The Queen v W[1999] QCA 190

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 459 of 1998

Brisbane

THE QUEEN

v.

W

Appellant

McPherson JA

Thomas JA

Muir J

Judgment delivered 28 May 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

CONVICTION ON COUNT 5 SET ASIDE BUT APPEAL OTHERWISE DISMISSED.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 28 May 1999

12. [1]
    I have read and agree with the reasons of Muir J.  In respect of count 5, the appeal should be allowed; and the conviction and verdict set aside.  Judgment of acquittal should be entered on that count, as to which I would  not order a new trial.  Otherwise the appeal should be dismissed.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 28 May 1999

12. [1]
    I agree with the reasons which have been prepared by Muir J.
13. [2]
    There was a moment during this trial at which seemingly reluctance or ambivalence on the part of the complainant led her to say that she could not remember what had happened to her at material times and places.  Counsel for the appellant, by means of leading questions, persuaded her to agree that if she could not now remember such things they had not happened.  At that point the learned trial judge, in the absence of the jury, intimated to defence counsel that the selective questioning did not necessarily grapple with the notion whether the events occurred or not, and that he was minded to tell the jury in due course that they might look at it in that way.  It is important to note that his Honour did not make any ruling or direction.  If defence counsel had been content to leave the matter there, the eventual evidence available to the jury, and available for consideration by this court, would have been considerably weaker than it eventually turned out to be.  It was a forensic decision for counsel whether to retain the evidence in its weakened state and suffer any comment that the learned trial judge might properly make in due course, or to broaden his questioning in order to allay the concerns expressed by his Honour.
14. [3]
    Counsel chose the latter course, and in the event the forensic advantage of the unwilling witness was lost.  There was in my view nothing improper in the action taken by the learned trial judge and it cannot be said that his intervention was unjust or that it has led to any injustice or to the loss of a fair trial on the part of the appellant.
15. [4]
    The notice of appeal contained a ground that his Honour erred in admitting statements of the complainant under s 93A of the Evidence Act 1977, but counsel for the appellant rightly conceded that the video interview between Constable Evans and the complainant was properly admissible under that section.  Difficult questions may arise when there is a conflict between such a statement and the evidence of the maker of the statement at trial.  In the present matter the initial tension between the complainant's evidence in court of inability to remember what happened and the s 93A statement was considerably reduced by her subsequent answers in cross-examination in which she graphically recalled the relevant events.  This was not then a case where it was necessary to suggest that greater weight be given to the s 93A statement than to other evidence.  It is worth noting that although s 101 of the Evidence Act renders the out of court statement admissible as evidence of the facts stated, under s 102 the question of the weight to be attached to the statement is dependant upon the circumstances in which the statement is given.  Section 102 appropriately underlines accuracy and truth as the objective.  It is not necessarily the case that accuracy and truth are more likely to emerge under relaxed conditions of interview than during the formal atmosphere of a trial, or vice versa.  Generalisations in this area are to be avoided.
16. [5]
    In the present case the s 93A statement is properly reconcilable with the evidence given by the complainant at trial when it is read as a whole, including her responses under further cross-examination .  The directions given to the jury in this respect were adequate and there is no cause to think that the acceptance by the jury of her complaints against the appellant was unreasonable.
17. [6]
    I agree with Muir J that because of a disparity between the Crown's particulars and the summing-up in relation to count 5, the conviction on that particular count should be regarded as unsafe.  That however is a discrete matter which has no impact upon the appropriateness of the convictions on all other counts.
18. [7]
    I agree with the orders proposed by Muir J.

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 28 May 1999

12. [1]
    The appellant appeals against his conviction in the District Court at Brisbane of 6 offences of a sexual nature committed against the daughter of a woman with whom he was residing in a de facto relationship.
13. [2]
    The offences for which the appellant was tried, the particulars pertaining to those offences and the jury’s verdict in each case is as follows -

12. [3]
    The only ground of appeal argued on behalf of the appellant is that “the verdicts of the jury are unsafe and unsatisfactory”.
13. [4]
    The complainant was born on 22 December 1986. The offences were alleged to have been committed between 6 October 1996 and 9 July 1997 when the complainant was living with her mother and the appellant. The complainant was thus almost 10 at the beginning of the period covered by the offences. The complainant’s father gave evidence that the complainant ceased living with her mother at the time of the May, June school holidays in 1997. On 12 October 1997 the complainant made a complaint to her father about the appellant’s conduct. The father took her to the police the next day. However, the complainant was not interviewed by any police officer until 18 October 1997 when a video and cassette recording was made of the interview which then took place. The complainant was medically examined on 23 October 1997 and she was further interviewed on 28 November 1997.  Video and audio tapes were made of that interview also. 
14. [5]
    The appellant’s counsel submitted to the trial judge that he should, in the exercise of his discretion, exclude the second statement on the basis of the delay between the first and second interviews and the risk of corruption of the complainant’s evidence arising out of the likelihood of family discussion as well as possible discussion and pressures taking place through communications at school and with counsellors. The appellant’s counsel was unable to identify to the trial judge any matter in the second statement which might suggest that it was “corrupted” or unreliable. The trial judge then refused the application and admitted the statements under s.93A of the Evidence Act 1977.
15. [6]
    The offences charged and the particulars given in respect of them were taken from the complainant’s records of interview. There was thus evidence of the offences, as particularised, before the jury.
16. [7]
    At the trial the complainant was called by the prosecution to give evidence. Her attention was drawn to the fact that she had spoken to Constable Evans (the officer who conducted the interviews). This exchange then occurred:

“And you described a number of things to her in those interviews; is that right?-- Yes.

Now, can you tell us or show us or pick up the photographs, sorry, and tell us which incident occurred in which area? Yes. That’s Exhibit 6, again, is it?-- Yes.

Did something happen in that room?-- Yes.

Do you recall what happened in that room?-- Yes.

Can you tell us? Is there any other areas that you recognise - we’ll come back to that?-- I recognise all the rooms and areas.

Yes. Did anything - we looked at Exhibit 6, what about your bedroom? Did anything happen in your bedroom?-- No.

No. All right. What about - there’s a garage, is there?-- Yes.

Or a shed?-- Yes.

Do you recall anything happening down there?-- No.

All right. The bathroom?-- No.

You don’t recall anything happening there at all?-- No.

All right. Now, what was your memory like when you spoke to Andrea, was it better than it was today?-- Yes.

And you told her a number of things in the course of this interview. Were those things you remembered at that time?-- Yes.”

The evidence in chief of the complainant then concluded. The appellant’s counsel made a no case to answer submission which was rejected by the trial judge.

12. [8]
    The appellant’s counsel, in cross examination, suggested to the complainant that -

“... if something had happened in any of those rooms that have been pointed to you, you would remember that here today, wouldn’t you?”

The complainant agreed. The appellant’s counsel then asked -

“And because you can’t remember that here today, that would mean nothing happened in those room; that’s correct, isn’t it?”

The complainant again replied in the affirmative.

12. [9]
    The appellant’s counsel then made a further unsuccessful no case to answer submission.
13. [10]
    After the cross-examination resumed, the appellant’s counsel questioned the complainant about her knowledge of sexual matters and conduct which was appropriate or inappropriate. He  established that she was aware at relevant times that it was “bad touching” and “a serious thing” for a male to touch a young girl’s “private parts” or her “breasts”. The following exchange then occurred -

“All right. If bad touching happened in ‘96, ‘97 by anyone, you would be able to tell us here today about that, wouldn’t you?-- Yes.

But you can’t, can you?-- No.

You can’t tell us that, and you see, you recall I went through some bad touching with you a moment ago?-- Yes.

And we spoke about touching on the breast?-- Yes.

Touching in the vagina area?-- Yes.

Or the private part area, touching of that area with the doodle?-- Yes.

And I didn’t mention this, but bad touching would include putting the doodle near the mouth of a young person, for example. Would you agree with that?-- Yes.

You knew about those bad sorts of touching before W came to live with you. That’s right, isn’t it?-- Yes.

If something like that happened over the last two years you’d be able to tell us about that today, wouldn’t you?-- Yes.”

Immediately after this exchange, the complainant appeared to accept the assertion that no such conduct took place between her and the appellant.

12. [11]
    The appellant’s counsel then put to the complainant that she wanted to return to live with her mother but didn’t want the appellant living in the house. The complainant agreed. The following exchange then took place -

“You know that if you tell somebody - tell the police, for example, that W touched you in a bad way, he would get taken away from the house. That’s right, isn’t it?-- Yes.

And that’s why you say here today that he touched you in a bad way. That’s right, isn’t it?-- Yes.

You see, what I’m suggesting to you is that you’re making that up to get him out of the house?-- No. I just don’t want to talk about it.

I beg your pardon?-- I just don’t want to talk about it because, like, I’m upset.”

12. [12]
    The trial judge, in the absence of the jury, then expressed concern that the questioning of the complainant by the appellant’s counsel may have been unfair. He said, in effect, that it was appropriate that the appellant’s counsel “squarely” put the offences as particularised to the complainant but gave no formal ruling or direction. The following is the relevant passage in the summing up -

“HIS HONOUR:Your cross-examination is a matter for you, but at the same time fairness or unfairness is a matter for me.

MR BROWN:I understand that, Your Honour.

HIS HONOUR:It does seem to me that some of the questions you put, I don’t think, are really being fair to her in the sense of actually grappling with the notion of whether these events occurred or did not occurred (sic).

MR BROWN:I understand that, but I outlined, as much as I could, what are the substance of the details.

HIS HONOUR:Well, I’m not sure about that because to my mind you might be trying to be sensitive about it and cautious about it, and while I understand what might be involved in bad touching or what might be involved in touching breasts or what might be involved in touching between legs, to in a sense ask a question which says, ‘If those things occurred you would be able to remember them today?’, well, she is saying,‘Well, yes.’ You’re implying by your next question, ‘Oh, well, because you’re not then forthcoming in the detail to my question, therefore they didn’t happen.’, and I would be, I think, bound to tell the jury that they might have to look at it that way; that your questions and the answers given do not necessarily carry the implication that these events did not occur because of the way the question has been put.”

12. [13]
    The appellant’s counsel acceded to the trial judge’s intimation. The result, rather predictably, was to adduce further evidence against the appellant.
13. [14]
    A summary of that evidence is as follows -

●Whilst the complainant’s mother was working on night shift the complainant would take her into her mother’s room, take her boxer shorts off, rub his penis against her vagina and insert it. She said that the appellant’s first sexual dealing with her was of that nature.

●The appellant would suck on her breasts whilst her mother was on night shift and  kiss her vagina.

●After one such incident, she had vaginal bleeding whilst in her mother’s bed. She saw blood on the bed and on a cleaning rag which her mother kept beside the bed.

●In the course of being questioned about such occurrences she said -

“The same things happened over again.”

●When asked if she could say whether or not “anything else like this happened anywhere else in the house?” she responded “when I go for a shower ...”. She was interrupted and then proceeded to give an account of an incident in which the appellant was naked in the shower with her, rubbed soap on his penis and inserted it in her vagina. (109)

●She admitted that at the committal hearing she had agreed that she couldn’t say whether it was a penis or a finger that “was inside you”.

12. [15]
    Towards the end of the complainant’s cross-examination, the following occurred -

“You’ve mentioned an incident in the bedroom initially?-- Yes.

Are you not able to say when that occurred, whether it was ‘96 or ‘97, I take it? That’s the first incident you’ve spoken about?-- Yes.

You’ve mentioned this incident that you say occurred in the shower. Can you tell us about any other incidents that might have occurred anywhere?-- No.

HIS HONOUR: D, is there a reason for that?-- I can’t remember.”

12. [16]
    After an adjournment, the appellant’s counsel reminded the complainant that she had said to the interviewing officer that something had happened in the garage. Initially she said she could not remember such an incident. The appellant’s counsel then referred her to a transcript of her evidence at the committal hearing where she had said of the appellant’s penis - “He made me suck it ... but I pulled my head away from him, so I didn’t actually get it” and where she had agreed that she didn’t touch the appellant’s penis at all in the course of this alleged incident.
13. [17]
    The medical practitioner who examined the complainant on 12 November 1997 gave evidence that on examination the complainant’s hymen did not look normal in appearance and had a number of tears through it. He said he would have expected the hymen to be intact but instead he found -

“In a number of places the hymen or hymenal tissue had been - there was evidence the hymenal tissue had been torn and had then flopped back into the vaginal opening. So there was evidence that there had been force applied to that area.”

He said that this effect could have been produced by “anything from a penis to a finger to an object”. He thought it unlikely that the condition of the hymen could have been caused by a fall in the bath or by normal childhood activities.

12. [18]
    On the appeal, the appellant’s counsel referred to the above pattern of evidence and submitted that it demonstrated that the verdicts of the jury were unreasonable.
13. [19]
    There were aspects of the complainant’s evidence which give rise to concern. The complainant admitted that she wanted to return to her mother, that she didn’t want the appellant in the house and that if she gave information to the police about his touching her “in a bad way” he would be taken from the house. She further admitted that that is why she was giving evidence that the accused touched her “in a bad way”. She did refuse to concede, however, that she was making up her evidence.
14. [20]
    Her evidence on trial did not support count 4, as particularised (the garage incident), count 3, as particularised (the incident with the vibrator) or count 5, as particularised (an allegation of oral sex). In his summing up the trial judge placed the latter incident in the bedroom whereas the particulars supplied by the prosecutor in his opening described it as “oral sex in the lounge”. The error in the direction was left uncorrected and, in my view, the conviction on this count is thus rendered unsafe.
15. [21]
    Furthermore, her complaints were made some months after the cessation of the alleged misconduct and in circumstances in which the complainant had ample opportunity to complain had she wished to do so.
16. [22]
    There was no complaint before us concerning the admissibility of the records of interview. Those records, as I have observed, were admissible under s.93A of the Evidence Act 1977. Section 102 of that Act provides, inter alia -

“In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement...”.

Whilst the jury was entitled to reject parts of the statements not borne out in or supported by the complainant’s oral evidence, it was equally entitled to accept the evidence in the statements as being more reliable than that given on trial. There is nothing perverse about such a result. It is possible that a child, such as the complainant, will find it rather more difficult to give an account of relevant events in a courtroom environment than under the rather more relaxed conditions represented by an interview with a competent police officer skilled in handling such interviews. The complainant did say in the course of her evidence that “she didn’t want to talk about it” and that she was upset. There was also evidence that her recall was better at the time of the record of interview.

12. [23]
    The jury was called upon to assess the evidence as a whole. There is evidence that they approached their task with care. For example, they rejected the unlawful carnal knowledge offence in count 2 and found the appellant guilty of the alternative offence of indecent dealing with circumstances of aggravation. The complainant’s evidence of penile penetration on trial, and in the record of interview, conflicted with evidence on the committal hearing in relation to that incident. The committal hearing also revealed some factual difficulties in relation to count 4 but, in that regard, the offence could be constituted by the account which the appellant gave on the committal hearing which was that her mouth did not make contact with the appellant’s penis.   
13. [24]
    The approach which a court should take in circumstances such as those under consideration has been the subject of the discussion in a considerable number of recent cases including R v Webster CA No. 2 of 1996; R v S CA No. 499 of 1996 and R v T CA No 204 of 1996. Those authorities make it plain that, as a general rule, it is for the jury, properly directed, to determine the reliability of the complainant’s evidence and in so doing, to assess the reliability of that evidence having regard to any discrepancies which may exist between statements admitted under s.93A and oral evidence given on trial. There is no complaint about the fairness or appropriateness of the summing up.
14. [25]
    I would set aside the conviction on count 5, but otherwise dismiss the appeal.