R v D[2000] QCA 417

SUPREME COURT OF QUEENSLAND

1. THE COURT: The appellant was brought to trial in the District Court at Gladstone on an indictment charging him with eight counts of sexual offences committed against a nine year old girl, who was the daughter of his neighbours.  After a trial lasting five days, the jury returned verdicts of not guilty on all counts except count 5, on which the appellant was found guilty. This is an appeal against the conviction on that count. Several different grounds of appeal were relied on; but it is necessary to refer only to one that submits that the verdict on count 5 is unsafe and unsatisfactory, which is in ground 1 of the notice of appeal.

2. To explain the appellant's criticism of the verdict on count 5, it is necessary to consider the other charges of which the appellant was acquitted, and the evidence adduced in support of them at the trial. Unusually for cases of this kind, most of the offences were alleged to have been committed within a comparatively brief period of time shortly before the first video-recorded interview of the complainant took place in connection with the incident. The video tapes of that interview on 21 February 1999 were admitted at the trial and became the principal evidence in support of the prosecution case. In addition, the complainant and her mother gave evidence and were cross-examined; and the appellant himself and others, including his wife and his parents, testified at the trial.

3. Count 1, which charged the appellant with maintaining a sexual relationship with the complainant between 1 January 1998 and 20 February 1999, relied on proof of the other, or some of the other, offences. Because only the charge in count 5 was proved to the satisfaction of the jury, the three or more occasions required by s 229B(2) of the Code were not established, and the prosecution on count 1 ended in acquittal.

4. Count 2 charged an act of indecent dealing. The appellant was alleged to have pulled down the complainant's pants and tried to put his penis in her vagina; but she prevented him by pulling her pants up again. The incident was said to have taken place in the bedroom of the appellant's house during the school holidays when she was in grade 4. That would have placed it at some time during 1998, and the complainant identified the incident by saying she remembered that the appellant was wearing a pair of red shorts on that occasion. However, the appellant and his wife both testified that he did not possess a pair of red shorts at that or any other time. Their evidence to that effect may have left the jury with a reasonable doubt, and they acquitted.

5. The second and third charges (counts 3 and 4) related to the same occasion, as to which the complainant said in effect that the appellant had showed her a pornographic video, and had then masturbated to ejaculation in front of her before trying to put his penis down her pants. The complainant's evidence fixed these incidents as having occurred on a Saturday two weeks before she was interviewed on 21 February 1999, which placed the occasion on 6 February 1999. The appellant, his wife, and a Mr Laurance were able to say that, on that particular weekend, the appellant and his children had travelled to Bundaberg to attend a Little Athletics competition near Bargara where he and they remained overnight before returning on Sunday. On that footing, he had had no opportunity to commit the offence on the occasion alleged. He was also able to account for his movements on the weekends both before and after 6 February 1999. Again the jury were left with a reasonable doubt, and acquitted the appellant of these two charges.

6. Count 6 was a charge of exposing the complainant to an indecent act consisting of the appellant's masturbating to ejaculation in front of her in the bathroom of his home. It was said to have taken place "probably" about a week before the interview on 21 February 1999, which would have placed it on about Saturday 13 February. As such, it was the occasion of a family barbecue held to celebrate the fourth birthday of the appellant's son. The barbecue, which started at 10 am, was attended by the appellant, his wife, his sister and his parents, all of whom gave evidence of his presence at that function. In the evening the family went out to dinner together. The appellant also gave detailed evidence of his movements on the Sunday immediately following, which was 14 February 1999. Once again, he was found not guilty.

7. The remaining two charges were the subject of count 7, which was exposing a child to an indecent act, and count 8, which was exposing her to an indecent video. The offence charged in account 7 was said to have occurred on the day before the first police interview, which placed it on 20 February 1999. Count 8 was alleged to have taken place on some unidentified date between 1 January 1999 and 20 February 1999. With respect to 20 February 1999, the appellant's wife gave evidence that she was present at home on that day in circumstances that made it improbable that the offence in count 7 was committed on that day or at all. As to count 8, there was evidence from the appellant and his wife suggesting that he would not have had the opportunity to commit the offence as alleged by the complainant. He was found not guilty of both offences.

8. This left only count 5, on which the verdict was guilty. It charged an offence of indecent dealing, which was said to have taken place when the appellant and the complainant were riding on a quad motor cycle. It was the practice of both the appellant and his wife to give the children rides on the bike, the child sitting in front of the adult while he or she drove the bike. The effect of the complainant's statement was that, when she was sitting in front of the appellant in that position, he had taken out his penis and pushed it down inside the back of her pants. She claimed this had happened on several occasions, of which the last had taken place about a week before she was first interviewed by the police on 21 February 1999. It was apparently this last incident that was treated as the subject of count 5.

9. The appellant gave evidence at the trial denying that he had done any such thing. There was evidence from both him and his wife that the area in which the quad bike was driven carried both pedestrian and bike traffic and was readily visible to people in vehicles travelling along the nearby highway. According to the appellant's wife, the bike rider and passenger were on these occasions commonly followed by other children waiting for their turn of a ride. She had never seen any improper behaviour by the appellant while he was riding the bike with the complainant in the manner described.

10. In these circumstances, it is not easy to understand why, having acquitted the appellant of all other counts, the jury should have found him guilty of count 5. The suggestion was made in the course of the appeal that the verdict might be explained as being the result of some of the appellant's own evidence at the trial in which he acknowledged that the occasion or opportunity had existed for him to have committed the offence in the way alleged. The same is, however, true or very nearly so of the incident alleged to constitute the offence charged in count 6, which was said to have taken place on what was about the same date. A possible explanation is that, in arriving at their verdicts, the jury had quite legitimately commenced their consideration of the prosecution case with a favourable impression of the complainant's truthfulness. They had then considered her evidence in the light of the testimony of the witnesses for the defence other than the appellant himself, and, in doing so, found they were left with a reasonable doubt in each instance in which the appellant's denial was confirmed by evidence from some other witness. While of course not conceding that this is what in fact happened, Mr Meredith for the Crown on the appeal candidly acknowledged that it was a possibility.

11. The problem is that, if the jury did approach the matter in that way, a real doubt exists about the integrity of the only verdict of guilty that was delivered at the trial. It is true that trial juries are regularly directed that they may properly accept and act on part only of the testimony of witnesses while rejecting other parts of it. In the process of doing that, however, a point may be reached where so little reliable evidence survives as to make it unsafe to act on what remains. In Jones v The Queen (1997) 191 CLR 439, 453, Gaudron, McHugh and Gummow JJ had this to say about the complainant's evidence in that case:

"The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of events which were said to give rise to that count.

Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which give any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."

12. Those remarks of their Honours apply with equal or greater force to the evidence, the circumstances and the result in the present case. Having entertained (as they evidently did) a reasonable doubt about the evidence, standing alone, of the complainant in respect of each of the six primary counts 2 to 4 and 6 to 8, it is difficult to see what can have remained of her credibility when the jury came to assess the weight of her statements in relation to count 5. In this case, it is impossible to avoid the conclusion that in some, not necessarily definable, way the trial process here has miscarried. The firm impression with which we are left is that it would not be safe or consistent with justice to allow the verdict against the appellant on count 5 to stand.

13. The appeal is accordingly allowed, and the verdict and conviction are set aside. Verdict and judgment of acquittal are entered in respect of count 5 in the indictment.