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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
DC No 94 of 2003
Court of Appeal
Appeal against Conviction
DELIVERED EX TEMPORE ON:
19 August 2004
19 August 2004
McMurdo P and Helman and Dutney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made
Appeal against conviction dismissed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where applicant convicted of rape of 13 year old – where complainant was daughter of applicant's girlfriend – where inconsistencies in complainant's evidence – where central issue was credibility of complainant and her mother – whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant – whether verdict was unsafe and unsatisfactory
K M McGinness for the appellant
M J Copley for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Qld) for the respondent
THE PRESIDENT: The appellant was convicted of one count of rape after a three day trial in the District Court at Kingaroy. He was sentenced to seven and a half years imprisonment. He appeals from the conviction only, contending that it was unsafe and unsatisfactory.
The rape was said to have occurred on an unknown day in February or March 2002. The prosecution case relied primarily on the evidence of the complainant, the then 13 year old daughter of the appellant's girlfriend. The complainant was 15 at trial. Her mother had been in a relationship with the appellant for about seven years, although the appellant lived at his own mother's house during the week because of work commitments and stayed with the complainant's family from Friday afternoon until Sunday lunch time.
The complainant gave evidence that she looked on the appellant as her father. One night whilst she was at home with him she was in her mother's bedroom reading. The appellant came in and placed his hands on her shoulders, pushed her back onto the bed, lay on top of her, kissed her, pulled her jeans down to her knees and had sexual intercourse with her whilst rubbing her breasts. He told her not to tell anyone. A white and blue floral quilt cover was on the bed. She saw blood on her pants the following day.
Her mother returned from work and asked her why there was blood on the quilt. After a lengthy discussion the complainant told her mother that the appellant had had sexual intercourse with her. Eight months later on 8 October 2002 she was questioned by a person from the Department of Families and taken to the police station where she provided her first statement saying that the rape had occurred at a particular house. Later that day she gave an addendum statement in which she said the incident had occurred after the family had moved to a different house.
She gave evidence that she had not had sexual intercourse with any other person before or after the assault. She had never before seen the appellant's penis and he did not ejaculate during the incident.
She was cross-examined at length and a number of inconsistencies emerged in her evidence. I will refer to these later in these reasons.
She was examined by a doctor on 16 October 2002. He found a tear to the hymen towards the back of the vagina consistent with vaginal penetration; it could have been caused by a penis or by two fingers including by masturbation. The tear had occurred at least a couple of weeks prior to the examination.
The complainant's mother gave evidence. She explained that her son, who lived with her and the complainant, had recently suffered a stroke as a result of tumours on his heart and has significant physical and mental impairment so that he was unable to give evidence at trial. One afternoon in February or March 2002 she returned from work and went into her bedroom. She noticed blood spots on her quilt and questioned her daughter about them. At that time the quilt was effectively spread flat out on the bed. When she asked her daughter about the blood the daughter burst into tears and they talked about all sorts of things. The girl was upset and cuddled her dog. After a while she spoke up and said that the appellant had forced himself on her and that they had had sex. In cross-examination she denied putting words in her daughter's mouth. Her son returned home from sport and she asked him to look after the complainant.
She went to the appellant's home and took him for a drive in her car. She asked him about the blood on the quilt. He was nervous and fidgety. She told him that the complainant said he forced himself on her and raped her. The appellant replied, "it was better for him to teach her than some young fellow." She told him it would not happen again and drove him home.
The complainant begged her not to go to the police. She told the appellant, however, that he was not welcome in her home and asked him to remove his belongings. Although their sexual relationship finished after her daughter's complaint she had difficulty having him remove his property from the house; because he had a bad temper she found it hard to insist, so that she continued to have some contact with the appellant for about six months.
She washed the quilt once after the incident and placed it in a cupboard. It was then used only once on her bed under another doona. She did not form another relationship with a man until August 2002 and that relationship did not become sexual until August or September of 2003.
In cross-examination she said she thought she told the police that there were two episodes of sexual assault and that the complainant must have told her this. She agreed that at the committal proceedings she said that when she first confronted the appellant about the blood on the quilt he said it must have come from cutting up liver and been transferred from his shirt to the quilt. She initially agreed that the appellant did not actually admit to the rape and when asked, "did he tell you it didn't occur" answered, "I gather so. Yes, your Honour," but later when asked, "Now, is it the case that at the roadside meeting...my client denied having sex with her?" she responded, "Not as far as I know. I don't think he did." The complainant maintained some contact with the appellant under the watchful eye of her mother over the following six months, "out of respect for him" and because of their long standing relationship.
The forensic evidence was that the blood and some other stains on the quilt gave a positive reaction to blood and spermatozoa, but with no DNA profile. Two other areas of seminal fluid were located with the same DNA profile as the mother's new boyfriend and mother. This evidence appeared inconsistent with the mother's evidence about her sexual relationship with the new boyfriend.
The appellant made a formal admission that his penis was uncircumcised. He did not give or call evidence.
The appellant contends that on the whole of the evidence, in particular because of the inconsistencies in the complainant's evidence, that the jury could not reasonably have convicted him. Those inconsistencies relied on by the appellant include the following. In her first statement to police, which was incorporated in her evidence-in-chief, the complainant said the offence happened at house A whilst in her addendum statement she said it happened at house B; in her statement she said she was on the floor when the appellant first entered the bedroom; at the committal she said she was on the bed and in cross-examination at the trial she said she was on the floor. In her statement to police she said the offence occurred on a weekend; at the committal she said it occurred on a week day and in cross-examination at trial she was unsure. In her statement she said the offence occurred at night; at the committal she said it happened about 4.00 p.m. At the committal she said the appellant had stayed the night of the incident, but in cross-examination she was unsure. She told police in her statement that she voluntarily sat on the bed; at the committal and in cross-examination she said he grabbed her by the arms and pushed her onto the bed. At the committal she said she did not resist because she thought the appellant was mucking around and playing a game, but in cross-examination she said that she did not know what was going to happen and was uncertain whether the appellant was mucking around having a game. In her statement and in cross-examination at trial she said she told the appellant to get off her, but at the committal she could not recall whether she said anything or screamed, and then said that she did not say anything. In her statement to police and in cross-examination she said she was wearing a belt, but at the committal she said she did not have a belt on and agreed that if she had been wearing a belt it would have been impossible for the appellant to undo it, because she was trying to push him off and he had his left hand on her shoulder. In her statement to police she said the appellant was not wearing a belt but at the committal she said he undid his belt. In her statement she said that the appellant pulled her jeans down to six inches above her knees, but at the committal she said he pulled her jeans down two inches and later that her jeans were pulled down to just above her knees. In her statement and at committal she said she saw the appellant's penis outside his jeans, but in cross-examination said that because of the position they were in, she could not see his genital area and when confronted with her earlier contrary evidence, was unsure which version was true. At the committal she said she felt no pain when he penetrated her whilst in cross-examination she said that when he inserted his penis it was painful. At committal she said that her mother did not make her see the appellant over the months following the offence, but she saw him because she wanted to, whereas in cross-examination she said she saw him because her mother wanted her to see him.
The appellant also emphasises the following parts of the evidence. When the complainant first spoke to police, she denied that anything untoward had occurred with the appellant and she had no explanation at trial for this inconsistency. She phoned the appellant in September 2002 after the incident and asked if she could stay at his house when she had a fight with her brother. She told the appellant's mother that he had done nothing to her. She told her teacher that she would be happy to live with the appellant. She said she did not know the difference between a circumcised or uncircumcised penis whereas in her statement she described the appellant's penis as uncircumcised. The appellant also emphasises that the complainant denied having a pregnancy test whereas her mother gave evidence of a pregnancy test.
These matters were all before the jury and many were emphasised in cross-examination and in the defence address. Despite a thorough cross-examination, the complainant maintained the essence of her complaint, that the appellant had sexual intercourse with her without her consent in February or March 2002. There was no evidence to the contrary. Her complaint was supported by her mother's evidence that the appellant said, "it was better for him to teach her than some young fellow" and by the mother's evidence of blood and other marks on the bedding when she returned from work.
The appellant points to the position of the blood stains on the quilt and says it was inconsistent with the complainant's evidence as to where sexual intercourse took place on the bed. But as the respondent points out, the quilt was not necessarily flat on the bed at the time of the offence; there is no evidence as to the position of the quilt at that time.
The complaint to the mother, although not entirely impromptu, does show consistency of conduct. The lateness of the complaint to the police was explained to some extent by the evidence of the mother.
Whilst little weight could be placed on the medical evidence of the old tear to the hymen, it was not inconsistent with the complainant's evidence.
The credibility of the complainant and her mother was the essential issue for the jury to determine. The learned primary Judge in summarising the defence case to the jury referred to many of these inconsistencies. The prosecution case was that the inconsistencies were of a type to be expected in the circumstances bearing in mind the complainant's age and the upset of the incident and that these inconsistencies did not discredit her essential evidence. The Judge also told the jury to consider the possibility that the complainant's mother was not accurate in recalling her conversation with the appellant after confronting him because of her emotional state at the time.
The jury had the opportunity to consider all these matters raised by the appellant but was still prepared to accept the complainant's evidence beyond reasonable doubt. None of the matters raised by the appellant, either alone or in combination, required the jury to reject the complainant's evidence. On the whole of the evidence before them, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.
I would dismiss the appeal.
HELMAN J: I agree.
DUTNEY J: I agree.
THE PRESIDENT: That is the order of the Court.
- Published Case Name:
R v TG
- Shortened Case Name:
R v TG
 QCA 304
McMurdo P, Helman J, Dutney J
19 Aug 2004