- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
R v AAY  QCA 300
CA No 86 of 2016
DC No 2139 of 2015
DC No 540 of 2016
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 18 March 2016
18 November 2016
18 August 2016
Holmes CJ and Morrison JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with three counts of indecent treatment of a child, under 16, under 12, under care, constituting counts 1, 3 and 4, and one count of rape, constituting count 2 – where the appellant pleaded not guilty at trial on all counts – where the appellant was found guilty, by a jury, of count 1, but was acquitted on counts 2, 3 and 4 – where the appellant was the complainant’s step-father – where the appellant appeals his conviction on the sole ground that it is unreasonable and cannot be supported having regard to the inconsistency between the verdict on count 1 and the acquittals on counts 2, 3 and 4 – whether the verdict is unreasonable and insupportable having regard to all of the evidence
R v GAW  QCA 166, applied
R v Markuleski (2001) 52 NSWLR 82;  NSWCCA 290, considered
T A Ryan for the appellant
G J Cummings for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- HOLMES CJ: I have had the considerable advantage of reading in draft Morrison JA’s reasons for judgment. I respectfully agree that the jury could reasonably have regarded the complainant’s allegations in her first interview given on 8 October 2010 as reliable, given that they were made much closer in time to the incidents of which she complained and lacked the newly introduced detail of the 2014 statement and interview. The jury might well have regarded the 2014 version as having elements of reconstruction about it.
- If the jury did, then, find the 2010 interview, but not the 2014 statement and interview, reliable, it is not surprising that they were not satisfied beyond reasonable doubt of the penetration necessary to found Count 2, rape, because the complainant herself expressed some uncertainty as to what the appellant “done [sic] with his fingers”. Since the complaint which was the subject of Count 4 did not emerge until 2014, the acquittal on it could readily be explained by the jury’s reluctance to act on the 2014 version of events.
- What has caused me more difficulty is the issue of whether acquittal on Count 3 is consistence with the jury’s having accepted the complainant’s 2010 account as reliable. I depart from Morrison JA’s conclusions to this extent: it does seem to me that the complainant in her 2010 account described both looking at the appellant’s genitals and being made to do so by him. However, I think the acquittal is explicable in light of the direction given by the trial judge in respect of this count:
“Now, the complainant has given an account that – the way she was called in. She went out, and then she was called back in. That – there was also – she spoke about his commenting about using the penis to make a baby in a way which was specifically drawing attention to the penis, inviting her to look at it. So in those circumstances, if you accept that it occurred in that way, then it would follow that it was done on the basis of her account - She was describing a deliberate exposure rather than an inadvertent exposure, and, therefore, it was done wilfully. And, again, that depends on your accepting her account of the way it occurred.” (Italics added)
- As can be seen, the trial judge premised the direction on the jury accepting the complainant’s account of the appellant drawing attention to his penis by referring to using it to make a baby. That version was only given in the 2014 statement and interview. The jury having been given to understand that acceptance of that description was necessary to a finding of wilful exposure, it is unsurprising that, if they rejected the 2014 account, they concluded, in accordance with the trial judge’s direction, that they could not be satisfied there was an act of wilful exposure and hence acquitted on Count 3.
- I conclude, therefore, that the verdicts of acquittal on Counts 2-4 were not inconsistent with the conviction on Count 1 so as to render the latter verdict unreasonable. I am reinforced in that view by the fact that the trial judge gave a Markuleski direction, so that the jury was made aware that a reasonable doubt in relation to the complainant’s evidence on a particular offence was relevant to their assessment of the balance of her evidence.
- MORRISON JA: Mr AAY was the partner of the complainant’s mother. He was not her biological father. According to the complainant, when she was seven or eight he engaged in three specific occasions of sexual offending against her. They gave rise to four counts of sexual offences against a child under 12 years old.
- The charges were, as particularised:
- Count 1 – indecent treatment of a child under 16, under 12, under care – domestic violence offence; rubbing the complainant’s vagina with his hand and/or fingers;
- Count 2 – rape; penetration with his finger(s);
- Count 3 – indecent treatment of a child under 16, under 12, under care – domestic violence offence; wilfully exposed his penis to the complainant; and
- Count 4 – indecent treatment of a child under 16, under 12, under care – domestic violence offence; procured the complainant to touch her vagina in a sexual way, by putting her hand on her vagina, on the outside of her clothing, and holding or cupping her vagina/vaginal area.
- Mr AAY was convicted on Count 1 but acquitted on Counts 2, 3 and 4.
- Mr AAY appeals against his conviction on the sole ground that the verdict on Count 1 is unreasonable and cannot be supported, having regard to the inconsistency between the verdict on Count 1 and the acquittals on Counts 2, 3 and 4.
The legal principles
- Where it is contended that a verdict on one count cannot be supported because it is inconsistent with the verdicts on other counts, the applicable test is that in R v GAW:
“…Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.
However, respect for the jury’s function results in a reluctance in appellate Courts accepting a submission that verdicts are inconsistent in the relevant sense so that:
‘…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the conclusion will generally be accepted. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury’.
In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.
It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provides examples of relevant inconsistencies; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.”
Inconsistent verdicts - the evidence
The complainant’s evidence
- The complainant was born on 25 November 1998. She was interviewed twice for the purpose of producing statements under s 93A of the Evidence Act 1977 (Qld). The first when she was aged about 12, on 8 October 2010, and the second was when she was aged about 16, on 26 October 2014. In July 2014 she produced a handwritten statement which she gave to police. It was also accepted under s 93A of the Evidence Act. The complainant also gave pre-recorded evidence under s 21AK of the Evidence Act, on 18 February 2016 when she was 17.
First incident – counts 1 and 2
- Consideration of the evidence is properly conducted by reference to the particulars of the charge and the way the case was put to the jury. In respect of count 1 they were that the relevant touching involved rubbing the outside of the complainant’s vagina with his hand or fingers, directly skin on skin, prior to any penetration.
- In respect of count 2 (the rape charge) the particulars were that there was penetration of the complainant’s vagina by the finger or fingers of Mr AAY.
- The complainant gave the following evidence as to these events:
- it was dark and she had been asleep;
- they were living at a particular place at the time and she was around seven or eight; she was not sure but thought it was around when she had been kept down in Grade 3; she named her teacher at the time;
- in any event she thought it was around the time of a State of Origin game, though it could have been “some other big football thing”; in cross-examination she said she was not sure if it had just finished;
- in the second interview she said he had been screaming at the TV; she said the football had just finished; when asked what she had done that day she said “I can’t remember the day very well”;
- it occurred when she was woken up by Mr AAY who was really drunk; he said she had forgotten to eat her dessert, which was a lollipop;
- in the second interview she said they went first to the bathroom because she had something in her eye;
- he lifted her up out of her bed by the shoulders, and took her into the lounge room or kitchen; then he touched her; in the second interview she said that, as she was carried out, her head was on his shoulder and her legs were wrapped around his waist;
- the kitchen light was on but the lounge room light was off; that is how they normally had it when they watched TV; she was not sure whether they were in the same room as the TV;
- she thought she was wearing some sort of pyjama pants; he pulled them and her underwear down; in the second interview she said she was wearing a nightgown and, she thought, nothing else; she described the nightgown in detail; when asked specifically about whether she was wearing underwear she said “yeah I did I just can’t remember back to when I was younger”;
- the touching was to her “privates”, while she was being held by him; he put her down in the lounge or kitchen, “took [her] pants off and half pulled them down”, then touched her;
- in the second interview she said he was standing holding her behind the couch, with her resting on the top of the backrest of the couch; he was “grabbing my bum” and “that’s when he started fingering”; she froze up;
- as to the touching she identified her “privates” as her vagina, and pointed to where it was; she said it was with his hands; she thought it was inside her vagina as well as outside, saying “I’m pretty sure it was on the inside”, then in answer to a question as to whether she was “one hundred percent sure”, she said “I’m pretty sure but not a hundred percent sure”;
- she was asked if he used his fingers to touch the inside of her vagina; she answered “I think it was …I don’t know because I couldn’t …”; but it hurt;
- in the second interview she said that he “started using his fingers … pushing in … on my vagina”; “he was going soft at first and then started just like pushing in really hard and then sort of like down … penetrating with his fingers … my vagina … just pushing them in and it was two or three fingers”;
- she said “it was only working at first but”, and explained that as meaning “I was so young and I was a virgin still … it wasn’t going in completely … for a while and then he just sort of pushed really hard .. and that’s when it started to bleed”;
- she could not recall how long it went on for, or if he said anything while the touching was happening;
- he told her not to tell anyone or she would “get into big trouble”;
- the touching hurt on the inside of her vagina; the hurting lasted “for a day and a bit or so”;
- in her second interview she said it still hurt in the morning, and “it was bleeding a little bit” from her vagina; she thought she may have got a period and she went to tell her mother that she was bleeding “but I was sick so I wasn’t allowed in her room”; she explained that she had a cold and “[Mr AAY] didn’t want to catch it so I wasn’t really allowed to be around their room”;
- she did tell her mother that she was “bleeding from down there” and her mother was going to talk about periods; however the bleeding had stopped so her mother did not say anything;
- she did not see a doctor, nor did she tell anyone at that time; and
- after that he “started being really mean to me”; “he was mean to me before but not as mean as he was after that … and that’s when he started hitting me …”; he was yelling at her for no reason and hitting her.
- In the complainant’s July 2014 statement this incident is recounted in much the same detail as above.
- In her oral evidence the complainant affirmed the truth of what she said in the two interviews. She identified the plans she had drawn of various parts of the house, and the handwritten statement she had prepared.
- In cross-examination the complainant said she told her mother about the bleeding, which left a small amount of staining on her underwear.
- In cross-examination it was put to the complainant that these events had not happened at all, which she denied.
Evidence of the complainant’s mother
- The complainant’s mother gave evidence which included that Mr AAY: looked after the complainant and her younger sister while the mother was at work; watched football matches on TV; disciplined the complainant physically by hitting her on the head, yelling and screaming at her; and rarely bought the complainant presents, but did buy her a Bratz doll.
- She was asked about her relationship with the complainant:
“Now, in 2006, 2007 how would you characterise your relationship with your daughter, [the complainant]?---My daughter, [the complainant]? A normal mother-daughter relationship; I loved her.
And it would be the case that she’d speak to you if there was something troubling, in your experience?---Normally, yes.
Did she ever speak to you about bleeding from either the groin or specifically from the vagina in 2006, 2007, that period?---Not that I can remember, no.”
Count 3 – exposure
- The particulars of this count were that Mr AAY wilfully exposed his penis to the complainant. As put to the jury in the summing up: at a time when Mr AAY had just had a shower, was in the bathroom and was undressed, and his penis was exposed, he deliberately called the complainant into the bathroom and drew attention to the fact that she could see his penis in there.
- The jury were directed as to what “wilfully” meant: it “means it was done deliberately. I mean, it wasn’t the case where [Mr AAY] called the complainant into the bathroom while he had a towel wrapped around his waist and the towel happened to fall off just as she came in or something like that. It means that there was a deliberate exposure of the penis.”
- That was explained further:
“ … the complainant has given an account … [of] the way she was called in. She went out, and then she was called back in … she spoke about his commenting about using the penis to make a baby in a way which was specifically drawing attention to the penis, inviting her to look at it. So in those circumstances, if you accept that it occurred in that way, then it would follow that it was done on the basis of her account - She was describing a deliberate exposure rather than an inadvertent exposure, and, therefore, it was done wilfully.”
- This incident was referred to in the complainant’s first interview in 2010. In the second interview she said that this occurred when he “tried to make me touch his parts”:
- it occurred about lunch time on a weekend;
- he was getting in or out of the shower and she went to ask him something; she saw he was in the shower and walked back out; she later said she saw he was naked and walked back out;
- in the second interview she said he called her in and she did not realise he was naked;
- in the second interview she said he was holding a towel in his hand;
- he told her to come back;
- he said “don’t worry” and “told me to look at his privates”;
- in the second interview she said that he “told me that one day … pointing to himself that him and I will make a baby”;
- “he made me … look at them and then he said to touch them and I said no I don’t want to”; then “he told me again and I said no and I walked back and I ran out to my little sister and started playing with her again”; she could not recall the exact words he used;
- after the second time he asked her he stepped forward and tried to grab her;
- when it happened he was in the bathroom and she was in the lounge; in the second interview she drew a map which showed he was in the middle of the bathroom and she was just inside the bathroom door;
- when asked if she could see his privates, she answered “he was naked”; in the second interview she said she could see “everything”;
- in the second interview she said she could see his penis and it was erect and hard; and
- when asked if she had previously seen his privates she shook her head, and when asked if she had seen them after that, answered “I can’t remember”; and
- in the second interview she said “I can’t remember exactly this is like the hardest one for me to remember”.
- In the complainant’s handwritten statement this incident is recounted in much the same detail as above, except that no mention was made of seeing the erect penis, or being told to touch him as opposed to being told you can touch it, let alone being told twice.
- In cross-examination on this count, the complainant said she could not recall what she was doing before the incident: “I don’t remember exactly. Usually, I was outside or watching TV”. She clarified that: “From my recollection, we played outside quite a lot. We had a fenced-in area.”
- In cross-examination it was put to the complainant that the events had not happened at all, which she denied.
Count 4 – procuring her to touch herself
- As particularised the count was that Mr AAY procured the complainant to touch her vagina in a sexual way, by putting her hand on her vagina, on the outside of her clothing, and holding or cupping her vagina/vaginal area.
- That was essentially the same way it was put to the jury. Mr AAY put her on the mother’s bed, repeatedly asked her to touch herself on the vagina, and promised to buy her a Bratz doll if she did so. She then put her hand down over her vagina area, but outside her clothing. If she did that as a result of what he said to her, then he procured her to do that act.
- This incident was not referred to in the complainant’s first interview in 2010, as the complainant accepted. It was referred to first in the July 2014 statement, then in the 2014 interview.
- In the complainant’s handwritten July 2014 statement, this incident is recounted:
- Mr AAY called the complainant into the bedroom and gave her a hug;
- he “told me to do it to myself against the bed”;
- he offered to buy her “whatever I want”;
- she was standing near the bed and held her vagina;
- he said “to do it properly so I touched myself”; and
- he said that was enough so she left.
- In the second interview the incident was described in significantly different detail:
- one day when her mother was out he called her into his room;
- he said he would buy her a Bratz doll if she was to touch herself; she didn’t really want to so she just stood there and didn’t say anything;
- he told her to start playing with herself; she said she did not want to and he pushed her on the bed, grabbed her and asked if she would like a present, “so I did what he told me”;
- he pushed her up onto the bed; she was half on the bed, with her legs hanging down; then she sat up with her legs crossed;
- she could not remember exactly what he said but he said she needed to touch herself, and he made her grab or rub her vagina over the top of her clothes;
- she put her hands on her vagina for a while; he said that was not good enough;
- she did not stay there for very long, and ran outside to her little sister;
- she said she could not remember very well what happened next; and
- he later bought the Bratz doll for her.
- Towards the end of her evidence in the second interview the complainant said “I don’t remember this incident very well”.
- In cross-examination she denied that the Bratz doll had been bought as a reward for helping around the house while her mother was at work. It was put to her that this event did not happen at all, which she denied.
- In her first interview the complainant expressed concern over whether she had to press charges, and asked “what happens if my little sister … if he went to jail or something … what happens with my little sister”. After it was explained that such a thing was still a long way off, she was asked “so do you want to get [Mr AAY] in trouble for this”, and she answered: “I don’t mind really but I don’t want my little sister to miss out on having a dad … or to get hurt by him”. In response to a direct question she then clarified that she did want to get him in trouble. She then said “I don’t want him being so controlling and everything towards my mum”.
- In the second interview the complainant referred to the fact that she told her sister and mother about the incidents, and when she told her mother her grandmother was also in the room. She explained why she took so long to tell her mother: she did not trust her mother because they did not have a strong relationship, and she was still with Mr AAY.
- In the second interview the complainant referred to her state of mind when she gave the first interview:
“… I went in and I made a statement … I was so scared and then I didn’t want to talk about it. I didn’t think it meant anything cause I didn’t say stop when it all happened or anything like that so I told them that I didn’t say stop … and that I tried to get away from him … sort of told them a little bit of what happened and then we went home and they said they needed more information.”
- In the second interview the complainant said she had a panic attack at school and “wrote down everything that happened again”. Referring to the document she said that “I don’t really know why I just I don’t know I just needed to tell somebody”. She produced what she had written and it became Exhibit 4.
- At the time the July statement was done the complainant was living with her elder sister. She explained what happened and how it arose from her telling her sister about the events:
“[the sister] knew from my mum what had happened I didn’t tell her myself … she got a bit upset … I was living with my brother at the time and I think that was another reason she wanted me to live with her. … nothing really happened. … When I was living with [the sister] not that long ago I had a panic attack at school and went down to [named] Police Station … sort of wrote down everything that happened again … I don’t really know why I just felt like I needed to tell somebody.”
Cross-examination of the complainant
- In cross-examination the complainant agreed that her account in the 2014 statement was more detailed than that in the 2010 statement. She said that she had thought about the incidents “all the way up to 2010”, but she “just wasn’t ready to speak about them in 2010”. She said no-one had told her what to write in the handwritten document, Exhibit 4. It was put to her that the reason she remembered more incidents or details in 2014 was not because they happened but because she had dwelt on them in the intervening four years, which she denied:
“ … the things you told police in 2014 that you hadn’t told police in 2010, I suggest to you that the source of your memories might not be that you believe it happened, but it didn’t happen and the reason that you believe it is that you’ve been dwelling on those matters since 2010. Do you follow?---I don’t believe that, no.”
- In cross-examination the complainant said she could not recall if what she wrote in her July 2014 statement (Exhibit 4) was in the order they occurred, but she thought it was simply the order in which the most upsetting one was written down first: “I think it was just what was making me most upset or what I was thinking about the most”.
- As to the evidence that Mr AAY hit her, the complainant denied that it was not excessive saying that he left bruises all over her body.
- The learned trial judge asked the complainant why there was such a long break between the first statement (2010) and the second one (2014). The complainant said:
“In 2010, I didn’t really want to speak to police. I didn’t want to be there or talk or tell my story in general. In 2014, I was finally ready to do so, and it took me a very long time to get through mental health issues and everything like that.”
- In re-examination she explained that further:
“Is there any particular reason why you didn’t want to speak or you weren’t ready to speak at that time?---I wasn’t ready to talk about it. I didn’t know that [Mr AAY] was going to be away forever and whether he would be back as well.
And had that changed by 2014?---Yes.
In what way?---I was living in a safe place and – that I felt comfortable and safe. I was also just ready to speak about it and ready to get it done.”
- In re-examination she explained that at the time of her first interview in 2010 she was living with her mother, her new step-father, and her sister, whereas at the time of the second interview she was living with her elder sister’s family.
- Leave to ask further questions in cross-examination was given after the answers in the two immediately preceding paragraphs. It was established that at the time of the 2010 interview the complainant’s mother had married a Mr R, after separating from Mr AAY. The following exchange took place:
“He and your mother had broken up?---Yes.
It was quite an unhappy breakup?---It was quite an unhappy relationship.
They were – and at least in what you were able to observe your mother’s demeanour she was angry at Mr AAY, wasn’t she?---Yes.
So really there was no real risk that Mr AAY was going to rejoin your household in October of 2010, was there?---I can see that now that I’m older, but when I was 10 years old I was very terrified of him and didn’t see it that way.
HIS HONOUR: So did you think there was a risk of him rejoining the household when you went to the police and made allegations against him in 2010?---Yes.
And I take it you didn’t like him, from what you’re telling us?---No.”
Evidence of Mr R and the complainant’s grandmother
- Mr R and the complainant’s grandmother were called and gave evidence about the night in 2010 that the complainant told her mother about what had happened with Mr AAY.
- Evidence from one of the investigating officers was that there had been no investigations by police between the 2010 interview and the time that the complainant handed in her July 2014 statement.
Evidence of the complainant’s elder sister
- The complainant’s elder sister gave evidence that included: Mr AAY was a football watcher; and he used to smack the complainant, yell at her and call her horrible names. She gave some preliminary complaint evidence as to count 4:
“In June 2014 did [the complainant] tell you about the first time it happened with [Mr AAY]?---Yes.
Can you tell me about that specific conversation, please?---She told me that the very first time it happened he got her to touch herself on our – my mother’s bed.
And is that to the best of your recollection the wording she used?---Yes.”
Discussion – unreasonable verdict
- This was an unusual case in one respect. The jury had the benefit of an opening of the defence case before they heard any evidence at all. In so far as can be discerned from the cross-examination and the summing up, the defence case was that none of the events had taken place, any discipline was not excessive, and the Bratz doll was bought as a reward for helping around the house.
Counts 1 and 2
- When asked about penetration in the 2010 interview the complainant was equivocal. She did not actually say that penetration had occurred. She used phrases such as “he touched me” and “he touched my privates”. When asked what he did she said “I don’t know exactly”. She did not recall what he did, what part of the hands were used, nor how long it went on. When asked if she remembered whether he touched the outside or the inside of her vagina the answer was “I think it was both or I don’t know”. She was pretty sure but not 100 per cent sure he touched the inside of her vagina. She responded to a direct question about whether his fingers went inside her vagina: “I think it was. I don’t know because I couldn’t...”. She said she did not remember what was done with his fingers. She said it hurt on the inside of her vagina.
- The July 2014 statement contained details that were not in the 2010 interview: Mr AAY was screaming at the TV; he said that she had not eaten her lollipop dessert; they went to the bathroom first because something was in her eye; rubbing and grabbing her bottom, then rubbing her vaginal area; he was holding her head against his shoulder; the very specific descriptions of penetration with two or three fingers for 15-20 minutes; and she said nothing because she froze.
- Apart from the added details the essential narrative as to the indecent dealing was the same from 2010 to 2014, that he touched her on the outside of her vagina or vaginal area: 2010, “touched me on my privates”; July 2014 statement, rubbing on the outside of the vagina; 2014 interview, rubbing on the vagina before any penetration.
- The 2014 interview started with her expression of doubt “… at first I didn’t think it really happened but I can remember about eight I think it was”.
- The 2010 and 2014 interviews were different in two significant respects. First, in 2010 she said that she “told him to stop, I want to go to bed”. In the July 2014 statement she said she did not tell him to stop because she was too scared and froze. In the 2014 interview she did not mention saying to stop. In her oral evidence the complainant explained her reluctance to be interviewed as being partly related to her not having told him to stop.
- Secondly, the 2014 interview contained the graphic details about the bleeding from the vagina. That had not been said previously, even in the July 2014 statement.
- There was another difference that may have mattered to the jury’s deliberations. In the 2010 interview the complainant said she was wearing pyjama pants, which he pulled down, along with her underwear. Subsequently in the 2014 interview she said she was wearing a nightgown and nothing else.
- The jury may well have taken the view that the 2010 interview bore the hallmarks of truth or reliability when compared to the statement and interview in 2014. Notable in that consideration would be the addition in 2014 of details such as:
- the penetration by the use of two or three fingers at a time; she said it started with two, then progressed to three; how could she know it was two or three unless she looked, and there was no suggestion of that;
- the long period that actual penetration was said to have occurred; this went from 15-20 minutes in the July 2014 statement, to 20-30 minutes in the interview;
- the progression in the force used in the penetration, getting harder and harder;
- the fact that there was bleeding the next day;
- the rather unlikely account that she unsuccessfully tried to tell her mother about the bleeding; the jury may have thought that such bleeding would have frightened an eight year-old and that if it truly occurred she would have found a way to tell; the excuse given was that she had a cold and Mr AAY did not want to catch it, therefore he would not let her in their bedroom; however, that does not really explain the time when they were not in the bedroom, or when the complainant and her mother were together without Mr AAY;
- the rather unlikely account that having told her mother she was “bleeding down there” her mother did not speak to her about it; she said she told her mother the next day that she was “bleeding down there”, but “I’m not sure what happened after that but I think she went to work and then … [Mr AAY] told me that she was going to talk to me about periods … I didn’t know what was happening and then it just stopped so she didn’t say anything to me…”; and
- in the 2010 interview she said she had been told not to tell or there would be trouble; no such thing was said in the later statement or interview.
- The jury may have also had real difficulty accepting the later versions as to count 2. Depending as it did on proving penetration, the jury had the differing accounts mentioned above. But in addition there was the difficulty they may have felt in accepting the description of the penetration in the 2014 accounts. According to those accounts the eight year-old complainant’s vagina was being forcefully penetrated, simultaneously by two or three adult fingers, for over 15 minutes. The jury may well have reasoned that if that were true it is the sort of thing that the complainant would have undoubtedly recalled in 2010.
- That could lead the jury to one of two alternatives. One is that the complainant was not telling the truth about the penetration aspect. The other is that there was doubt about whether penetration had been proved. Either alternative could result in the jury not being satisfied about the penetration element necessary for count 2.
- If the jury were not satisfied beyond reasonable doubt that actual penetration had occurred then that would be the end of count 2. That conclusion would not, however, be the end of count 1. If the jury were satisfied that touching on the vaginal area had occurred as the complainant said in her 2010 interview, then they could still convict on count 1, even though count 2 resulted in an acquittal.
- The jury could have reached that view by accepting the 2010 interview as being a more reliable guide to what occurred. That conclusion was open in my view, not only because of the considerations referred to above, but also because of the other evidence. The complainant’s mother gave evidence that when the complainant first told her, just before the 2010 interview, what was said was that Mr AAY had touched her privates. Nothing was said about penetration or bleeding.
- Further, in the 2010 interview the complainant answered a question “Do you remember if he used his fingers to touch the inside of your vagina?”, with this: “I don't know because I couldn't…”, and she then trailed off. In context the jury could well have understood that to mean that she did not know if fingers were used because she could not see. That conclusion would have been supported by the fact that the complainant’s account of how the event occurred was that the touching occurred while she was being held by Mr AAY, having been picked up by the shoulders. That description would have the complainant being held up, facing Mr AAY. In that position it would have been impossible for her to see what was being done, and probably extremely difficult in the circumstances to tell by feel what was being done.
- Reasoning that way, as was open to the jury to do, would lead the jury to doubt the reliability of the later assertions concerning the manner of penetration and periods of time, and therefore doubt the proof of actual penetration.
- This was not a case where, on counts 1 and 2, it was penetration or nothing. In my view the jury could well have accepted the complainant’s evidence that there was touching of the vaginal area but remained uncertain whether there was penetration, or rejected that penetration occurred.
- In order to convict on count 3 the jury had to be satisfied beyond reasonable doubt that Mr AAY’s penis was seen by the complainant, and that was done wilfully by Mr AAY. The separate accounts given by the complainant suffered from differences that could have lead the jury to doubt that the complainant actually saw the penis, or that if she did so, that it was wilfully done.
- The complainant's account in 2010 had these features: she went to the bathroom unannounced, to find him showering, so she left but he called her back; she had gone in to ask him something; he was in the bathroom and she was in the lounge; she said “he made me look at them” but this seems to have been that he said more than once to look at and touch his privates; each time she said no; then she was asked if she could see his privates, she answered “he was naked”; she did not mention the penis as such, let alone give a description of it.
- In the July 2014 statement the account added new elements: he called her in rather than it being the case that she walked in and realised he was in the shower; she walked in thinking he was dressed; the pointing to his penis and the statement that they would make a baby together; he did not tell her to touch it, but said “you can touch it”.
- In the 2014 interview new details were introduced into the narrative: she was asked what she could see and she said “everything he was naked”; when prompted as to what part of the body she could see she did not refer specifically to the penis, but said “everything”; he was holding a towel in his hand; she could see his penis which was erect and hard.
- In my view the additional matters in the 2014 statement and interview were such that the jury might have thought it was unreliable embroidery on the truth. They could well have decided that the 2010 account was more reliable. If they reasoned that way then there was reason to doubt that they could be satisfied that the complainant actually saw his penis, and that if she did, it was because of a wilful act on his part.
- Count 4 sits in a separate category because it was not referred to at all in the 2010 interview. It was referred to first in the July 2014 statement and then again in the 2014 interview.
- The July 2014 statement, Exhibit 4, contained some features that were not in her second interview:
- he gave the complainant a hug first;
- he offered to buy her “whatever I want”, rather than specifying a Bratz doll;
- she was standing when she held her vagina, rather than sitting cross-legged on the bed;
- she added that he said “to do it properly so I touched myself”; and
- he said that was enough so she left, rather than saying that’s not good enough.
- Thus, there were difficulties in the complainant’s account that could well have lead the jury to doubt that it was proved. They include: (i) in one account she was standing up, and in the other sitting cross-legged on the bed; (ii) there were differences as to what he said when he promised a gift; (iii) there were differences in what he said about what she was to do; and (iv) there were differences in what he said when she left.
- As well, in the 2014 interview she said “I don’t remember this incident very well”, and she had evidently not told her mother that the Bratz doll had been given to the complainant because of what happened.
- The matters referred to above could well have lead the jury to doubt that the event occurred. Once again, that conclusion could have been reached by the jury simply reasoning that the 2010 interview was reliable, and later editions were not.
- When viewed globally, the disparities between the accounts given in 2010 and 2014, reviewed above, are such that they could lead the jury to conclude that the 2014 statement and interview were so coloured by the extra details embroidered on by the complainant, that they could only safely rely on the 2010 interview.
- There is an additional matter that could have influenced the jury’s consideration of the comparative reliability of the 2010 interview as against the statement and interview in 2014.
- The extra details of counts 1-3, and first mention of count 4, arose after the complainant started living with her sister in 2014. It was while she was living with her sister that she wrote the July 2014 statement. Her sister was with her at the police station when she had her second interview. The complainant asked for a break in that interview, during which time she saw her sister. It was on the resumption that she gave the details of count 4.
- One view of the evidence set forth in paragraph  above is that the sister wanted to change the complainant’s living arrangements because “nothing really happened” about her complaints. The complainant moved in with the sister in March 2014, and in July the statement, Exhibit 4, was done. That coincided with the complainant telling the sister about “the first time it happened with [Mr AAY]”.
- If the jury formed the view that the complainant’s sister was influential in the complainant’s recitation of the events in 2014, they could conclude that the 2014 statement and interview were not as reliable as that in 2010.
- In R v Markuleski a majority of the Court decided that as a general rule a trial judge should direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account in assessing the complainant’s evidence generally. The appellant contended that if the jury were observing the Markuleski direction they were given they should have rejected the complainant's evidence on count 1 as being unreliable.
- The direction that was given was, it was accepted, in accordance with what Spigelman CJ said in Markuleski:
“In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.
Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and R v Davies ‘as a general rule’. Its absence is not necessarily fatal (as it was not in R v Davies itself). Furthermore, as the joint judgment in Crofts affirmed (at 451), the ‘general rule’ does not apply ‘where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness’ (Footnote omitted).
It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.”
- The learned trial judge said:
“Now it may occur in respect of one of the counts that for some reason you are not sufficiently confident of her evidence to convict in respect of that count. It may occur, for instance, in relation to a particular count you get to the point where although you think she’s probably right you have some reasonable doubt about an element or elements of that particular offence. If that occurs, you find him not guilty on that charge – on that count. That does not necessarily mean you cannot convict of any other count. You have to consider the reason 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.”
- All that such a direction requires is that, on the question of the truthfulness or reliability of a complainant's evidence generally, the jury must take into account a reasonable doubt they have on one of the counts. But that does not mean that if they have such a doubt they are obliged to reject the complainant’s evidence. For example, the doubt may be as to one aspect required to be proved, rather than a doubt about the complainant’s evidence generally. Here the doubt may well have been as to whether the complainant’s evidence as to penetration could be relied upon, rather than any doubt as to whether touching occurred to satisfy count 1.
- The directions to the jury were clear and precise as to:
- the fact that they could accept parts of a witness’s evidence whilst rejecting other parts;
- that they must consider each charge separately on its individual merits;
- that the crown case relied upon the complainant’s evidence, and they must scrutinise it carefully before being able to be satisfied of guilt;
- that the various inconsistencies, which the learned trial judge reviewed, were matters for them to weigh in their considerations; and
- that the delay must also be weighed, and they were warned that they “cannot convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, as I’ve explained them, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy”.
- There is no reason to conclude that the jury has not followed the directions they were given.
- I am unpersuaded that, when looked at as a matter of logic and reasonableness, that no reasonable jury could have reached the verdicts of guilty on counts 2, 3 and 4. Once the jury concluded, as they could, that the 2014 statement and interview were unreliable, whereas the 2010 interview was, then there was a basis to have doubt as to the fact of penetration on count 2, and exposure and/or wilfulness on count 3.
- In my view, as explained above, there is a proper way to reconcile the verdicts, on the basis that the jury followed the instruction to consider each count separately, and applied to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. I do not consider that it can be demonstrated that the verdicts are inconsistent in the way referred to in GAW.
- For the reasons expressed above, I would dismiss the appeal.
- I propose the following orders:
- The appeal is dismissed.
- NORTH J: I have read the reasons of judgment of Morrison JA and adopt his Honour’s summary of the evidence, the arguments and his discussion of the issues.
- I agree with the reasons of Morrison JA and also the Chief Justice, concerning Count 3.
- I agree with the order proposed by Morrison JA.
 R v Markuleski (2001) 52 NSWLR 82.
 The particulars are at AB 170.
  QCA 166, at -, per Philippides JA (with whom McMurdo P and Holmes JA (as her Honour then was) agreed.
 As put to the jury, AB 109, 170.
 AB 111-112, 170.
 AB 177.
 AB 175. There was a formal admission that she had repeated Grade 3 in 2007: AB 158.
 AB 176. The formal admissions included that one of her teachers was Ms B when she repeated Grade 3 in 2007: AB 158.
 AB 176, 198.
 AB 26 line 33.
 AB 191, 198.
 AB 197.
 AB 174, 178, 198
 AB 191, 198.
 AB 191, 198, 199.
 AB 174, 178, 199.
 AB 199, 201.
 AB 181, 182.
 AB 179.
 AB 199, 200.
 AB 178, 179.
 AB 201.
 AB 191, 200, 203.
 AB 180.
 AB 181.
 AB 202, 203.
 AB 203.
 AB 180.
 AB 174, 179.
 AB 181, 203.
 AB 182.
 AB 204.
 AB 205.
 AB 205, 206.
 AB 182.
 AB 174-175, 181, 182.
 AB 152-157; Exhibit 4.
 Exhibit 4.
 AB 26 line 10.
 AB 32 lines 26-34.
 AB 69, 74, 75.
 AB 69, 75-76.
 AB 69-70.
 AB 70-71, 74.
 AB 111.
 AB 111.
 AB 111.
 AB 212.
 AB 183.
 AB 212.
 AB 192, 212.
 AB 213, 214.
 AB 184, 192, 212.
 AB 184.
 AB 192, 213, 215.
 AB 183, 184, 185, 213.
 AB 185, 192.
 AB 186.
 AB 185.
 AB 149, 214.
 AB 185.
 AB 213.
 AB 214.
 AB 186-187.
 AB 215.
 AB 152-157.
 AB 27 line 26.
 AB 28 line 39.
 AB 32 lines 36-44.
 AB 112.
 AB 29.
 AB 152-157.
 AB 192, 217-218, 220-224.
 AB 223.
 AB 29 line 1.
 AB 32 line 46 to AB 33 line 4.
 It was the case that the younger sister was the lineal daughter of Mr AAY, whereas the complainant was not.
 AB 187.
 AB 206, 208.
 AB 207.
 AB 207-208.
 AB 208.
 AB 209.
 AB 152-157.
 AB 208-209.
 AB 29 line 22.
 AB 29 line 42.
 AB 30 lines 4-7.
 AB 31 lines 43-46.
 AB 27 lines 13-18.
 AB 29 lines 10-15.
 AB 29 lines 35-38.
 AB 33 lines 38-45.
 AB 33 line 22.
 AB 33 lines 27-29.
 AB 93.
 AB 87.
 AB 87.
 AB 88 lines 29-34.
 AB 50.
 AB 225-226.
 AB 88.
 AB 217.
 AB 89.
 AB 88.
  NSWCCA 290.
  NSWCCA 290 at -.
 AB 113 line 36. His Honour repeated part of the direction later: AB 132.
  QCA 166 at .
- Published Case Name:
R v AAY
- Shortened Case Name:
R v AAY
 QCA 300
Holmes CJ, Morrison JA, North J
18 Nov 2016
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC2139/15; DC540/16 (No Citation)||18 Mar 2016||Date of Conviction.|
|Appeal Determined (QCA)|| QCA 300||18 Nov 2016||Appeal against conviction dismissed: Holmes CJ, Morrison JA and North J.|
|Application for Special Leave (HCA)||File Number: B8/17||21 Feb 2017||-|
|Special Leave Refused|| HCASL 142||15 Jun 2017||Special leave refused: Gordon and Edelman JJ.|