The Queen v S[1997] QCA 15

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 499 of 1996

Brisbane

[R. v. S]

T H E     Q U E E N

v.

S

Appellant

Fitzgerald P.

McPherson J.A.

Fryberg J.

Judgment delivered 4 March 1997

APPEAL AGAINST CONVICTION DISMISSED.

Joint reasons for judgment of McPherson J.A. and Fryberg J., separate dissenting reasons of Fitzgerald P.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 4 March 1997

The circumstances giving rise to this appeal are set out in the joint reasons for judgment of McPherson J.A. and Fryberg J.

I have previously expressed my concerns about convictions for such offences in circumstances such as the present.^[1]  This case confirms those concerns, and causes me to question whether the most important part of some criminal trials is taking place in interview rooms in police stations in the absence of the accused and the jury, instead of in courtrooms.

I find it impossible to allay my disquiet at the appellant’s convictions, and cannot discern how the jury could have been satisfied beyond reasonable doubt of his guilt.

Count 3 provides the clearest example.  According to the complainant’s recorded police interview, the appellant attempted to put his penis in her mouth on an occasion between 1 May and 10 December 1995.  She was then ten years old.  The trial occurred less than a year later, commencing on 5 November 1996, when the complainant was eleven years old.  Her sworn evidence under cross-examination at trial was as follows:

“Well, has he ever tried to do anything to you with his private part, with his penis?-- Not that I can remember, no.

Okay.  Now, think really carefully?-- I am.

You are?  Okay.  So, he has never tried to do anything to you with his penis?-- Not that I can remember, no.

Have you ever seen him touching his penis?-- No.

Okay.  He has never touched you with his penis?-- No, I don’t remember.

Has he ever tried to do that?-- No.

No?-- No, I don’t think so.

You told the police officer that on one occasion he tried to put it in your mouth.  Do you remember saying that?-- No, I don’t.

Well, if you had said that, do you think - well, if it had happened, do you think you would remember it now?-- Yes.

You would think so, wouldn’t you?-- Yeah.

Do you remember when you spoke to a doctor - that first night after you spoke to your grandmother - do you remember telling him that he, that is S, in fact put his penis in your mouth?-- No.

Well, if he put his penis in your mouth, you wouldn’t forget it, would you?  You couldn’t forget it?-- I don’t know.

Do you think you would be able to remember something like that?-- Yeah.

And you just can’t remember anything like that happening?-- No.

Well, can you say that that didn’t happen?-- No, because I can’t remember.”

The concern which I feel with respect to the veracity and reliability of the statements made by the complainant in her recorded interview prior to the trial, which provided the only foundation for the appellant’s convictions, causes me to conclude that the jury should have entertained a reasonable doubt about the appellant’s guilt.^[2]

I would accordingly allow the appeal, quash the convictions and order that verdicts of acquittal be entered.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & FRYBERG J.

Judgment delivered 4 March 1997

The appellant was convicted at a trial in the District Court at Brisbane of three counts of indecent dealing with a child under 16, with the added circumstance of aggravation in each instance that the child was under 12 years old and was in the appellant’s care.  The first two offences were alleged to have been committed between 26 February 1994 and 31 July 1994, and the third between 1 May 1995 and 10 December 1995.  He was found not guilty of a fourth count of indecent dealing alleged to have been committed between 8 September 1995 and 6 January 1996.

The complainant girl was born on 21 May 1985 and so was 8 or 9 years old at the time when the first offences are alleged to have been committed.  She was 11 when she gave evidence at the trial in November 1986.  She is the daughter of Mrs. H, who died on 9 February 1991, after a relationship with the appellant which ended in mid-1987.  The complainant is not the natural child but a stepchild of the appellant, although in January 1988 Mrs H had another child N, who is the appellant’s daughter.  After Mrs. H. died in 1991, the two girls went to live with the appellant, who either then or later was married to his present wife J, to whom the complainant refers as her mother.  The couple have since had children of their own.

The appellant is a truck driver aged 50 or 51, who was not legally represented on the hearing of the appeal.  Not being confident of his ability to address us effectively, his wife J was allowed to assist him.  She spoke persuasively and with some feeling on his behalf.   She urged us to view the video recordings of interviews with the complainant and to read the summing up by the trial judge.  We have done so with close attention.

From 1991 the family lived in Brisbane.  For the purpose of placing events in some form of chronological sequence, it is helpful to mention that in mid-1994 there was some matrimonial dispute between the appellant and his wife, which led to her returning to live with her parents in North Queensland, taking the children including the complainant with her .  The difference was later resolved, and the family returned to their home in Brisbane at the beginning of April 1995.  The complainant said in effect that the first two offences took place before they went to North Queensland and the last two after they returned.  She claimed to be able to place one or both of the later offences by reference to the appellant’s 50th birthday, which was on 9 September 1995.

As a result of complaints made to her grandparents early in 1996, the complainant was interviewed by police on 7 January 1996 and again on 11 January 1996. She underwent a medical examination on 9 January 1996.  Dr Woods, who conducted the examination, said at the trial that in his opinion “significant sizable and forcible penetration of the vagina” had not occurred. There was no evidence of any rupture to the hymen, although that conclusion did not rule out the possibility of  a touching of the vagina in a manner amounting in law to indecent dealing.

On the hearing of the appeal, no criticism was made of the summing up.  His Honour directed the jury clearly, and on more than one occasion, in accordance with R. v. George [1980] Qd.R. 346.  The appellant and his wife said they were happy with the judge’s conduct of the trial.  The complaint is in substance that the jury verdicts of guilty returned on the first three counts are unsafe and unsatisfactory and should be set aside.  In that context, it should be said that the verdict of not guilty on count 4 can, as Mr Martin for the Crown suggested, be explained on the basis that the jury were not satisfied that there was any touching of the complainant that was indecent.  Count 4 arose out of an occasion when, according to the complainant’s account of it, the appellant took her to a shed that served as a garage at their home at Brisbane.  This was no more than a couple of weeks after his 50th birthday on a night when her mother was at bingo.  He lifted her by the waist on to the bonnet of a black Ford Fairlane parked there, lifted up her nightie and was about to pull her pants down when she stopped him saying “No”.  He called her a “sook” and told her never to “try a stunt like that again”.  She ran back to the house.  According to what she said, no part of his hand had gone inside her private parts at the moment when she pulled her nightie down again; his hand had been “just on my belly button”, when he pulled it out.  The jury may well have considered that no indecent dealing had taken place when he desisted.  The prosecution did not rely on his actions as constituting an attempt.

At the trial, the evidence before the jury included video recordings of the two interviews with the complainant in January 1996, which were admitted pursuant to s.93(a) of the Evidence Act 1977, together with the complainant’s oral testimony given before the jury. The appellant did not himself give evidence.  The account given by the complainant in the January interviews, and particularly the second of them, was, by comparison with some other proceedings for offences of this kind, accompanied by detail of time, place and occasion.  However, both in quality and extent her evidence at the trial fell well short of the standard of the second interview.  It is possible, but only with considerable difficulty, to identify events in her sworn testimony with incidents recounted in her interviews.  Furthermore, at the trial she gave evidence of only three instances of alleged indecent dealing, one of which was the incident involving the Ford Fairlane as to which the appellant was acquitted.  When pressed in chief or cross-examination for detail of events or dates the complainant at the trial generally responded by saying she could not remember. 

Between what she said in her interviews and in her evidence at trial, there were discrepancies some of which may be considered substantial.  Differences of that kind were, with some degree of emphasis, pointed out in the course of summing up.  They inevitably prompt questions about possible motives that the complainant might have had for fabricating charges against the appellant.  She admitted she harboured a sense of grievance against the appellant and J, claiming that she was “whacked” or “belted” for things she had not done, and that she was required to perform domestic tasks that she considered should have been carried out by her parents.  She agreed she wished to get away from the family at Brisbane, and to go to live with her maternal grandparents, with whom she and N have resided since January 1996.  It is apparent, and not at all surprising, that these events have engendered some ill-feeling in the wider family circle.

They are matters capable of affording a motive for fabricating charges and evidence of the kind now being considered.  In cross-examination the complainant was asked the following questions:

“Well, look ... just to be clear on this, what I suggest to you is that you were absolutely sick and tired and fed up with living at S and J's house? --- Yep.

That you had to do something to get in with your grandparents ? --- No.

And that you knew you just couldn’t ask because you wouldn’t be allowed to ? --- Yes, I knew that.

And that the way you got the change to occur was by accusing S of doing improper things to you? --- Yes.

I’m suggesting to you that what you were saying simply wasn’t true, that you made it up? --- Nope.

That you made it up just to get out of the house? --- No, I didn’t.

See, you also said that J used to hit you very hard too, didn’t you? --- Yes.

And leave bruises on you? --- Yes, sometimes.

The first time you ever mentioned that to anybody was at the same time as you mentioned all this? --- I don’t - can’t remember.

Remember that ? --- No.

That’s what you complained of, isn’t it? --- Can’t remember.”

The jury cannot possibly have been ignorant of the tendency of people, old or young, to tell lies in order to get their way in matters closely affecting their interest.  In the present case, their attention was forcefully drawn to that possibility both by the cross-examination and in the summing up.  The trial judge warned in no uncertain terms of the dangers of acting on uncorroborated evidence of a complainant in relation to charges of this character.  There is no reason for supposing that the jury wilfully disregarded the warning.

Judging by what appears from what she said in the interviews, the complainant is an intelligent girl.  There is more than one possible explanation for her professed inability at the trial to remember details of the incidents related at the interviews.  One is that she had genuinely forgotten it.  That may seem unlikely; but it is no doubt possible that, now that her domestic situation has altered, she has made a deliberate effort to put those events out of her mind, and has succeeded in doing so.  There are indications in the transcript of the proceedings at trial that, not surprisingly, she found the process of testifying in court a stressful experience.  By the time of the trial she may have been unwilling to re-live events that she would naturally have preferred to forget.  The jury were entitled to adopt all or any of these or other rational explanations that occurred to them.  The complainant’s frank admission in cross-examination that she wished to leave the appellant’s home is not, either necessarily or at all, inconsistent with the truth of her complaints against the appellant.  Indeed, on one impression of them, they are some indication of her veracity.

Whether or not the complainant was telling the truth was a matter for the jury.  The case is not one in which there are reasons for supposing that, in determining that question, the jury must have gone wrong.  On the material, it was fairly open to them to arrive at the verdicts they returned.  In recounting the incidents that were later charged in the indictment, the complainant in her second interview gave, when she was asked for it, details of a kind that it would have been difficult for her to fabricate on the spur of the moment.  For example, in relation to what formed the first count, she said she was in the lounge dressed in her nightie and pants lying on a chair watching a movie on television, when the appellant put his finger in her private part and then used his tongue to lick it.  She said he was “crouched up” beside her, using his right hand to steady or hold himself up on the floor and his left hand to touch her.

In relation to the second count, a few nights later she was on a mattress in the lounge watching Lethal Weapon on television.  Her mother and the other children were in bed.  The appellant lay down beside her on the mattress.  She said he made her hold his penis and then licked her private part.  He had earlier had a pair of jeans on, but was then wearing only his underpants, which were red or blue.  He took her hand and put it on his penis inside his underpants.  By that time, he was leaning against a chair.  He stopped when he heard the toilet flush. 

The third incident was after they came back from North Queensland but before the appellant’s 50th birthday.  He took her to the shed after 9.30 p.m. at a time when her mother was asleep.  He put a tarpaulin down on the old carpet at the end of the garage and lay down beside her.  He pulled his penis out and tried to put it in her mouth, by pushing her head towards it with the palm of one hand.  She said “No”, and he started rubbing his hands along her legs.  She got up and ran back upstairs, and went to bed without saying goodnight.

The only other matter meriting reference arises out of something put to her in cross‑examination.  While she was attending a North Queensland school she and another girl went to the headmaster with a tale about an attempt by someone to entice or pull the girl’s sister into a car.  She agreed with counsel that the story was later discovered to be a lie, but denied it was she who had made the complaint, saying she had merely accompanied the other girl to see the headmaster.

On appeal, the appellant’s wife tendered a letter dated 27 February 1996 from the headmaster of the school, which referred to the matter.  From this it appears that the complaint was made on 18 August 1994, which was evidently the day after the principal of another State school had passed on to the complainant’s headmaster a report about threatening behaviour by occupants of a car outside that other school.  According to the letter, it was the complainant who reported that she and a friend had attempted to entice her into a car.

The incident is capable of arousing some feelings of disquiet about the complainant’s veracity; but the matter was put to her in cross-examination, and it went to her credit only and not to any issue in the trial.  The headmaster’s letter was not available in the court at the time of the trial.  It was, however, not a written statement by the complainant, but by the headmaster, and as such it could not have been tendered under s.19 of the Evidence Act to contradict her evidence.  To contradict her by proving the truth of its contents, it would have been necessary to call the headmaster as a witness.  It is doubtful whether his evidence about the matter would have been directly admissible.  It went to the complainant’s credit, and so would on the face of it have been excluded by the finality rule in Ready v. Brown (1968) 118 C.L.R. 165.  In any event, no attempt was made to call him to give evidence at the trial.  The word “ relative”, in the expression “relative to the subject-matter” of the proceeding in ss.18 and 19, is construed as meaning “relevant”.  See Cross on Evidence, Aust.ed. 1991 §17535.

The letter tendered on appeal must therefore be rejected as inadmissible.  The overall result is that there is no proper basis on which this Court could interfere with the verdicts of the jury.  They were directly confronted with the question whether the complainant was telling the truth at the trial, at which the appellant himself gave no evidence to contradict what she alleged against him.  It was for the jury to decide whether they were satisfied beyond reasonable doubt by the complainant’s account of what had been done by the appellant.  Despite the decline in quality and detail of her sworn evidence at trial, the case is one in which it was fairly open to the jury to accept her version of the events as she recounted them at the interview.

The appeal against conviction must be dismissed.