SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant was convicted in the District Court at Innisfail on 14 June 2001 of one count of taking a child for immoral purposes and two counts of indecent treatment of a child under 12.  The offences occurred on or about 4 September 2000.  The appellant appeals against his conviction, claiming that it is based solely on the evidence of the five year old complainant child given by way of a video taped interview under s 93A Evidence Act 1977 (Qld)^[1] and that this evidence leaves open a real doubt as to the appellant's guilt.

The evidence

2. The appellant was a close platonic friend of the mother of the complainant child's friend, S. S's mother was a sole parent. S was three and a half and the complainant five at the time of the offences. The appellant was also an acquaintance of the complainant's parents and would sometimes bring S to play with the complainant. The appellant and S invited the complainant to sleep over at S's home and the complainant's mother agreed, provided it was convenient to S's mother. The complainant's father believed the complainant would spend the sleepover at S's home, not at the appellant's home. The appellant picked up the complainant from her home and then arranged with S's mother for the girls to spend the night of 4 September at his house. After the sleepover at his home, the appellant drove the complainant to S's home where she spent that day and night. He returned the next morning and drove her home. The complainant made no complaint, either to S's mother or to her parents, and nothing untoward was noticed about her appearance or conduct after the sleepover.

3. S's mother gave evidence that prior to 1 September (the day when her mother arrived on holidays), the appellant told her that "he had a funny idea" that the complainant's father was interfering with the complainant and he felt he should tell the complainant's mother. The appellant suggested the sleepover and she rang the complainant's father to arrange the sleepover at her place. After the appellant brought the complainant to her home he said he would take the girls to spend the night at his place. The appellant did not raise any concerns about the complainant's welfare after she spent the night at his home.

4. A few days before the complainant first made the allegations against the appellant,^[2] the complainant's grandmother gave evidence that she spoke to the appellant on the telephone.  He said that he had this "gut feeling that [the complainant's father] was molesting" the complainant and that she should take the child to Townsville to have her checked out.  She said that a Townsville doctor had checked the child sometime earlier but the appellant was "pretty adamant" that she should have a doctor examine the complainant's "back passage".  She told the appellant to phone Family Services because she was upset at his allegations, but he said he did not want to get involved.  During the conversation he repeated that the complainant was "a lovely little girl" and said how much he loved her.  She did not discuss this conversation with the complainant or with the child's parents prior to her granddaughter's complaint about the appellant.

5. The complainant's mother gave evidence that on 10 September the appellant rang her and asked if he could bring S over to play. The appellant told her that he had rung the complainant's grandmother and suggested she get the complainant's "back passage" checked as he thought she had been "played with", accusing the complainant's father of molesting her. On 14 September the complainant and her parents were house-sitting the home of an acquaintance, Stewart. At about 10.30pm the complainant awoke from a bad dream. The complainant's father went to tend to her. He brought the complainant out and she sat on her mother's lap. The child was "shaking like anything" and she said, "Mummy and Daddy, Les hurt me. … He – his thing was hard and he tried to put it up my bum."

6. The complainant's father gave evidence that when he went to comfort the complainant on 14 September he said

"Did I upset you before you went to bed?"  She said, "No."

He said, "Has anybody upset you?"  She said, "Yes."

He said, "Did Mummy upset you?"  She said, "No."

He said, "Did [the younger brother] upset you?"  She said, "No."

He said, "Who's (sic) upset you?  You can tell Daddy."  She said, "Les."

He said, "What do you mean, darling?"  She said, "Les stuck his nudie up my bum."

He said, "What do you mean, darling?"  She repeated her answer.

He then asked her, "Did he touch you anywhere else?"  She said, "Yes, at the front, too, stuck his nudie at the front."

He got her a drink and returned saying, "If you're lying, people get in trouble for your lies."  She said, "No, Daddy, I'm not lying."

She repeated her complaint, then he continued: 

"Look if you're lying, people get in trouble for your lies."  She said, "No."

She said, "Les covered my eyes with his hands."  She told him to stop, she screamed and kicked him and said, "Les said to me if I tell anybody, he'll put my Mummy and Daddy away."

7. The father was cross examined as to minor discrepancies between the statement he gave to police on 14 September and his evidence in court; it is not alleged these inconsistencies are significant. Prior to the complaint on 14 September, he was unaware that the appellant had suggested that he (the father), or anyone else, had interfered with his daughter; he learned of these allegations only after the child made the complaint. He denied encouraging the complainant to fabricate allegations against the appellant and denied any improper contact with the complainant. He had been suspected of sexual abuse of the complainant on a prior occasion but was cleared; he could not recall whether he discussed this with either the appellant or with the investigating police in this matter.

8. The complainant's father, mother and younger brother were present during the complainant's video taped interview with police tendered under s 93A Evidence Act 1977 (Qld), which was effectively her evidence in the trial.  This interview was conducted from 10.30am to 10.50am on 15 September.  She was questioned about the evening of 4 September which she and S spent at the appellant's home.  She said that S fell asleep first and later she fell asleep. 

9. The interview contained the following exchanges:

"OK.  So you fell asleep at about 8 o'clock?  OK.  Did you wake up at all during the night?  No.  Right ----?  --  Only I woke up at Stewart's place because I had a bad dream.

OK?  -- Because (Indistinct) Les put his nudie up my bum.

Mmm? -- He did.

OK.  That was – but on that night, when you stayed at Les, do you remember waking up? -- Yes.

Do you?  Do you want to talk to me about it? -- Yes.

OK.  Well you tell me what happened? -- He – he just – he's not allowed to touch me anywhere else.

Mmm.  Who told you that? – Daddy and Mummy.

Daddy told you that? -- Yes.

What did Daddy say? -- He said he's not allowed to – touch me anywhere else.

Anywhere else? -- And he did.

Mmm.  What did he do?  You tell me. -- And he put his nudie up the front and the back.

Mmm.  When did he do that? -- Um, last night when me and S were sleeping.

On that night when you stayed over? -- Yeah.

And where was S when he did this? -- On the mattress with me.

OK.  So you were both on the mattress.  Did S wake up? -- She stayed awake.

Mmm.  What – did she say anything? Didn't she? -- She only said, 'I want a drink' all night.

Mmm.  Where did Les sleep that night? -- In his own bedroom.

Mmm.  You know how you told me you went to sleep at 8 o'clock? --  Yes.

When did Les do these things to you, before or after you went to sleep? -- Mmm.

You tell me.  When did he do it, before when the movie was on or ------? – Yes.  Before, when the movie was on.

…

Mmm.  Did he take his clothes off?  Did he take his pants off? -- Mmm.

Did you take your clothes off? -- No.

…

OK.  Did Les do this to S as well?  --  No.

Just you?  Do you know why?  --  Uh – huh.

…

Mmm.  Did he say anything to you when he was doing this stuff?  --  No.

No.  Do you know how long he did it for?  --  Yeah.

OK.  How long do you think?  --  He done it when I was going to – start going to sleep.

Mmm?  --  And I had a dream about it when I was sleeping at Stewart's place.

OK.  But ------ ?  --  And I woke up and told Daddy and Mummy.

OK.  But you remember him doing it?  --  Yes.

And you said he stuck his – his doodle inside you.  Where did he stick it?  D you remember?  You can tell me.  --  At the front and the back.

At the front and the back.  Anywhere else?  Can you remember seeing his doodle?  What does it look like?  --  A long one.

A long one?  --  Straight one like Daddy.

Like Daddy's.  OK.  And, um, you don't know how long he – he did it for?  --  No.

Was the movie still on?  It was, was it?  --  Yep.

OK?  -- Then it turned off itself. --- OK.  Now did you cry at all when Les did this to you?  --  Yeah. 

Did you say anything to him?  --  No.

Did you tell him to stop?  What did you say?  You tell me.  --  I said to him, 'Stop it.'

Mmm?  --  And, 'Don't do that ever again.'

And why did you say that?  --  Because he was hurting me.

It was hurting was it?  --  Yeah.

And did you cry a lot?  --  Yes.

OK.  Now, do you know – if Les used any stuff, like did he use any cream or ointment or anything like that?  --  No.

No.  Not at all?  And – this is – I know this is hard for you and for Mum, OK, but I have to ask you these questions.  OK.  How when Les stuck his doodle inside you and it hurt, do you know if it bled at all?  Was there any blood on the sheet in the morning?  --  No.

Not at all, eh.  OK.  Now, has anyone else ever done that to you before like that?  --  No.  Daddy and Mummy haven't.

Daddy and Mummy hasn't?  OK.  Good girl.  Now -----?  --  Only Les has, but nobody else has.

No.  Did Les wipe you at all, or do anything like that?  --  No.  No.

…

Now, you said you have a bad dream?  --  Yeah.

When was that?  --  Um, last night before when we were having a sleep.

Mmm.  And who's place was that at?  --  At Stewart's place.

…

Now, you went over there, and you stayed at Stewart's and you fell asleep in bed, did you? --  Yes, and I – and I woke up and told Daddy.

And what did you tell Daddy?  --  About what he had done to me.

Mmm.  Can you remember what you said to Daddy?  --  Yeah.

Can you tell me now?  --  He's – and I said, 'He put his doodle up me.'

Mmm.  --  And he – and Mummy started crying.

Mmm.  OK.  And then ------ Did you tell Mummy and Daddy who put their doodle up you?  What did you say?  --  I said, um, 'Les done it.'

Les done it?  --  Yeah.

Did anyone tell you to say that?  No-one said to you that you have to say that?  --  Only Les said to me say that.  Because I dreamt about it.

OK, and when – you had a dream about it – that was last night was it?  --  Yeah.

OK  And what – what -----?  --  And I slept with Daddy and Mummy.

Last night as well? --  Yeah.

…

So you saw Les naked?  OK?  --  And then he said I have to eat five ice blocks, but I didn't.

Five ice blocks?  --  But I didn't.

Was that after he stuck his doodle in you?  --  Yeah."

10. The complainant was made available for cross-examination but this was rendered ineffective because she had no memory of sleeping over at the appellant's home and nor could she remember waking up after a bad dream at Stewart's place.

11. The police officer who conducted the interview with the complainant did not recall the complainant's father insisting on being present during the interview. He thought the child would be more comfortable in the presence of her entire family and so conducted the interview in this way.^[3] 

12. General practitioner, Dr Van Buuren examined the complainant on 15 September 2000. The complainant's hymenal opening was thin and had two defects at 7 and 10 o'clock; her anal examination was normal.

13. Paediatrician, Dr Mantz examined the complainant on 23 October 2000. There were no acute marks, bruising, erythema or scratches but the hymen was just a residual thin hymenal ring which was quite abnormal for a five year old girl. The anus appeared normal. The condition of the hymen was consistent with damage, namely some sort of penetration at an earlier time, at least a few days before the examination. Had an adult male had sexual intercourse with the child, examination within a few days would have revealed hymenal changes and more acute changes with erythema, bruising or marks around the labia and possibly tearing of the posterior fourchette, irritation and superficial damage. Similarly, penile penetration of the anus would show some, although less, damage and would perhaps heal faster.

14. Dr Shellshear examined the complainant when she was four years old in November 1998 following a suggestion of sexual interference. The examination revealed no evidence of any physical injury but could not exclude minor levels of interference.

15. On 16 September 2000, the appellant was interviewed on video tape by police from 2.50pm to 5.54pm. The transcript of that interview was not included in the appeal record book, but Mr Heaton, who appeared for the respondent, handed up a transcript of the interview during the appeal hearing. The members of the Court did not have the opportunity to read the transcript during the appeal hearing. When I later did so, I noticed that portions of the transcript recorded conversations that may have been inadmissible and the style of questioning was sometimes an interrogation and a cross-examination rather than an interview. The Court then enquired of the parties whether the transcript provided to the Court was the transcript used by the jury during the trial and invited further submissions. An affidavit filed on behalf of the respondent establishes that an edited video tape of that interview was tendered at trial and the jury used an edited transcript of that video tape as an aid during the trial, portions of the interview having been excluded as a result of a pre-trial hearing, the transcript of which was not included in the record book. The respondent has been unable to locate a copy of the edited transcript and, regrettably, it does not seem to have been marked for identification and placed on the court file. I had my associate obtain the tendered video tape which he has checked against the transcript provided by Mr Heaton and edited it to reflect the tendered video tape. Copies of that edited transcript have been provided to the parties who have indicated they have no submissions arising from it. I have also obtained and read the transcript of the pre-trial hearing.

16. At the commencement of the interview, the appellant was given the opportunity to contact a solicitor or friend and was advised of his right to silence and warned that his answers could be used in court against him; the warning was repeated on several occasions throughout the long interview. The appellant gave a detailed account of how he met the complainant, her parents and younger brother about a month earlier; the complainant's mother was in a wheelchair, unable to do a lot for herself and was not easy to understand. The appellant provided considerable detail as to the events of the evening he spent with the complainant and S at his home. He said he had the permission of the complainant's father for her to sleep at his home with S. At about 1.30 or 2.00am he heard the complainant coughing severely so he took her a drink of water. She told him that when she coughs her father rubs her. The following exchange was recorded.

"… I said, "Oh yeah, what, on the back?" and she said, "No." and then she said, "He puts his hand down here … and then he goes like that between my legs."

Can you just repeat what you just said, Les, please?  --  That her Daddy rubs her down between the legs and runs his finger backwards and forwards.

And you showed an action?  --  No, I didn't show a reaction.

No, no.  You just showed me an action then?  --  Well, that's when she said, 'He rubs me backwards and forwards.'

OK.  So she's shown you this has she?  --  Yeah.

Did she show you where he allegedly rubs her?  --  She told me where she rubbed in it – where – where he rubs her.

What did she say?  --  She said, 'that Daddy rubs me down between the legs.'

OK.  Did she – at that time was she unclothed?  --  Yes.  She was clothed.

OK.  And did she say anything else to you?  --  Not a great deal like that, no.  Nothing about that.  So I just tried to give her a drink of water.  I said to her, 'Look, just go to sleep.  It'll be alright.'

OK.  And what did you say to her when she told you this?  --  Well, at first I didn't believe her, and then just asked, 'Are you sure?'  And she said, 'Yes, that – that's how Daddy helps me sleep.'  So I just tried to give her a drink of water.  She had a sip and then I went back into my room."

17. He said that nothing else eventful happened that evening and he dropped the complainant off the next day after buying her some small toys. He later told the complainant's mother about the conversation with the child and suggested that the child have a check-up. The complainant's father had previously told him that "he had been up on child abuse" but the child had been checked out and "[e]verything was found normal". He repeated his concern about these matters to the girl's grandmother and to S's mother.

18. The appellant strenuously denied the complainant's allegations and said that he was "all but impotent", that "nine times out of ten" he could not get an erection and he had not had a full erection since 1988.^[4]  He claimed that the child's father must have learned of the appellant's concerns from the mother and subsequently coached the child to make false allegations against him.

19. The appellant did not give or call evidence.

Was the jury verdict reasonably open?

20. The appellant emphasises the unlikeliness of the complainant's version: it occurred whilst S was awake with her on the mattress; the complaint was not made until some days later after awakening from a dream; the details of her complaint suggest she may have been recalling a dream rather than a real incident; after the incident she said she had to eat five ice blocks. In addition, the appellant emphasises Dr Mantz's evidence that immediately after the incident some physical injury and discomfort would have been expected yet nothing untoward was noticed; there was no blood on the sheet the next morning and it was not painful for her to go to the toilet.

21. The learned trial judge noted in his summing-up that the counts were particularised as follows: at the time the appellant picked the complainant up to take her to his home for a sleep over he intended to unlawfully and indecently deal with her (count 1); the appellant touched the complainant in some way, perhaps by penetrating or attempting to penetrate her in the area of her anus (count 2); the appellant touched the complainant in the area of her vagina (count 3).

22. The appellant rightly contends that the prosecution case turned primarily on the evidence of the complainant child which was given by way of a video taped interview the day after she made the complaint, which was about 10 days after the offending conduct. At the trial she could remember neither the incident nor the complaint.

23. The learned primary judge explained to the jury the rationale behind s 93 Evidence Act 1977 (Qld) which allows for the exceptional case of video taped interviews of complainant children to be tendered as evidence in court, namely to help overcome the difficulty for child witnesses that the nine or ten months from the time of the complaint until the time of trial is a long time in the life and memory of a child.  The judge emphasised to the jury that before they could find the appellant guilty of counts 2 and 3, they must be satisfied beyond reasonable doubt that the complainant was both truthful and accurate in the events she described in the taped interview.  The judge reminded the jury that although there was evidence of an old injury to her hymen, there was no suggestion she was suffering pain or discomfort when she returned home the day after spending the night with the appellant.  The judge emphasised that the jury must be satisfied beyond reasonable doubt that the complainant's description in her interview was a real event, not just a dream. 

24. The judge reminded the jury that the prosecution case was that the appellant made a deliberate false report to the complainant's mother and grandmother to implicate the complainant's father and explicate himself. His Honour pointed out to the jury that if they found that the appellant had lied about the complainant's father giving permission for the child to stay at his home, they could treat this as a lie supporting the complainant's evidence and gave the usual careful direction in accordance with Edwards v The Queen.^[5]  There is no complaint as to these or any other directions in the summing-up.

25. As to count 1, the judge told the jury that before convicting they must be satisfied beyond reasonable doubt that, when the appellant picked up the complainant from her home to spend the weekend with S, he intended to unlawfully and indecently deal with her.

26. The learned judge's careful directions to the jury well apprised them of the essential issues and fairly put the defence case. The jury were entitled to accept that the complainant's evidence, recorded shortly after the incident, was not a dream but was a truthful and accurate account of the appellant's conduct, constituting counts 2 and 3. Whilst it is difficult to know from the complainant's account whether S was asleep or awake at the time of the improper conduct and whether the conduct involved actual penetration of the anus and/or vagina, the child's evidence is capable of establishing two indecent dealings. The matters raised by the appellant were rationally consistent with the expected history of such events from a five year old child.

27. The medical evidence established that at some time between November 1998 and September 2000 the complainant's hymen was damaged, consistent with a type of penetration. There was nothing in the medical evidence that was inconsistent with the complainant's evidence. The jury saw and heard the complainant's father deny that he interfered with the child or encouraged her to make false allegations against the appellant. They clearly rejected the appellant's version of events given in the record of interview. There was no sworn evidence contradicting the evidence from the child.

28. The jury were also entitled to accept that the appellant lied to the complainant's father in saying that the child would be spending the night at S's home and to conclude from that lie that the appellant intended to take the child for immoral purposes when he collected her from her home, the conduct constituting count 1. The evidence of the child's parents and S's mother, that the arrangement was for the child to sleep at S's home and the evidence of S's mother that the appellant suggested the sleepover at his home only after taking the child to S's home is consistent with this conclusion.

29. The appellant's allegations of sexual impropriety by the father, made to S's mother before the complainant child had allegedly spoken to the appellant about her father touching her in her genital region, also provide slight support for the child's evidence and the jury's verdict on all these counts.

30. The verdict was reasonably open on the evidence and there has been no miscarriage of justice. I would dismiss the appeal.

ORDER:

Appeal against conviction dismissed.

31. McPHERSON JA: I agree with the reasons of the President for dismissing this appeal against conviction.

32. MACKENZIE J:  I agree that the appeal should be dismissed for the reasons given by the President.