R v Gleadhill[2002] QCA 204

SUPREME COURT OF QUEENSLAND

[1] McMURDO P:  In the District Court on 30 October 2001, the appellant was convicted of two counts of rape (counts 1 and 4) and acquitted on two counts of indecent treatment of a child under 16 (counts 2 and 3).  He contends that the guilty verdicts are not supported by the evidence and are unreasonable because first, those verdicts are inconsistent with the verdicts of not guilty on counts 2 and 3; second, the quality of the complainant's evidence on count 1 was such that a jury should not have convicted; third, the quality of the complainant's evidence on counts 1 and 3 was such that the jury should have rejected the whole of the evidence of the complainant; fourth, there was a delay of almost five years in the making of a complaint; fifth, the complainant alleged uncharged acts of sexual interference including rape for the first time at the trial; and sixth, there was no corroboration of the complainant's evidence.

[2] The consideration of these grounds of appeal requires a review of the evidence.

[3] The prosecution case turned on the unsupported evidence of the complainant.  The appellant and the complainant's mother had been in a long-term de facto relationship and the complainant regarded the appellant as her step-father.  The family lived in a provincial town west of the Great Dividing Range. The complainant was 18 at the time of trial and worked as an assistant bank teller at a building society. 

[4] The appellant first acted improperly towards her on a May weekend when her mother took her older sister and younger brother to Bundaberg to have her brother's eyes medically examined.  She was 12 years old and in Grade 8.  On the Sunday morning she was cleaning her room when the appellant asked her to come into the main bedroom.  He told her she was old enough to learn about sexual intercourse.  He reached into the drawer of the bedside table and pulled out a packet of condoms, opened one and showed it to her.  He pulled her closer to the bed to sit beside him, pulled his pants down to his knees and said "This is a male's penis."  He was rubbing his penis which was erect and uncircumcised.  He asked her to pull down her pants to show "the female bits".  She was giggling and uncertain.  He pushed her onto the bed with his open hand and inserted one finger into her vagina, moving it up and down, saying "This is what men like to do."  This hurt a lot.  He then got on top of her, spread her legs with the inside of his leg and inserted his penis into her vagina, moving up and down.  At first she just lay there not knowing what he was doing; when she realised she tried to get away.  The appellant's hands were on her shoulders.  She cried and said, "Stop."  He told her to relax and that he was just going to teach her.   He kept going up and down.  He started to kiss her neck and tried to kiss her, lightly touching her breasts.  She looked down and could see some blood on the sheets.  He said "This is the stuff that makes babies that comes out of the male penis."  She left, had a shower and returned to her room.  The appellant said, "Don't tell your mother about this."  She did not consent to the appellant’s acts and she did not tell anyone about them. 

[5] The prosecution relied on this evidence to establish count 1 which was charged as occurring on an unknown dated between 30 April 1996 and 1 June 1996.

[6] About a week later she was showering whilst her mother, brother and sister were in the lounge room.  The appellant opened the door and asked if he could have a shower with her.  She refused and he left.

[7] Three or four weeks after the first episode, the family was having a drink whilst sitting outside at night on chairs after the evening meal.  Her mother went inside and as the complainant walked past the appellant he grabbed her and put her on his lap.  He put his hand up her dress and was feeling her on the outside of the underpants on her vagina.  He pushed her off his lap when her mother returned.  She did not tell anyone about this incident.  The prosecution relied on these facts to prove count 2.

[8] She recalled another incident not long after.  Her mother, brother and sister were out shopping and she was watching car racing on TV.  She was unsure whether it was a broadcast or a video.  The appellant pulled down his pants, pushed her head onto his penis and put his penis inside her mouth.  She pulled away and went into her room.  Her recollection was that this happened after the other incidents but whilst she was still 12 years old.  The prosecution relied on these facts as establishing count 3.

[9] Three or four days after the car racing incident she was lying in bed at night with the light off.  Her mother had gone to bed.  The appellant came into her room and lay on the bed with her under the covers.  He talked to her about school and her friends.  He put his hand underneath her nightie and inserted one of his fingers into her vagina and moved it in and out.  He then jumped on top of her and inserted his penis into her vagina and moved up and down.  She cried; he put his hand over her mouth and told her to be quiet because otherwise she would wake her mother, sister and brother.  He got off when he said he heard a noise and left the room.  She did not consent to his actions.  She again told no-one of the incident because the appellant had once told her not to tell anyone and she was scared of what would happen to her if she did.  The prosecution relied on this evidence as constituting count 4.

[10] Counts 2-4 were charged as occurring on an unknown date between 30 April 1996 and 12 July 1996.

[11] The complainant was extensively cross-examined. 

[12] She did not make a complaint to police until early 2001.  When she gave her statement to police, the police officer let her tell her story freely, in her own words.  

[13] During the events constituting count 1, the appellant did not use violence other than to slap her across the face to settle her down; this did not leave a bruise or a large red mark.  She did not mention this slap in her evidence in chief because she forgot it.  When specifically asked, she agreed that the appellant put on a condom before he inserted his penis in her vagina.  She could not remember from which drawer of the bedside table he took the condom.  When cross examined as to whether she knew what "ejaculation" meant when count 1 was committed, she said she "kind of knew a little bit about it".  When asked whether the appellant ejaculated, she said that when he pulled his penis out from her vagina there was white stuff inside the condom and the condom was wet.  She did not tell police nor give evidence at committal that the appellant put on the condom because she could not remember everything that happened when she was 12 years old and she did not recall that detail when she gave police the statement.  She told police she thought that after the appellant committed count 1, she went to a friend's place; she then thought she may have gone to another friend's place but that was not her present recollection.  She was always blocking these incidents from her mind.

[14] She could not remember what she was wearing when count 2 occurred.  She agreed the family probably would not have sat outside in winter because of the cold, but they did sit outside after dinner, weather permitting.

[15] She was unsure exactly when count 3 occurred, but she thought it was a Saturday.  This episode of forced oral sex, which was the only incident said to have occurred when the car racing was on TV, did not involve the appellant putting his penis into her vagina.  This was contrary to her evidence at committal when she said that on this occasion the appellant penetrated her vagina with his penis, not that he forced her to have oral sex.  She said she could not "remember very much of those last … occasions at that time."

[16] When she was in Grade 8 she had a girlfriend in whom she confided and although she complained to her friend about the appellant's general treatment of her she did not say that he had sexually interfered with her.  This was because the appellant told her she was not allowed to tell anyone.

[17] She was scared of the appellant.  She would sometimes fight with him before these offences occurred although their fights became worse when she was about 14.  She then had a major disagreement with him when he found a male friend in her bedroom near midnight.  He slapped her and "frog-marched" her friend to his parents' home.  The appellant is the natural father of her half-sister and half-brother and she felt left out "to a certain point".  She denied that for these reasons she made false allegations against the appellant.  She was still living in the family home when she told her mother of the appellant's conduct in early 2001. The complainant maintained that her account given in evidence in chief was true and denied making up the allegations to get away from her family.

[18] She was asked whether any incidents occurred after 12 July and replied that some things took place after her 13th birthday but she could not fully remember them.  She did not mention these incidents earlier because she was not sure when they occurred.  She told police officer Moodie that there were other occasions when the appellant interfered with her but she was unsure of the details and they did not appear in her statement.  At the committal proceedings, she did not say anything about these additional incidents because she "wasn't allowed".  She could remember a later incident involving the appellant and semen in the back shed but could only remember "little bits and pieces, vaguely, and not everything".  She remembered the appellant had intercourse with her on the bench.  She could not remember what she was wearing, nor the day nor the time.  She could not remember the circumstances or the time frame about any incidents other than those she had already recounted.  At the committal proceedings she agreed that the appellant had not done anything sexual to her on any other occasion beyond the incidents about which she gave evidence at committal.

[19] The investigating police officer, Mr Moodie, took a statement from the complainant on 15 February 2001 and an addendum statement in April 2001.  He included in the first statement everything she had told him.  The complainant said that after the incident constituting count 1 she visited a friend's place.  As a result of enquiries made, the complainant amended that statement to say that she may have gone to another friend's place.  Enquiries revealed that that too was incorrect.

[20] Medical records established that the complainant's brother attended medical appointments at a Bundaberg medical practice on 15 May, 4 July and 15 July 1996. 

[21] The appellant did not give or call evidence.

[22] The learned primary judge gave a careful summing up to the jury about which no complaint is made.  His Honour rightly emphasised that they should approach the four counts as four trials in a single proceeding and they must give separate consideration to the strengths and weaknesses of the evidence in relation to each of the counts:

"So, there's no inevitability that the prosecution will be wholly successful or wholly unsuccessful.  There might be a combination of successful outcomes from the prosecution point of view and unsuccessful ones."

[23] His Honour instructed that the case turned on the complainant's evidence which was not supported by any independent evidence so that her testimony must be scrutinised very carefully; nevertheless, if they were convinced the complainant's evidence was both honest and reliable and they found it sufficient to prove a particular count beyond reasonable doubt, then it was open to convict the appellant on that count.

[24] The judge also pointed out that the prosecution was bound by the particulars of each offence, including the place where and the time when the event happened.

[25] His Honour provided a careful and detailed summary of the defence case, including references to the differences between the complainant's statement to police, her evidence at committal and her evidence in chief and cross examination at the trial.

[26] The judge noted that the complainant did not make a fresh or recent complaint and that the delay in making the complaint created the potential for evidence to be lost and for people's recollections to become imperfect, making it more difficult for the appellant to test the complainant's allegations.  They should take this factor into account in determining whether the complainant's evidence alone was sufficient to return a conviction on any of the counts.

[27] His Honour also emphasised that the defence alleged that the complainant's evidence about the incident in the back shed, given during cross examination for the first time, was an obvious lie which would have a great impact on the complainant's credibility in respect of the offences.  His Honour observed:

"If you think she's capable of – of such a wicked act, and indeed that it was perpetrated in front of you yesterday afternoon, it seems common sense that that might have an impact on your view of her truthfulness on the other matters."

[28] The onus is on the appellant to satisfy this Court that the verdicts cannot stand together, that is, that no reasonable jury who had properly applied their minds to the facts in the case could have arrived at that conclusion: Mackenzie v The Queen.[1]  Respect for the functions of juries has the result that appellate courts will reconcile their verdicts if there is some evidence to support them because it is not the role of an appellate court to substitute its opinion of facts for one which was open to the jury.[2]  An appellate court may take the view 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.  The fact that verdicts may be difficult to reconcile does not necessarily provide grounds to overturn the verdicts.  An appellate court may conclude that the jury took a 'merciful' view of the facts upon some counts.  Jurors sometimes apply their innate sense of justice and may think that even if a charge is technically proven, justice will be sufficiently done by convicting on only some counts.[3]

[29] There is however a logical explanation for the jury's differing verdicts in this case.  The verdict of not guilty on count 2, which was the least serious of the four offences, is consistent with a reasonable doubt as to whether it occurred in the timeframe alleged, namely during the evening of the late autumn and winter months where the nights west of the Great Dividing Range are often notoriously cold.  This point was raised by defence counsel during cross examination and the judge emphasised that the prosecution must prove the time frame it particularised beyond reasonable doubt.  On the other hand, the jury may have considered this offence comparatively trivial and felt that justice was sufficiently done by convicting the appellant on the major counts.

[30] It is even more readily explicable why the jury were not satisfied beyond reasonable doubt on count 3 when the complainant gave differing accounts at various times as to whether the incident was one of oral sex or rape.

[31] Although the jury's lack of satisfaction beyond reasonable doubt as to the complainant's evidence on counts 2 and 3 was capable of tainting the reliability of her evidence on counts 1 and 4, this was not inevitable.  The jury observed her give evidence and she was thoroughly cross-examined.  Her evidence at trial on count 3 was directly inconsistent with the account she gave at committal.  Here the complainant gave evidence of a number of uncharged incidents of sexual abuse about which she was very vague; the charged and uncharged incidents occurred over five years earlier.  She plainly found the incidents distressing and unpleasant and said she tried to block them from her mind.  In those circumstances, the jury's rejection of her evidence on counts 2 and 3 did not mean they must also reject her evidence on counts 1 and 4.  It was open to them to accept that, whilst the reliability of her memory on counts 2 and 3 as particularised was insufficient to satisfy them beyond reasonable doubt of the appellant's guilt, her evidence on counts 1 and 4 was of sufficient quality to establish the appellant's guilt on these counts beyond reasonable doubt.  This is not a case where the jury's verdict of acquittal on counts 2 and 3 was necessarily a finding that the complainant was dishonest or so inherently unreliable as to inevitably taint her credibility or reliability on the other counts: cf R v Markuleski;[4] R v M[5] and  R v S.[6]  There was a logical explanation on the evidence for the differing verdicts.  The inconsistent verdicts do not render the guilty verdicts unreasonable or unsafe and unsatisfactory.

[32] It is concerning that the complainant alleged for the first time during cross-examination uncharged acts of sexual interference, including rape.  The judge, however, brought this to the jury's attention  and warned them that if they thought the complainant was lying about those allegations, this might affect their view of her credibility on other issues.  The jury were entitled nevertheless to accept the complainant's explanation that her recollection of events was poor, that she tried to repress her memory of these unpleasant incidents, could only remember "bits and pieces" and that she thought she could only include in her statement to police and give evidence of incidents which she could specify.

[33] Although the cross-examination of the complainant raised some additional concerns about the reliability of her evidence, most of these matters were in the nature of further detail provided by her in response to specific questions in cross-examination, rather than inconsistencies with earlier accounts.  These matters were exposed to the jury by defence counsel and the judge; they did not render the verdict unsafe.

[34] The lack of recent complaint and the delay of four and a half years in making the complaint were also examined fully before the jury.  It is not contended that the judge's direction on these matters were inadequate.  These contentions do not throw doubt on the reliability of the jury's verdict. 

[35] Although the complainant's evidence was uncorroborated, this too was an issue at trial and the judge warned the jury to scrutinise her evidence carefully before accepting it.  The jury were nevertheless entitled to accept her uncontradicted evidence on counts 1 and 4 which was uncontradicted by other sworn testimony.

[36] The matters raised by the appellant either alone or collectively, when examined in the context of the whole of the evidence and the judge's summing up, do not persuade me that no properly instructed reasonable jury could be satisfied beyond reasonable doubt of the appellant's guilt on counts 1 and 4.[7]

[37] I would dismiss the appeal.

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

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