you’ve just written down is what happened all the other times.”[39]
  6. [27]
    COM was taken back to the second time again.  She said the sequence was: rubbing her; making her rub him; making her suck him; and then trying to put his penis in her vagina.  Pressed again about the sucking, COM said “I really don’t want to talk about that part.  I don’t think anyone would rather talk about that part. … I still don’t like talking about it.”[40]  The interviewer asked her to explain if she wanted to.  COM said; the appellant grabbed her head and put it near his crotch; “and he’s just planted his dick in my mouth”; he put her on the floor, “And I was just bending down ... and he just puts his dick in my mouth”.[41]  She said it went on for a minute and she was choking “… ‘cause it’s a big thing to put inside someone’s mouth”.[42]  She described the relative positions of herself and the appellant, with her on the ground between his legs.[43]
  7. [28]
    COM was asked about the next time and she said “All the other times were just like that … Every single time it happened, it was just like all the others. … Just so I don’t have to keep on answering questions, that’s actually what happened …”.  COM was then asked about the last time it happened, and said “The same thing just happened”.[44]
  8. [29]
    COM said the appellant told her not to tell her mother, “so I listened ... And that was it”.[45]  However she did tell her mother, aunt and grandmother.  She said she told them “what I just told you”.[46]
  9. [30]
    In COM’s oral evidence (given when she was almost 13 years old) she said that what she told the police was the truth.  Apart from that her evidence in chief consisted of identifying photos of the house and what she wore, and drawings of the house.  Cross-examination included a considerable number of questions put to COM as to her previous evidence (either at the committal[47] or the previous trial[48]).  The following are the salient features of the cross-examination:
  1. (a)
    COM agreed that at the committal she said she remembered only the first and last time, but said she could now remember nothing of either;[49] she could now only partly recall what she said at the committal;[50]
  2. (b)
    she said she could not remember them now but “I know what I said is true and I know what happened”;[51]
  3. (c)
    when she was interviewed by police she told them everything she could remember;[52]
  4. (d)
    she agreed that her evidence at the committal was that the only things that happened to her were what she described at the committal;[53]
  5. (e)
    she agreed that: she had said the appellant did not say anything to her while touching her; she did not say anything to him; she did not tell him to stop it; she did not call out;[54] she did not call out or protest; he did not threaten her; he did not tell her to be quiet; and he did not use physical force to keep her there;[55]
  6. (f)
    the appellant had a hold on her as he tried to put his penis in, and it hurt;[56]
  7. (g)
    the only time he told her not to tell was the first time something happened;[57] she was scared of what could have happened and had already happened;[58] she was scared because “… my fears have already happened.  I was worried about how my mum would react – how she would cope”;[59] she was afraid of the appellant;[60] she was scared of him slapping her across the face, which had happened before;[61] she had not mentioned that at the committal because she did not want to talk about it, which is the same response she gave at the trial;[62] at the committal she said she was scared of something bad happening;[63]
  8. (h)
    she had previously made a complaint about being rubbed and licked on her vagina by one of her mother’s previous boyfriends;[64] she was interviewed about that event by police in October 2010, and that man was prosecuted and punished;[65] the first time the appellant did anything to her was in 2010 and after she spoke to police about the boyfriend;[66]
  9. (i)
    she knew that the conduct of the appellant should not be happening but would not have felt comfortable about telling a teacher about it; she knew she could tell a policeman or her father about it, but did not;[67]
  10. (j)
    COM was asked about what she told the police as to the last time anything happened; she said: he grabbed her hand and made her touch his penis, moving it up and down; he rubbed her on the vagina; then he put his penis in her mouth and made her suck it by moving her head up and down; positioned her over his lap, having taken her pants off, and tried to insert his penis into her vagina;[68]
  11. (k)
    COM was then cross-examined about what she had said at the committal about the last time; the sequence put to her and accepted was: it was two weeks before the police interview; she was watching a movie; the appellant got under a blanket with her; he rubbed her vagina; he gripped her hand and made her rub his penis; nothing was said by either of them; he rubbed outside the underwear and then went inside; having taken off her underwear he lifted COM onto his lap and tried to put his penis in her vagina; she was facing the TV at that time;[69] she agreed that her account was a very detailed account of what happened on the last time;[70]
  12. (l)
    at the end of that exercise COM said she only remembered what she said in the police interview;[71] the cross-examiner had asked for, and she had given, a very detailed explanation of what happened on the last time;[72] when it was put to her that in that detailed account she had not mentioned the fact of the appellant’s putting his penis in her mouth, COM replied: “I could’ve sworn I did…”;[73] COM accepted that at the committal she had not mentioned the aspect of the penis in the mouth;[74] and
  13. (m)
    COM agreed that the appellant had not tried to kiss her on the mouth, touched her breasts (though she said she had none, and only went through puberty at 11) or stuck his finger in her vagina.[75]
  1. [31]
    The defence case as put to COM was that she was a liar or a dreamer, and that none of the events had ever happened.  COM denied that suggestion, saying that what happened was real, that she had not dreamt it, and she had not made it up because she was angry with the appellant.  She responded: “No, I wouldn’t … do you really think I would want that?  I lost all my friends at school.  My mum’s gone through a lot [of] pain because of that, and you would think I would still continue this story, just for the simple fact to get attention?  No. That’s just wrong.”[76]
  2. [32]
    MUM’s evidence was that COM asked to speak to her on 21 May 2015.  She said something to the effect that she felt something ticked inside her, and made a comment about whether she might be pregnant.  COM told her that she and the appellant were in a relationship, they were having sex or trying to have sex, “or something along those lines”, and it had been happening for a while.  MUM thought a comment was made that he could not fit his penis in.  COM said she had seen the appellant’s penis, not accidentally.  The next day MUM gave a statement to police.
  3. [33]
    In cross-examination MUM said that COM was starting to go through puberty in May 2015, exhibiting deteriorating behaviour and experiencing mood swings.  She agreed COM was an attention-seeking girl.  She also agreed that: she had found out that COM had been watching pornography on the internet, and had made her own Kim Kardashian sex tape, and COM admitted each of those things to her.  But, MUM had not seen the tape.  She also agreed that COM had said she wanted to be a stripper, immediately after having watched a pole-dancer on TV.
  4. [34]
    DAD’s evidence in chief was that he had had a conversation with COM after she spoke to police.  In cross-examination he said that all COM told him was that the appellant “tried putting his finger inside of me and made me rub his groin and tried rubbing my groin”.[77]
  5. [35]
    RNT’s evidence was that she received a call from COM on 21 May 2015, telling her that her mother was upset, and that was because COM had told MUM that the appellant had been touching COM.  COM told her that it was not just touching, but sex.  When questioned about the difference COM had said she had known the difference for quite a while.[78]
  6. [36]
    WYF was called by the prosecution.  Her evidence was that she had been in a relationship with the appellant since 2000, and married him in 2007.  Every second weekend the appellant’s other children (including COM) would stay with them.  In 2014/2015 the appellant was in the habit of wearing a nightshirt and boxers to bed.  In cross-examination she said the appellant did not have a nightshirt with a sparkly pink tiger on it.  WYF went to bed ahead of the appellant and COM because she had a baby; the appellant often stayed up watching movies with COM and her brother.  COM did not have a set bedtime and would stay up watching TV or on the computer.  She usually fell asleep watching TV.
  7. [37]
    WYF did not observe COM being fearful of the appellant or reluctant to spend time with him.  COM liked to be the centre of attention, and sometimes wore what WYF considered to be inappropriate midriff-revealing shirts.
  8. [38]
    The doctor’s evidence was that examination of COM on 9 June 2015 did not reveal any genital injury and she had a hymen that showed evidence of early puberty.  The absence of injury was neutral in the sense that it did not prove or disprove that anything happened.

Discussion

  1. [39]
    Mr Callaghan SC, appearing for the appellant, submitted that there were a number of defects in COM’s evidence such that it was not open to the jury to accept it:
  1. (a)
    first, and central, was the proposition that no direct evidence was ever given about anything that occurred on the “last time”; that something had occurred was a conclusion that  depended on a particular process of reasoning; this involved accepting that the “T-shirt time” happened as described, that there were “other times”, and that “all the other times were just like that ... every single time it happened, it was just like all the others ...”; the reason that this process was invoked, and the reason COM did not want to give direct evidence about anything occurring on the “last time” was because she did not want to have to keep on answering questions;[79]
  2. (b)
    thus, it was said, evidence extracted in this way from a 10-year-old cannot be thought to be reliable; on its face, reasonable doubt is created by the possibility that this assertion was uttered in a desperate effort to curtail questioning - as opposed to considered testimony of the kind which might sustain a conviction;[80]
  3. (c)
    secondly, the allegation that oral intercourse occurred was said to have only surfaced belatedly in the account of events provided to police on 22 May 2015; the description of the “second time” was given in the form of an account of the appellant pulling down COM’s underwear before he “actually started doing the actual thing” to her; in this brief, but ostensibly complete, overview of events there was no mention of oral intercourse; the submission continued, that it was only after COM sought to have a break in the interview, and after “effectively being implored to say something further”, did COM aver that the appellant had compelled oral intercourse;[81]
  4. (d)
    thirdly, it was said that the only sworn account of events tendered in the trial was provided by the complainant during her pre-recorded evidence; on that occasion, the prosecution did not even attempt to adduce from her any direct evidence that might have substantiated any of the charges and in fact, at this hearing, COM disavowed any recollection of anything untoward ever being done by the appellant; notwithstanding this confessed inability to recall any such thing, COM was prepared to make on oath the (in the circumstances, impossible) assertion that the answers given in the interview of May 2015 were truthful;[82]
  5. (e)
    thus, it was said that, “in sum the entire prosecution case reduces to those few passages in which the complainant asserted that “the same thing just happened” on the “last occasion” as had happened previously”;[83] and
  6. (f)
    fourthly, there were other features to the evidence which, even if not individually decisive, combined to compel doubt about the reasonableness of the verdicts;[84] in this respect attention was directed to: (i) COM’s behavioural issues, mood swings, attention-seeking nature, and anti-social tendencies; (ii) COM was “sexualised” at a young age by the events concerning the boyfriend, what MUM said about COM having watched pornography on the net, and making a tape; it was said COM was angry at being admonished over that; COM’s denials of recalling those events was not honest or reliable; (iii) COM’s statement that she was scared of the appellant was belied by evidence of her affection for him; (iv) DAD’s evidence of what he was told by COM damaged her credibility and reliability; (v) COM’s account was inherently not believable especially as she said no sound was made in spite of the pain she referred to, and (vi) the alleged acts were carried out in circumstances where detection was likely.
  1. [40]
    In oral submissions Mr Callaghan SC put the essential point as:[85]

“The reliability of the evidence is compromised because it was extracted from an unwilling child in the face of importunate questioning, in circumstances where she was clearly tired and had exhibited an unwillingness to continue and a reluctance to offer any further information, and the only evidence capable of establishing the charge is volunteered at a point in the interview where those propositions are clearly established.”

  1. [41]
    Further, it was put that the passages referred to in paragraph [28] above were the cornerstone of the prosecution case.[86]
  2. [42]
    Both parties urged the Court to view the recordings of COM’s evidence.  I have done so, but the conclusions reached below were those formed before having that assistance.  Where it matters I have referred to what the videos show.
  3. [43]
    In my view it was open to the jury to accept COM’s evidence and be satisfied of the appellant’s guilt, beyond reasonable doubt.  I shall endeavour to explain why.
  4. [44]
    First, the central point advanced in respect of COM’s evidence is misconceived.  It was that there was no direct evidence of the “last time” and the mention of the appellant’s penis being put in COM’s mouth came late in the interview and was not repeated at the committal.  However, at the very start of the police interview COM recounted that he grabbed her hand and made her touch his penis, he tried to have sex the normal way, and his penis was put in her mouth.[87]  The last aspect was one COM was embarrassed to say out loud.  When asked to recount the “last time” COM said that was what she had just said, “… what you’ve just written down is what happened the last time …”.[88]  That this account was as to the “last time” was expressly put to COM, and agreed by her, at the trial.[89]
  5. [45]
    The interview progressed with COM recounting the first time (the “blanket time”, when she was six or seven), then the second time which was when it started again after a break of a couple of years (the “t-shirt time”).  It was in the course of recounting the second time that COM asked for a break and afterwards mentioned the oral sex again.  Then, when still recounting the second time, COM listed the sequence of events as: (i) rubbing her; (ii) making her rub him; (iii) making her suck him; and (iv) trying to put his penis in her vagina.[90]
  6. [46]
    COM repeatedly said she was embarrassed or reluctant to talk about certain events or things, or simply did not want to do so.  These included the oral sex,[91] using the real word for a boy’s privates,[92] the word “vagina”,[93] putting his penis into her,[94] giving more details,[95] and being put on the appellant’s lap when he attempted to have sex.[96]  COM also said she had tried to forget.[97]
  7. [47]
    At the trial COM’s evidence that she gave at the committal was put to her in considerable detail, and, with some minor exceptions, she agreed that she had given that evidence.  As to the committal, that included that she could then remember the last time,[98] and the “very detailed account” she gave as to what happened on the “last time”, albeit she had not referred to the oral sex.[99]  It was put to COM, and she agreed, that at the committal she had given a “detailed account of what happened on the last occasion”.[100]
  8. [48]
    No doubt trial Counsel for the appellant sought to make forensic use of COM’s omission, in her evidence at the committal, of the oral sex.  However, in doing so he adduced evidence from COM as to what happened on the “last time”.  That, together with the account given at the start of the police interview (which did include the oral sex) constituted direct evidence as to the “last time”, which the jury could accept if they accepted COM’s evidence.
  9. [49]
    Secondly, COM’s behavioural issues, mood swings and attention-seeking nature are not necessarily things that mean she was an unreliable witness, or lacked credit.  Her history suggests why she may have behaved the way she did.  She was sexually abused by MUM’s previous boyfriend when she was about six or seven, and had to undergo the ordeal of being interviewed by police then, and the subsequent prosecution of that person.  At about the same time she experienced the first sexual assault by the appellant.  As was put to the jury by the prosecutor, an explanation for the gap in time between the first time and the resumption of sexual assaults was given by the identification and prosecution of the boyfriend.
  10. [50]
    Nor did the behaviour referred to by MUM necessarily call for COM’s evidence to be rejected.  COM was described by her as experiencing mood swings, exhibiting attention-seeking and anti-social tendencies, having watched pornography on the internet and having admitted making her own sex tape.  Importantly, MUM’s report of her watching pornography and making the tape was not first hand,[101] and there was no clarification as to what it was.  And, MUM never saw the so-called sex tape.[102]  Equally importantly, COM said she could not remember getting into trouble for watching pornography, and denied making the sex tape and saying she wanted to be a stripper.  Moreover, that behaviour occurred in the lead up to COM disclosing what the appellant had done to her.[103]
  11. [51]
    Further, the mood swings coincided with COM commencing to go through puberty.[104]  As to the attention-seeking behaviour and anti-social tendencies, COM was a young girl who had been the victim of sexual assault by her mother’s then boyfriend.  As well, her parents had separated, and MUM was straining to cope with work and raising her children, to the point where she was discussing the prospect of one child moving to live with the appellant.[105]
  12. [52]
    When MUM’s evidence is examined it becomes apparent that the various behavioural issues all occurred at a time when COM began to experience puberty.  MUM connected that with her mood swings, deterioration in her behaviour and her anti-social behaviour at school.  MUM said that she was on medication to help with the mood swings.  Other than that she described COM as an attention-seeking child, but that way with everyone.[106]
  13. [53]
    The jury may well have formed the conclusion that what they were hearing was not an unusual feature for a young girl from a broken household, being brought up by a mother who was doing her best but struggling to combine the necessity for work with the strains of raising a family.  That perception could well have been bolstered by the fact that MUM was discussing with the appellant that one of the children would go to live with him.  In my view, none of what MUM described could justify the conclusion that the behaviour rendered COM a witness without credit or give reason to doubt the reliability of her evidence.  It would hardly be the first time that a young person undergoing puberty acted in a way that was at odds with what a rational adult might do.  Nor would it be the first time that a young person undergoing puberty experimented with things like pornography.  None of what was described would suggest that COM was the sort of person who would invent the account she gave, or recounted it but only as something she dreamt.  That was what was put to her by the defence case.
  14. [54]
    Thirdly, COM’s history in respect of the complaint by MUM’s boyfriend, that trial and then being interviewed about the appellant, reveals a likely explanation for both her behaviour and account, rather than her being a determined liar.  The police interview in respect of the assault by the boyfriend was on 28 October 2010, when COM was just six years old.  The trial was in October 2012, when she was eight.  The appellant’s conduct resumed in 2014 when she was 10, and her police interview in that respect was on 22 May 2015 when she was some months off being 11 years old.  The committal occurred in October 2016 when she was 12, and then her oral evidence for the current matter took place on 28 June 2017, when she was almost 13.  The jury may well have concluded that it was highly likely that COM wanted to forget what had happened to her.
  15. [55]
    The defence case was put to COM towards the end of her cross-examination.  It was that either her memory was a dream or she had invented it because she was angry at the appellant.[107]  COM’s responses to those two propositions could well have struck the jury as having a ring of truth about them.  As to whether her account could have been a dream she said:[108]

“No, I wouldn’t … do you really think I would want that?  I lost all my friends at school.  My mum’s gone through a lot of pain because of that, and you would think I would still continue this story, just for the simple fact to get attention?  No.  that’s just wrong.

Do you really think that I would still continue it now …”

  1. [56]
    As to having invented the story, COM rejected that saying “what happened was real”, and it was not true that she had made it up.[109]
  2. [57]
    Fourthly, the occasions on which COM expressed a reluctance to explain matters in detail, or to continue being questioned, do not, in my respectful view, bespeak a person trying to avoid questioning because what she is saying is untrue.  The account may well have struck the jury as one given by a 10 year old whose unfortunate history included a previous sexual assault by another person, and one which was exposed to her family and the police force.  The jury could well conclude that COM was trying to forget, or did not want to remember, embarrassing personal details, particularly that the appellant had placed his penis in her mouth.  Significantly, that aspect was one which the appellant resisted describing on a number of occasions, yet it is the one which she revealed right at the outset of the interview as having occurred on the “last time”.
  3. [58]
    Further, it was open to the jury to conclude that COM was a child who had no sense of the type of detail that the police officers believed was necessary in order to enable them to make an assessment of the validity of the complaint.  That is, she gave what she regarded as an outline as to what had occurred, not necessarily in perfect chronology or order as no-one would expect a child to be a perfect historian, and she did not understand what more information was necessary.
  4. [59]
    In my view, her reluctance to keep revisiting the details does not necessarily bespeak invention or unreliability, as opposed to a natural reluctance to discuss, in detail, embarrassing personal matters.
  5. [60]
    Fifthly, much the same can be said of COM’s comments about having exhausted her information.  She was only 10 at the time of the interview, and as with all such interviews, was being asked to discuss, and go over in detail, intensely personal matters of embarrassment.  The jury could well conclude that the reluctance to continue, and the desire to bring the interview to a close, reflects no more than might be expected of anyone in her position.
  6. [61]
    The same conclusion was open in respect of COM’s state of recollection at the time she gave her oral evidence.  Properly understood, COM was saying that by that time she could not recall the details, though she was quite firm that she had told the truth to the police.  The two are not irreconcilable.  In any event, what was established in cross-examination was that at the time of the committal COM did have memory of the events on the “last time”, which was the occasion the subject of the charges.  Cross-examination also elicited from her that she had given a very detailed account at the committal, albeit that she omitted the fact of oral sex.  COM’s reaction when confronted with that omission at the trial does not necessarily bespeak the conduct of a liar, but rather a 13 year old struggling to recall events some years before.  COM said she could have sworn that she mentioned it.  In fact, she did in the police interview.  That she omitted it in her evidence at the committal is a discrepancy, but in the circumstances was not one that necessarily destroyed her credibility or reliability.  Having actually revealed that aspect in the police interview, the omission was more likely, the jury could have concluded, due to memory lapse, rather than invention.
  7. [62]
    Finally, having watched the video of the police interview and COM’s oral evidence, the conclusions above are reinforced by the way in which COM related the events.  She was evidently uncomfortable with various aspects of what she had to reveal, and reluctant to drill down on the embarrassing details.  However, she gave a coherent and consistent account through the interview, and graphically when it came to revealing the nature of the acts.  There was also a deal of constraint in her account.  It would have been a simple thing for her, if she was inventing the story, to add that the appellant inserted his finger in her vagina, or that she had been kissed by the appellant, or that he had ejaculated in the course of the conduct, but she did not.  None of that sort of detail was added, and that remained the same as between the police interview and the evidence at the committal, with the exception that at the committal COM left out the aspect of oral sex.  She explained that as a flaw in her memory,[110] which it was open to the jury to accept.
  8. [63]
    The recorded evidence does not, in my respectful view, support the submission set at in paragraph [40] above.  The jury could well have concluded that COM was a damaged young girl, reluctant to reveal deeply embarrassing personal matters, lacking comprehension of what the police required and therefore irritated at the persistent questioning, and fearful of the impact of events upon her mother.  The fear of her mother’s reaction was, she said, one of the reasons she said nothing at the time, and her tearful description of her fears having proven to be justified, would likely have had an impact on the jury.
  9. [64]
    And COM’s oral evidence at the trial revealed that she did, in fact, remember a number of matters such as: what she said to police;[111] some of what she said at the committal;[112] some aspects of the actual events;[113] what did not occur;[114] and that she had never said that the appellant took his nightgown off.[115]
  10. [65]
    In my view, the evidence from COM did not suffer from such inconsistencies or discrepancies, whether individually or collectively considered, that it was rendered unbelievable, or unreliable.  It was open to the jury to accept her evidence about what happened on the “last time”, and reach a conclusion of guilt beyond reasonable doubt.  I am not left with a doubt that an innocent person has been convicted.
  11. [66]
    I propose the following order: The appeal is dismissed.
  12. [67]
    BUSS AJA:  I agree with Morrison JA.

Footnotes

[1](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494.

[2]M v The Queen at 493; internal citations omitted.  Reaffirmed in SKA v The Queen.

[3](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.

[4][2018] QCA 24, at [31].

[5]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.

[6]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.

[7]Baden-Clay at 330 [66].

[8][2018] QCA 213 at [80].

[9]The sister of COM’s mother.

[10]AB 316-317.

[11]AB 317.

[12]AB 318.

[13]AB 319.

[14]AB 318.

[15]AB 353-354.

[16]AB 319.

[17]AB 323.

[18]AB 322-323.

[19]AB 325.

[20]AB 326.

[21]AB 326-327.

[22]AB 319, 333.

[23]AB 328, 342.

[24]AB 332.

[25] AB 329, 334.

[26]AB 335.

[27]AB 336, 337.

[28]AB 338.

[29]AB 339.

[30]AB 340.

[31]AB 348.

[32]AB 340.

[33]AB 341.

[34]AB 343.

[35]AB 344.

[36]AB 346.

[37]AB 345.

[38]Because of her description of wearing a t-shirt with girls on it.

[39]AB 348.

[40]AB 349.

[41]AB 350.

[42]AB 351.

[43]AB 353.

[44]AB 353.

[45]AB 357.

[46]AB 355.

[47]Which took place on 18 October 2016.

[48]There had been a previous trial in February 2018, in which the jury had been discharged.

[49]AB 141 lines 19-29.

[50]AB 147 lines 14-25.

[51]AB 146 lines 8-9.

[52]AB 145 lines 37-43.

[53]AB 147 lines 6-8.

[54]AB 147 lines 36-44.

[55]AB 148 lines 25-33; qualified by what appears in the next sub-paragraph.

[56]AB 148 lines 45-47.

[57]AB 149 lines 4-8; 17.

[58]AB 149 lines 29-34.

[59]AB 151 lines 5-8.

[60]AB 151 line 36.

[61]AB 152 lines 1-19.

[62]AB 152 lines 1; 22.

[63]AB 153 lines 11-16.

[64]AB 154 lines 7-18.

[65]AB 155 lines 24-40.

[66]AB 156 lines 1-11.

[67]AB 157 lines 1-16.

[68] AB 160 line 24 to AB 161 line 12.

[69]AB 161 line 17 to AB 163 line 30.

[70]AB 165 lines 28-34.

[71]AB 163 line 37.

[72]AB 166 lines 19-23.

[73]AB 165 line 36.

[74]AB 167 lines 15-21.

[75]AB 171 line 45 to AB 172 line 16.

[76]AB 176 lines 40-43.

[77]AB 218, 222.

[78]AB 226.

[79]Appellant’s outline paragraph s 23-24.

[80]Appellant’s outline paragraph 26.

[81]Appellant’s outline paragraphs 28-32.

[82]Appellant’s outline paragraphs 34-35.

[83]Appellant’s outline paragraph 36.

[84]Appellant’s outline paragraphs 39-40.

[85]Appeal transcript T1-5 lines 5-10.

[86]Appeal transcript T1-17 line 12.

[87]AB 317-318.

[88]AB 318.

[89]AB 160 line 24 to AB 161 line 12.

[90]AB 349.

[91]AB 317 (“The next one I’m not going to say, it’s too embarrassing”); AB 348 (“I really don’t want to talk about that part”); AB 349 (“I really don’t want to talk about that part. I don’t think anyone would rather talk about that part. … I still don’t like talking about it.”).

[92]AB 319.

[93]AB 323.

[94]AB 343.

[95]AB 339 (“I just told you all my information”); AB 345 (“you drag me out of information … The information is now stopped”); AB 358 (“And I’m completely dry of information”).

[96]AB 353 (“I don’t want to talk about the lap bit”).

[97]AB 332.

[98]AB 146 lines 36-38, AB 161 lines 17-19.

[99]AB 162 line 5 to AB 165 line 37.

[100]AB 166–167.

[101]AB 373 lines 20 (“inappropriate stuff” was all that was said), 30 (a “video like porno”).

[102]AB 374 line 3.

[103]AB 375 line 6.

[104]AB 370.

[105]AB 371 line 38 to AB 372 line 15.

[106]AB 373 line 6 and AB 375 line 26.

[107]AB 176 line 33.

[108]AB 176 line 40 to AB 177 line 2.

[109]AB 177 lines 26-34.

[110]AB 171 line 8.

[111]AB 146 line 8, AB 147 line 20, AB 158 line 10, AB 163 lines 35-38.

[112]AB 147 line 14, AB 166 lines 19-23, AB 167 line 33.

[113]AB 148 line 21 lines 41-47, AB 160 lines 24-26.

[114]AB 147 lines 36-44.

[115]AB 162 line 45; this was accurate, AB 163 lines 1-10.

Close

Editorial Notes

  • Published Case Name:

    R v CCL

  • Shortened Case Name:

    R v CCL

  • MNC:

    [2019] QCA 280

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Buss AJA

  • Date:

    03 Dec 2019

Litigation History

No Litigation History

Appeal Status

No Status