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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Groundwater  QCA 287
GROUNDWATER, Paul Rognvald
CA No 259 of 2019
DC No 601 of 2018
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 19 September 2019 (Jarro DCJ)
15 December 2020
17 April 2020
Morrison and McMurdo JJA and Burns J
The appeal against conviction is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of four counts of aggravated indecent treatment of a child under the age of 12 years and under care and two counts of rape – where the appellant was acquitted of two counts of rape – where counts 1 and 2 were alleged to have occurred on one occasion and counts 3 to 8 on another occasion – where the complainant gave a videorecorded interview pursuant to s 93A of the Evidence Act 1977 (Qld) and was cross-examined at a pre-recorded hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) – whether the guilty verdicts were inconsistent with the acquittal on count 6
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of four counts of aggravated indecent treatment of a child under the age of 12 years and under care and two counts of rape – where the appellant was acquitted of two counts of rape – where counts 1 and 2 were alleged to have occurred on one occasion and counts 3 to 8 on another occasion – where the complainant gave a videorecorded interview pursuant to s 93A of the Evidence Act 1977 (Qld) and was cross-examined at a pre-recorded hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) – whether, on the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 7
Criminal Code (Qld), s 668E(1)
Evidence Act 1977 (Qld), s 21AK, s 93A
Jones v The Queen (1997) 191 CLR 439;  HCA 56, cited
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348;  HCA 35, cited
MFA v The Queen (2002) 213 CLR 606;  HCA 53, cited
Pell v The Queen (2020) 94 ALJR 394;  HCA 12, cited
R v Allen (a pseudonym)  QCA 233, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, cited
R v GAW  QCA 166, cited
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
M J Copley QC for the appellant
N W Crane for the respondent
Potts Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: I agree with the conclusions reached by Burns J and the proposed order. In light of the Crown’s contention that the s 93A recording shows a notable change in the complainant’s demeanour at the critical junction of her evidence said to be relevant to Count 6, I too observed that part of the recording identified by Burns J in paragraph  of his Honour’s reasons. I agree with his analysis and conclusions in that regard.
- McMURDO JA: I have had the benefit of reading in draft the judgment of Burns J, in which, for the most part, the evidence and the arguments are set out. This allows me to state shortly my reasons for concluding that the appeal should be allowed, to the extent of setting aside the convictions on counts 1 and 2.
- There are two grounds of appeal. The first is that the verdicts of guilty are unreasonable because they are inconsistent with the acquittal on count 6. The second is that the verdicts on counts 1, 2 and 7 are unreasonable. I would allow the appeal on the second ground, insofar as counts 1 and 2 are concerned.
- On the first ground, it is submitted for the appellant that the only explanation for the acquittal on count 6 was that the complainant was regarded by the jury as unreliable in relation to that count. From that premise, it is argued that the quality of her evidence about the other counts was no better than her evidence about count 6, so that it was not open to the jury to be satisfied of guilt on those other counts if not satisfied of guilt on count 6. This requires a consideration of what might have been the jury’s reasoning about count 6.
- I have reviewed the evidence at the trial, and I have read many times the transcript of the interview of the complainant. Prompted by reading the judgment of Burns J, I have also watched the video recording of that interview. This interview, which was effectively the only proof of any offence, is in several places difficult to follow. The police officers who interviewed the complainant endeavoured to direct the interview in a way which would provide a clear narrative of what occurred on the two occasions in which the offences were allegedly committed. Despite their efforts, frequently the complainant would say something which was not responsive to a question, and which was not in itself a clear statement. The consequence of the evidence being so disjointed was that it required no small amount of interpretation.
- This is illustrated by the interpretation of the evidence which might have involved count 6. Clearly, the prosecutor considered that there were things which the complainant had said which, if accepted to be true, proved the commission of count 6, which was particularised as the appellant allowing his penis to be sucked by the complainant when they were in the bedroom which she described as sometimes used by her brother and sister. The appellant’s counsel at the trial apparently accepted that there was some evidence of count 6, because no application was made to the trial judge to remove that count from the jury’s consideration. And although, in this Court, the respondent tended to diminish the Crown case on count 6, it did not submit that a guilty verdict was not open. However Burns J has concluded that a guilty verdict was not open, because in his Honour’s view, a part of the interview to which he refers at  is not a description of something which occurred in this particular room of the house, and for that reason was not evidence of count 6.
- In this case, therefore, the jury had to assess not only whether the complainant was a credible and reliable witness, but also what her statements in the interview actually meant and thereby proved. In rejecting the prosecution case on count 6, the jury might have thought that the complainant was a credible and reliable witness, but that in the interpretation of her evidence, it was not proved to the requisite standard that such an event occurred in this particular room.
- In my view, it was open to the jury to interpret the evidence, set out by Burns J at , as also referring to what happened in that bedroom, that is to say, as evidence of both counts 5 and 6. And further, there were other statements in the interview which, the jury could have concluded, were evidence of count 6.
- She was asked how many times she had sucked the appellant’s penis. Referring to the December occasion as “the first time”, she said that she was unable to recall the room of the house in which this occurred. There was then this passage:
“SCON WRUCK: Okay. And---
COMPLAINANT: And also I can rub it and everything.
SCON WRUCK: Where did that happen?
COMPLAINANT: Um, after thing.
SCON WRUCK: Okay. But whereabouts?
COMPLAINANT: Um, can’t remember. Because that, that was actually before, before the one like we’re talking about now.
SCON WRUCK: Okay. So how long before?
SCON WRUCK: How long before?
COMPLAINANT: Well I don’t know. But the first time I was still six and I'm still six now, like we’re talking--
SCON WRUCK: Okay.
COMPLAINANT: And also I was six when he came over, like the one that we’re talking about--
SCON WRUCK: Okay. So which room of the house were you in when that happ-, first time happened.
COMPLAINANT: Wait, what did you say again?
SCON WRUCK: Where, which, which room were you in the first time it happened?
COMPLAINANT: Well I don’t remember because that was a long time ago.
SCON WRUCK: Okay. And the second time--
COMPLAINANT: Is this one stuck on?
SCON WRUCK: And which, were where you in the second time?
COMPLAINANT: Well mm.
SCON WRUCK: Okay.
COMPLAINANT: Ah, yeah. I remember. He, my brother and sister’s room and also my room.”
- The appellant’s submission is that the evidence of count 6 was stronger than that for the other counts. That submission assumes that certain passages of the interview are to be interpreted as descriptions of what occurred in this room. Whilst it was open to the jury to conclude that this is where they occurred, it is unremarkable that the jury may have been left in doubt as to whether an act of oral sex occurred there. The more detailed evidence of the acts particularised as count 5 provided a clearer proof of the prosecution case.
- In several parts of the interview, the complainant described an act of sucking the appellant’s penis. She appeared to describe an act of ejaculation. At one point in the interview, in the course of describing what occurred in her own bedroom, she described an act in which she “sucked it”, which was the occasion when the “wee … went in my mouth” and she sucked it “for a very long time”. From this evidence, a verdict of guilty on count 7 was open to the jury, and it was open to the jury to be satisfied about count 7 whilst remaining unsure about whether other evidence had to be interpreted as proving count 6.
- For these reasons, ground 1 of the appeal must be rejected.
- The second ground is that the verdicts on counts 1, 2 and 7 were unreasonable. What I have just said explains my conclusion that the verdict on count 7 was not unreasonable. In contrast, the evidence on counts 1 and 2 was scant, and there were other circumstances which detracted from the prosecution case.
- Towards the end of the interview, there was the passage which I have set out at . Immediately before that passage, the complainant said that the oral sex happened “a lot … at night time and morning.” The police officer asked: “How many times has Paul looked after you?”, to which the complainant answered “twice” and that “this is the second time … we’re talking about right now.” There followed the passage which is set out earlier.
- That was the extent of the evidence which was said to prove counts 1 and 2. Evidence of a preliminary complaint was provided by the complainant’s parents. They testified that the complainant said to each of them that after a swim, she had a shower with the appellant who was wearing no clothes in the shower. Subsequently she told her father that she washed the appellant’s penis. There was no complaint about this earlier occasion when the appellant had been alone with her in the house. This occasion was only a few weeks prior to the second occasion, from which there were the preliminary complaints and the interview by police only days later. Further, during her (brief) cross-examination there was this tentative evidence:
“Did things happen, that is, naughty things between you and Paul on both times or just one time?---I think both.
Can you remember or are you guessing?---Yeah, now I can remember.
And what do you remember?---Yeah, both times.”
- Having reviewed the evidence, in my conclusion it was not open to the jury to convict the appellant on counts 1 and 2. The jury should have been left in doubt as to whether the complainant had a real recollection of that conduct occurring on the first occasion, or instead was reconstructing, having been prompted to say so towards the end of the interview. Her inability to recall where, in her house, she had been when the first of this misconduct occurred is particularly significant.
- I would allow the appeal and set aside the convictions on counts 1 and 2.
- BURNS J: After a trial in the District Court at Brisbane on four counts of aggravated indecent treatment of a child under the age of 12 years and under care and four counts of rape, the jury acquitted the appellant of two counts of rape (counts 4 and 6) and found him guilty of all other counts. By this appeal, he contends that each finding of guilt was inconsistent with his acquittal on count 6 and, as a further ground, that the verdicts on counts 1, 2 and 7 were unreasonable. For the reasons that follow, neither ground having been made out, the appeal ought to be dismissed.
- Each of the counts on the indictment alleged offences against the same complainant, a six-year old girl. Her mother knew the appellant from school and, after a gap of some 30 years, became re-acquainted in July 2016. They lived in adjacent suburbs and began to have regular contact. This included the appellant, along with his partner, agreeing to babysit the complainant in their own home. The offending, however, was alleged to have occurred when the appellant babysat the complainant on his own in her parents’ home on two separate occasions; the first on 10 December 2016 (when her parents attended a Christmas party) and the second on 1 January 2017 (when they travelled to Archerfield to watch car racing). Counts 1 and 2 were alleged to have occurred on the first of those occasions with the balance on the second. No one else was at home on either occasion.
- The case opened to the jury conformed to written particulars furnished by the Crown, a copy of which was provided to the jury. According to those particulars, on the first occasion, the appellant “permitted” the complainant to “rub and/or kiss his penis” (count 1; indecent treatment) and “penetrated … her mouth with his penis” (count 2; rape), although where within the home these acts took place was not particularised. On the second occasion, the appellant and the complainant were in a shower together when he “permitted” her to “wash and/or kiss and/or lick and/or play with his penis” (count 3; indecent treatment) and “penetrated … her mouth with his penis” (count 4; rape). Then, in a bedroom sometimes occupied by the complainant’s step-siblings, the appellant “permitted” her to “touch and/or kiss his penis” (count 5; indecent treatment) and “penetrated … her mouth with his penis” (count 6; rape). Afterwards, when the complainant was on her own bed, the appellant again “penetrated … her mouth with his penis (count 7; rape). Lastly, while together in a toilet, the appellant “permitted” the complainant to “touch his penis while he was urinating” (count 8; indecent treatment).
- Although it was accepted by the appellant that there was no evidence to support a finding of guilt in relation to one of the acquittals (count 4), it was argued that there was no obvious explanation on the evidence for the other acquittal (count 6). It was submitted that the Court should therefore “conclude that the jury regarded the complainant as unreliable” in relation to that count and, because “the quality of her evidence about the other counts was similar to or, in some cases even poorer than, the evidence about count 6”, the guilty verdicts were unreasonable because it was not open to the jury to be satisfied of the appellant’s guilt on those counts if they were not also satisfied of his guilt on count 6.
- The Crown case consisted of pre-recorded evidence from the complainant along with evidence from each of her parents and a teacher from her school. A number of photographic and other exhibits were tendered, and several facts were jointly admitted by the parties. The appellant elected not to give or call any evidence in his own defence. What follows is a summary of the evidence placed before the jury, so far as is relevant to the grounds of appeal.
- On the day following the second occasion when the appellant babysat the complainant (2 January 2017), the child told her mother that she and the appellant had been in the shower together. Later that day, and the next, both of her parents spoke with her separately. The complainant confirmed to each that she and the appellant showered together and that, when doing so, the appellant was “wearing nothing”. In one of the conversations with her father, the complainant said that the appellant allowed her to “wash” his “doodle”. The appellant was then called on to provide an account and, to that end, the child’s mother sent a Facebook message to him in which she sought a “diarised version of … what happened that night”. The next day (3 January 2017), the appellant replied, indicating that the “diary was finished” and, with that, the complainant’s father drove to the appellant’s home to collect it. Nothing appears to turn on the content of that version or, for that matter, what was said during a pretext telephone conversation between the complainant’s mother and the appellant on 10 January 2017 which was recorded by the police.
- The complainant was interviewed by police on the same day as the pretext telephone conversation. That interview was videorecorded and an edited version played to the jury at the trial pursuant to s 93A of the Evidence Act 1977 (Qld). The child was later cross-examined on her account at a preliminary hearing conducted pursuant to s 21AK of the Evidence Act on 3 August 2018 and, like her s 93A interview, a videorecording of that evidence was played to the jury. On the hearing of the appeal, a transcript of the s 93A interview was received in evidence by the Court, and the various passages from that interview that are extracted in what follows have been reproduced from that transcript.
- The s 93A interview commenced with the principal investigating officer, Senior Constable Wruck, explaining to the complainant that she could tell him “anything” she liked and use “any words” to do so, including a “naughty word”. She volunteered that, “at home, me and Mummy … say peanut for a naughty word”.
- The questioning initially focussed on the second of the two occasions of offending alleged against the appellant. The complainant confirmed that she was babysat by the appellant “about a week ago” when “Mum and Dad were watching … racing cars”, and that this “was until night time until … the morning.” Her father collected the appellant and brought him to their home. He arrived in the mid-afternoon, a time which the complainant described later in the interview as “one half afternoon, half night time”. When asked what she and the appellant were doing when her “Mum and Dad went to the races”, the complainant said that she was “videoing” with an iPad and that she wrote a “little poem” or song. This all happened while the appellant “was in [her] bed”.
- SC Wruck then asked the complainant whether she and the appellant had gone swimming. At first she said that the appellant “couldn’t go swimming because … he had his glasses on” but she then said that he “had his undies on in the pool” and that, when she performed a “lucky last dive”, she “got his glasses wet and we had to hop out of the pool”.
Counts 3 and 4 – in the shower
- The complainant said that, after swimming, she and the appellant “went for a shower” before going to her “bedroom to do stuff”. The complainant was asked about “going for the shower”. She said they were “washing ourselves and washing legs”. She also washed her hair using shampoo and then a conditioner. They were in the shower together, and naked. There was then this exchange:
“SC WRUCK: So tell me everything about the washing in the shower.
COMPLAINANT: Um, yeah. That’s it.
SC WRUCK: Yep.
COMPLAINANT: That’s all the stuff in the shower.
SC WRUCK: Okay. So you washed your hair?
COMPLAINANT: Yeah. And then after that, we went in my bedroom.
SC WRUCK: Okay. Did um [the appellant] wash his hair?
SC WRUCK: No?
COMPLAINANT: ‘Cause he didn’t have any hair, remember.
SC WRUCK: Okay. That’s alright.
COMPLAINANT: He only had a tiny bit sticking up.
SC WRUCK: So which parts of body did [the appellant] wash?
COMPLAINANT: Um, everywhere.
SC WRUCK: Yep. So where’s everywhere?
COMPLAINANT: But I washed his feet.
SC WRUCK: You washed his feet?
COMPLAINANT: And his legs. And his big, big tummy.
SC WRUCK: Yep. So – –
COMPLAINANT: And – –
SC WRUCK: Yep.
SC WRUCK: So you washed his feet and his legs and his tummy, did you wash anywhere else – –
SC WRUCK: On [the appellant]?
COMPLAINANT: Wait, um. I just gonna, I just want to tell you something.
SC WRUCK: Yeah. Tell me.
COMPLAINANT: Remember you said I could say peanut and the other words too.
SC WRUCK: Yep. Yep.
COMPLAINANT: Can I actually really say it?
SC WRUCK: Yeah. Tell me.
COMPLAINANT: Really? Like, for what?
SC WRUCK: Anything you’d like to describe something, you can tell me whatever words you want.
COMPLAINANT: Well I did it when [the appellant] was there.
SC WRUCK: Mm.
COMPLAINANT: But I didn’t even know that I supposed to say peanut.
SC WRUCK: So when you say peanut, what are you talking about?
COMPLAINANT: Like, like the F word and – –
SC WRUCK: Mm.
COMPLAINANT: The C word.
SC WRUCK: Okay.
COMPLAINANT: And the S–H word and everything.
SC WRUCK: So you said you washed his feet and his legs and his tummy. Did you wash anything else?
COMPLAINANT: Yeah. I washed his head a little bit.
SC WRUCK: Yep.
COMPLAINANT: But he didn’t have his glasses on – –
SC WRUCK: Yep.
COMPLAINANT: Because they would get wet.”
- SC Wruck asked the complainant whether she had “ever showered with a man before”. She said that she had only ever showered with her mother apart from one occasion when her father was also present. Asked what she noticed about the appellant, the complainant said that he “had hair on him everywhere”. She was then asked a series of questions to establish that she understood some of the anatomical and toileting differences between “girls” and “boys”, during which the following was said:
“SC WRUCK: So where do girls wee from?
SC WRUCK: Yep. From their front? What, what – –
COMPLAINANT: But it’s – –
SC WRUCK: Yep.
COMPLAINANT: Bum is actually naughty word.
SC WRUCK: Okay. What about boys, where do they wee from?
COMPLAINANT: Their doodle.
SC WRUCK: Okay.
COMPLAINANT: But sometimes it’s called, sometimes it’s called a penis.
SC WRUCK: Okay. Or a penis. So what did you notice about [the appellant]?
COMPLAINANT: Well, well mm, don’t know very much. I can’t remember.
SC WRUCK: Okay. So does [the appellant] have a penis?
SC WRUCK: Yeah? Did you see it in the shower?
COMPLAINANT: But also he letted me suck it and also lick it and also hug it and play with it. Well I don’t even understand him.
SC WRUCK: Okay. So tell me about that.
COMPLAINANT: Um, I just told you about that.”
- SC Wruck then asked the complainant when that incident happened, and she replied, “When he was at my house … at night”, before adding, “(A)nd also after the shower in my bed”. However, she was asked to describe what happened in her bedroom after the shower but said that she could not remember.
- Later in the interview, there was a return to this topic. The complainant said that she “washed [the appellant’s] doodle” in the shower and described the state of the appellant’s penis when doing so (“(I)t was a mushroom,” “(i)t wasn't exactly floppy, it was just straight …”, it “(l)ooks like he has a line sticking out [when] he walks”).
Counts 5 and 6 – in the step-siblings’ bedroom
- After the exchange summarised at paragraph , the complainant was then reminded by SC Wruck that she could use “a rude word” or “something naughty” to describe anything that occurred, after which there were these questions and answers:
“SC WRUCK: So tell me about what happened, you said some things before about his penis.
COMPLAINANT: And also when he was in his, in my sister and brother’s bedroom – –
SC WRUCK: Yeah.
COMPLAINANT: Which was his bedroom when he stayed.
SC WRUCK: Mm.
COMPLAINANT: Well, well I got to say the naughty words – –
SC WRUCK: Did you?
COMPLAINANT: Like fuck.
SC WRUCK: Did you really?
COMPLAINANT: And like idiot and like cunt. That’s your cunt.
SC WRUCK: So when did you say those naughty words?
COMPLAINANT: Um, he letted me.
SC WRUCK: Who’s he?
COMPLAINANT: [The appellant].
SC WRUCK: OK. So when did he let you say the rude, rude words?
COMPLAINANT: At night time when I was doing his doodle.
SC WRUCK: OK. So tell me about, you said before doing his doodle. What, what’s that mean?
COMPLAINANT: And penis.
SC WRUCK: And his penis. What, what were you doing?
COMPLAINANT: Um, wobbling it around.
SC WRUCK: Okay. And when did that happen?
COMPLAINANT: At night, the same when I said fuck.
SC WRUCK: Okay. And was that the time when your Mum and Dad went away to the racing cars?
COMPLAINANT: Um, no. It was just at night time. Because Mum, Mum and Dad went to the racing cars at, when it was half mor–, half – –
SC WRUCK: Okay.
COMPLAINANT: Half afternoon, half night.
SC WRUCK: But you know how we’ve been talking about, you know you went for a swim in the pool and he wore his undies – –
SC WRUCK: And you had a shower. Is this the night you told me about that he, he um let you play with his doodle?
COMPLAINANT: And say the F words and dick.
SC WRUCK: OK. And when did, and when did that happen? I mean where did that happen?
COMPLAINANT: Um, in, in my sister and brother’s bedroom. [INDISTINCT] practice doing it.
SC WRUCK: So tell me about this, this time when you said that you’re saying [the appellant] was making you or letting you play with his penis and it was all floppy. Tell me all about that.
COMPLAINANT: This floppy.
SC WRUCK: Mm.
COMPLAINANT: Well um wait did I already tell you that?
SC WRUCK: Yeah.
COMPLAINANT: Yeah. I already told you everything about it.
SC WRUCK: But what were you doing?
COMPLAINANT: Kissing and sucking it. And I, you know what I also did, I squeezed, I holded his doodle while he was weeing.” [Emphasis added]
- A little later in the interview, the complainant was asked again about what had occurred in her step-siblings’ room. In particular, she was asked what she was wearing when she was “touching … and playing with” the appellant’s penis and said that she was wearing her “undies”.
Count 7 – in her bedroom
- The complainant then went on to say that, “outside where the T-V is”, she was wearing a dress over her “undies” but she took her underpants off and threw them in her room. Then, this was said:
“COMPLAINANT: So [the appellant] told me to put it on, but we were in my bedroom.
SC WRUCK: Mm.
COMPLAINANT: That he said going to her undies, please.
SC WRUCK: Mm.
COMPLAINANT: But it was in my room when we were already in there–”
- SC Wruck asked her what the appellant was wearing when she was “playing with his doodle” and she replied that he pulled his pants down. The complainant went on to describe the appellant’s penis (“(I)t’s like a mushroom”, “it has a little stick”, it “looks like a mushroom top”) before describing what is likely to have been an act of ejaculation:
“COMPLAINANT: And he also wee. He, after he weed. I sucked it and it had wee and it went in my mouth.
SC WRUCK: Ah, really.
SC WRUCK: What did the wee look like?
COMPLAINANT: When I sucked it for a very long time, he letted me say fuck, fuck, you’re a fuckwit.
SC WRUCK: Mm.
COMPLAINANT: And also, he said, you’re a cunt.
SC WRUCK: Really?
COMPLAINANT: You’re a cunt. But boy, boys don’t have a cunt.
SC WRUCK: Mm. Okay. So tell me about you sucking it. What happened?
COMPLAINANT: Mm. Well he weed in my mouth. Because, ‘cause he weed first and then I got a little bit of wee in my mouth.
SC WRUCK: So what happened with the, when he weed in your mouth.
SC WRUCK: What happened when he weed in your mouth?
COMPLAINANT: Um, um it tasted gross. It tasted like poos and disgusting wees.
SC WRUCK: Ah, okay. So what did it taste like?
COMPLAINANT: Poos and disgusting wees.
SC WRUCK: Ah, okay.
COMPLAINANT: Tasted really awful.”
Count 8 – in the toilet
- It will have been seen from the complainant’s last response in the extract from the interview set out at paragraph , that she said the appellant allowed her to hold his penis whilst he was urinating. The complainant went on to say that she was “making sure the wee part … was right in the toilet” and that “he also got some on my foot”, something she described as “yucky” and “disgusting”.
Counts 1 and 2 – the first occasion
- The complainant was asked what happened on the first occasion when she was babysat by the appellant, and this is what was said:
“COMPLAINANT: He letted me suck his doodle but I didn’t want to because I’ve never done that before.
SC WRUCK: Yeah. So tell me about that.
COMPLAINANT: He made me kiss his doodle – –
SC WRUCK: Mm. Okay. What did he say?
COMPLAINANT: He said, you can suck my doodle and also kiss it.
SC WRUCK: Okay. And – –
COMPLAINANT: And also I can rub it and everything but I was scared – –
SC WRUCK: Where did that happen?
COMPLAINANT: Um, after thing.
SC WRUCK: Okay. But whereabouts?
COMPLAINANT: Um, can’t remember. Because that, that was actually before, before the one like we’re talking about now.
SC WRUCK: Okay. So how long before?
SC WRUCK: How long before?
COMPLAINANT: Well I don't know. But the first time I was still six and I’m still six now, like we’re talking – –
SC WRUCK: Okay.
COMPLAINANT: And also I was six when he came over, like the one that we’re talking about – –
SC WRUCK: Okay. So which room of the house were you in when that happ–, first time happened.
COMPLAINANT: Wait, what did you say again?
SC WRUCK: Where, which, which room were you in the first time it happened?
COMPLAINANT: Well I don't remember because that was a long time ago.
SC WRUCK: Okay.”
- Towards the end of the interview, the complainant was asked how she sucked the appellant’s penis. She said that the appellant asked her whether she wished to “suck [his] doodle” and when she did so, she sucked “the mushroom part”, “where his wee comes from”, and “up the top of his little line of the mushroom part”. She confirmed that it was inside her mouth and that she sucked it for a “very long time”.
The s 21AK Hearing
- When cross-examined at the s 21AK hearing on 3 August 2018, the complainant was eight years of age. She watched her s 93A interview prior to giving evidence but said that, before doing so, she could remember the events which occurred in her room and in her step-siblings’ room. Watching the interview helped her “a little bit”. At first she said that the appellant looked after her at her parents’ home on two or three occasions, but later in her cross-examination she appeared to settle on two occasions only and referred to “naughty things” occurring on “both” occasions. She agreed that nothing untoward occurred when she was babysat by the appellant (and his wife) at his home. She was asked whether she spoke with her parents prior to speaking with the police but said that she had not told them anything. She agreed that her mother “promised to give [her] a treat” if she spoke with the police. She said that “naughty things” happened on both occasions when she was babysat by the appellant in her home. It was expressly put to her that those “things” did not happen and that they were parts of a story that the complainant had “made up”. The complainant denied that was so.
Some aspects of the conduct of the trial
- The trial commenced on 16 September 2019. Not long after the Crown opening and an opening statement from the appellant’s counsel, the s 93A interview was played to the jury but, before it was, the Crown prosecutor announced that it will “become apparent that there have been some edits made to this recording”.
- The evidence at trial concluded just prior to lunch on the second day, with the addresses of counsel delivered in the afternoon. Both counsel focussed on the central issue in the case, that is to say, whether the jury could be satisfied beyond reasonable doubt that the complainant had given a truthful and reliable account in support of each of the offences charged on the indictment. The detail provided by the complainant with respect to most of the offences charged, along with the preliminary complaint evidence given by her parents, were two aspects of the evidence which the Crown prosecutor emphasised to support her credibility. For the defence, it was argued that the complainant’s version was not genuine; rather, it was a “story” that had been made up for reasons to do with an unsettled home environment. The differences between what the complainant told her parents and what she said in her s 93A interview, including the ways in which her version became more elaborate throughout that interview, the absence of any complaint after the first occasion, the lack of detail concerning that occasion and possible explanations for the complainant inventing her story were highlighted. The defence submitted that the jury could not be satisfied beyond reasonable doubt about the commission of any of the offences charged on indictment.
- The summing-up commenced late on the second day and was concluded the next morning (18 September 2019) at 10.42 am, after which the jury retired to consider their verdict. The summing-up relevantly included the following directions:
“The evidence in relation to the separate offences is, of course, different. They relate to separate incidents which are said to have occurred on 10 December 2016 – that’s for counts 1 and 2 – and 1 January 2017 – therefore, … your verdicts need not be the same. If you have reasonable doubt concerning the truthfulness or reliability of [the complainant’s] evidence in relation to one or all counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness and reliability of her evidence, generally.
If you find a count proven, however, you cannot use that fact to reason guilt in relation to another count. Your general assessment of the complainant as a witness will be relevant to all counts but you will have to consider her evidence in respect of each count on the indictment about each particular incident when considering … that count. Now, it may occur, in respect of one of the counts, that, for some reason, you’re not sufficiently confident of her evidence to convict in respect of that count.
A situation may arise where, in relation to a particular count, you get to the point where, although you’re inclined to think she’s probably right, you have some reasonable doubt about an element or elements of that particular offence. Now if that occurs, you must find the defendant not guilty in relation to that count. That does not necessarily mean you cannot convict on the other count or counts. You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count.”
- The jury were also reminded that the s 93A interview had been edited in some respects, told that had been done “to remove parts of the recording that are irrelevant to the issues you must decide” and directed “not to speculate about the parts that have been edited out”. These directions followed:
“In this trial, as you would, no doubt, understand, the prosecution case depends entirely upon whether you are satisfied beyond reasonable doubt that [the complainant] is both an honest and reliable witness in the account she has given, and that is because there is no independent witness to the offences. So unless you are satisfied beyond reasonable doubt as to the honesty and reliability of her evidence and the account she has given in respect to the alleged offending then you would find the defendant not guilty. For that reason, you should examine the complainant’s evidence very carefully in order to satisfy yourself that you can act upon her evidence to [the] high standard required in a criminal trial.”
- Shortly after 2.00 pm, a note was received from the jury in which the following question appeared:
“If we believe [the complainant] to be honest and reliable, does that, by extension, rule out any reasonable doubt and allow a lawful conviction?”
The jury also asked to watch the s 93A interview again.
- When the jury returned, the trial judge answered their question:
“My response to that is no. If, having carefully considered the complainant’s evidence, you find the complainant was a credible witness, that is that she was honest and reliable, then you can act on her evidence to find that the incidents occurred as she described it and you would then need to determine whether the defendant is guilty of the offences by considering whether, upon her evidence, the individual elements of the offences have been proved beyond reasonable doubt.
I go further in answer to your question about her honest and reliability. That, of course, is one of the key issues in this trial. However, you must consider the whole of the evidence and decide on the whole of the evidence whether you have any reasonable doubt as to guilt. If you have no reasonable doubt then you must convict but if, after considering the whole of the evidence, you are left with any reasonable doubt, you must find the defendant not guilty.”
- The s 93A interview was then played followed by the complainant’s s 21AK testimony but, before they were, the trial judge directed the jury not to place undue weight on the complainant’s evidence “because [you will be] seeing it a second time”, reminded them of “the defendant’s position, that is that the events didn’t happen, that [the complainant] has made up the allegations, her story has grown” and directed them to “also bear in mind the inconsistencies in the preliminary complaint witnesses’ accounts of what she relayed to them”.
- The jury retired again at 3.29 pm but suspended their deliberations at 5.03 pm after a request that they “finish for the day”. The next day (19 September 2019), the jury continued their deliberations until noon when a second note was received:
“Are we to decide only on agreed upon facts alone or is testimony believed sufficient?”
- The trial judge answered that question in this way:
“My response to that is that you have been entrusted with deciding the facts based on the evidence presented to you in this courtroom. It is a matter for you what evidence you accept or reject. However, what you must be satisfied with is whether all the elements of each of the offences have been proved by the Crown, beyond reasonable doubt, which is the high standard of proof known to law. It is for you to decide whether you’re satisfied beyond a reasonable doubt that the prosecution has proved the elements of the offence.
If you are left with a reasonable doubt about guilt, your duty is to acquit, that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict, that is, to find the defendant guilty.”
- Deliberations continued until around 3.30 pm when the jury again asked to view the s 93A interview. That request was met in a similar way to before; the jury were warned “not to place undue weight” on the evidence “because you are seeing it a third time”, directed to “bear in mind all of the evidence in its entirety” and reminded of the defence case. The s 93A interview and s 21AK testimony were then played.
- The jury retired at 4.52 pm and returned their verdict at 6.11 pm.
Ground 1: Were the guilty verdicts inconsistent with the acquittal on count 6?
- As earlier observed (at ), under this ground the appellant contended that, on the whole of the evidence, there was no obvious explanation for his acquittal on count 6. The Court was asked from that to “conclude that the jury regarded the complainant as unreliable” in relation to that count. Because, it was argued, “the quality of [the complainant’s] evidence about the other counts was similar to or, in some cases even poorer than, the evidence about count 6”, the guilty verdicts must be regarded as unreasonable because it was not open to the jury to be satisfied of the appellant’s guilt on those counts if they were not also satisfied of his guilt on count 6.
- Where such an argument is advanced to support the conclusion that guilty verdicts were unsafe and unsatisfactory, the question for determination is whether, given the acquittal on count 6, it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on counts 1, 2, 3, 5, 7 and 8: Jones v The Queen (1997) 191 CLR 439, 450-452 and 455. The test is one of “logic and reasonableness”, and it will only be where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant convictions will be set aside: MacKenzie v The Queen (1996) 190 CLR 348, 366; R v GAW  QCA 166, .
- For the appellant, it was submitted that the complainant gave a vivid description in her s 93A interview about what she said occurred in her step-siblings’ bedroom. To the point, it was argued that the evidence was sufficient to prove the occurrence of both counts 5 and 6 as particularised and, if it is accepted that the jury had a reasonable doubt about count 6, they ought to have also entertained a reasonable doubt about count 5 given that offence was alleged to have occurred on the same occasion and in the same place. Furthermore, it was submitted that the balance of the counts on which guilty verdicts were returned (counts 1, 2, 3, 7 and 8) cannot stand because they, too, cannot be reconciled with the appellant’s acquittal on count 6. The point was made several times that the jury must have regarded the complainant’s version in support of count 6 as unreliable, or at least doubted its reliability, and if that was so then the jury should have regarded her account overall in the same way, especially given that her version on a number of the other counts was less satisfactory than the detailed version she gave in support of counts 5 and 6.
- It will therefore be seen that the whole premise for the argument in support of this ground of appeal is what was contended to be the absence of any explanation for the acquittal on count 6. Indeed, the transcript of the relevant passages from the s 93A interview which were earlier extracted (at ) or summarised (at ) would appear to support the appellant’s argument. Prior to the interpolation, “[INDISTINCT]”, in the emphasised portion of the extract, the complainant said that she was “doing [the appellant’s] doodle”, that she was “wobbling it around”, that the appellant “let her play with his doodle” and that this happened in her step-siblings’ bedroom. Immediately after that point in the transcript the complainant was asked about “this time when … [the appellant] was making you or letting you play with his penis and it was all floppy”. In particular, the complainant was asked what she was doing, and she replied, “(k)issing and sucking it”. Thus, the passages before the interpolation supply clear evidence of at least one of the particularised acts constituting count 5 (i.e., the appellant “permitted” her to “touch … his penis”) as well as the place where those acts occurred (the step-siblings’ bedroom). However, whilst the passage after the interpolation supplies equally clear evidence of another act that could constitute count 5 (i.e., the appellant “permitted” her to “kiss his penis”) and an act that would constitute count 6 (i.e., the appellant “penetrated … her mouth with his penis”) that will only be so if the passages before and after the interpolation may be read together as parts of the complainant’s account of the acts which took place in her step-siblings’ bedroom. As one reads the transcript there is little to suggest to the contrary but, as it turns out, there was something of real significance that the transcript did not reveal.
- On the hearing of the appeal, it was argued for the appellant that the passages before and after the interpolation must be read together and, to do otherwise, was simply not open on a plain reading of the transcript. For the Crown, it was submitted that, at the point of the interpolation, there was a “notable” change in the complainant’s demeanour as the child was seen moving off-screen and then, in an instant, appeared seated in an armchair. If that is accepted, the Crown argued, the jury may well have considered that the complainant was not then speaking about “what happened in the [step-siblings’] bedroom”.
- In light, particularly, of the Crown’s submissions, enquiry was made of counsel for both parties whether the Court should view the s 93A interview. The Crown advanced a number of submissions why the Court should do so, one of which was that it might assist on this question. The defence referred to the decision of the High Court in Pell v The Queen (2020) 94 ALJR 394, and submitted that “unless there is a real forensic purpose to the appellate court’s examination of such material, the court should not undertake it”. Further, it was submitted that the “ambiguity in this matter arises and is manifest from the transcript” and that the Court “will not be assisted by knowing that the child was distractible …”.
- In SKA v The Queen (2011) 243 CLR 400, French CJ, Gummow and Kiefel JJ held that the account given and the language used by a witness to be gleaned from the transcript will usually be sufficient for an appellate court’s review of the evidence. However, their Honours continued:
“It is to be expected that if there is something which may affect a court’s view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach”: at .
- Nothing materially different was said in Pell. The Court observed that the plurality in SKA had “rejected the suggestion that the mere availability of a video-recording of a witness’ evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording”, before observing:
“There may be cases where there is something particular in the videorecording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court”: at .
- Here, a submission was made on behalf of the Crown that the Court will be assisted by viewing the s 93A interview, and that course was opposed by the appellant. A number of reasons were advanced by the Crown to justify that course but, when regard is had to the principles just discussed, only one would constitute a legitimate forensic purpose in the circumstances of this case – to determine from what can be seen and heard on the recording whether the jury might well have doubted that the passages before and after the interpolation should be read together. Although the parties are not as one that this should occur, where one party submits that there is something of significance to be seen and heard and the other party contends there is not, the only way of resolving that impasse is to view the footage. That of course is not to say that the entire recording should be viewed; the forensic purpose only arises with respect to the section of the recording immediately before and after the interpolation.
- Having viewed that section of the recording, what can be seen immediately prior to the interpolation is the complainant moving off-screen and standing to the right of the vision. She is speaking in an excited manner. The time stamp is “10/01/17 15:19:24 037:01”. There is then an obvious edit, with the time stamp jumping forward by 50 seconds to “10/01/17 15:20:14 037:51”. At that point, the complainant appears centred in the vision, and seated on an armchair. She seems, at least for a short time, to be more subdued than she was immediately before the edit.
- The jury were directed to give the evidence in support of each count separate consideration and to examine the complainant’s evidence “very carefully”. In re-directions they were instructed that, even if they were satisfied that the complainant was honest and reliable, they must go further to consider the whole of the evidence to decide whether “the individual elements of the offences have been proved beyond reasonable doubt”. It is plain from the two acquittals that the jury followed these directions. There was never any evidence to support count 4. The evidence apparently relied on by the Crown at first instance (extracted above at ) was an answer given by the complainant during her s 93A interview (“But also he letted me suck it and also lick it and also hug it and play with it”), but that answer was not responsive to the question (Did you see it in the shower?) and was, in any event, cast into doubt by what immediately followed (“Well I don’t even understand him.”). Had a no case been submission made at first instance, count 4 would not have made it to the jury. Despite that, the lack of evidence to support that count would appear to have gone unnoticed by all participants in the trial except for the jury who of course watched the s 21A interview (along with the s 21AK testimony) three times. And so it was in the case of count 6. Neither counsel (who were not the same as counsel who appeared on the hearing of the appeal) made any point to the jury about the interpolation, let alone anything about the sudden change in the time stamp and the complainant’s demeanour. But, given those features, it was open to the jury to conclude that 50 seconds of the videorecording has been edited out. As such, the jury may well have considered that the complainant was not speaking after the interpolation about what occurred in her step-siblings’ bedroom or, alternatively, doubted that was so. The only indicator in that passage comes from one of SC Wruck’s questions when he asked the complainant to tell him about the time when the appellant was “making you or letting you play with his penis and it was all floppy”. However, the complainant did not use the word, “floppy” in her description of the acts constituting count 5 whereas she did use that word in her description of what occurred in the shower (counts 3 and 4). Nor when, later in the interview, the complainant was asked again about what had occurred in her step-siblings’ room did she make any mention of “kissing and sucking”; rather, she said that she was “touching … and playing with” the appellant’s penis”.
- Contrary to the appellant’s submission, there was an obvious explanation for the acquittal on count 6. On the whole of the evidence, the jury could not be satisfied beyond reasonable doubt that the act relied on by the Crown occurred in the place that had been particularised. The jury were right to acquit the appellant of that count. There was no inconsistency between that acquittal and the finding of guilt on count 5 or, for that matter, the findings of guilt on counts 1, 2, 3, 7 and 8. It is quite apparent that the jury must have accepted the complainant to have been a reliable witness and, as the earlier analysis (at  to ) demonstrates, there was evidence to support the convictions on each of those other counts.
- As indicated at the outset of these reasons, this ground of appeal has not been made out.
Ground 2: Were the verdicts on counts 1, 2 or 7 unreasonable?
- In support of the appellant’s second ground, it was argued that it was not open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 7 and, for that reason, that those verdicts were unreasonable within the meaning of s 668E(1) of the Criminal Code (Qld). When such a ground is advanced, the Court is required to make an independent assessment of the sufficiency and quality of the evidence and to 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 offences of which he was convicted: MFA v The Queen (2002) 213 CLR 606, 614 – 615; SKA v The Queen (2011) 243 CLR 400, 406, 408. If, after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence”: MFA, 623 – 624, quoting from M v The Queen (1994) 181 CLR 487, 494. Further, in R v Baden-Clay (2016) 258 CLR 308, the High Court observed that:
“Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without 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:” at 329.
- It was necessary to undertake an independent assessment of the sufficiency and quality of the evidence to support each of the convictions in order to determine the first ground of appeal. As already discussed, the jury must have accepted the complainant to have been a truthful and reliable witness and she gave evidence in support of the convictions on each of those other counts, including counts 1, 2 and 7. In addition, parts of what she said were supported by the preliminary complaint evidence.
- That said, on the hearing of the appeal, senior counsel for the appellant emphasised the lack of detail accompanying the complainant’s version in support of counts 1 and 2, the absence of any complaint “in the weeks after 10 December 2016” and what was submitted to be “uncertainty about whether anything ‘naughty’ occurred on both occasions of babysitting”. As for count 7, the complainant’s answer when she was first asked to describe what happened in her bedroom after the shower — she said that she could not remember — meant, it was submitted, that it was not open to the jury to be satisfied beyond reasonable doubt about that count. More generally, reliance was placed on the portions of the complainant’s s 21AK testimony which revealed that she was initially unsure whether the appellant had babysat her on two or three occasions. There were also differences between the versions given by the complainant to her parents on 2 and 3 January 2017. In addition to only telling her father that the appellant allowed her to “wash” his “doodle”, the complainant said nothing to either parent about the other conduct on the part of the appellant which she revealed to police during her s 93A interview.
- It is true that all of these features arose on the evidence in this case. The complainant was also initially reluctant to speak to the police about what had occurred and, in that sense, her version developed considerably as the s 93A interview proceeded. But such features are not uncommon in cases involving child complainants: R v Allen (a pseudonym)  QCA 233,  – . However, the question of reliability is for the jury to determine after receiving appropriate judicial directions, and that is what occurred in this case. Clear directions were given to the jury to carefully assess the complainant’s evidence in order to determine whether they were satisfied beyond reasonable doubt that she had given a truthful and reliable account and the arguments advanced by the appellant’s counsel in his address were summarised and then reinforced in subsequent re-directions.
- In the end, on the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 7, and for that reason this ground must also fail.
- In my view, the appeal must be dismissed.
- Published Case Name:
R v Groundwater
- Shortened Case Name:
R v Groundwater
 QCA 287
Morrison JA, McMurdo JA, Burns J
15 Dec 2020