SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of the President.  I agree that for those reasons, the appeal against conviction should be dismissed.

[2]  McMURDO P:  The appellant pleaded not guilty on 17 October 2005 in the Children's Court of Queensland at Maroochydore to two counts of raping the complainant on 11 December 2004.  The trial proceeded before a Children's Court judge sitting without a jury[1] on 17 October 2005.  After a two day trial the judge found the appellant not guilty on the first count but guilty on the second count.  The appellant appeals against his conviction contending that the guilty verdict is unreasonable and cannot be supported by the evidence having regard to the possibility of the complainant making an honest mistake.

The evidence

[3] Before directly dealing with the ground of appeal it is necessary to summarize the evidence.  The prosecution case was that the first count occurred when the appellant, then aged 15, procured another boy aged 13, DR, to digitally rape the 14 year old female complainant while she slept in a cannabis-induced intoxicated state on the footpath near her home.  The second count allegedly occurred when the appellant committed a penile rape upon the complainant very soon afterwards.

[4] The evidence-in-chief of the complainant was contained in a one and a half hour videotaped interview with police taken on 13 December 2004 tendered under s 93A Evidence Act 1977 (Qld).  She said that she met the appellant through her 15 year old next door neighbour and girlfriend CR, the older sister of DR.  On the night before the offences the appellant and DR came to her home with cannabis.  The complainant's girlfriend, TC, was also there.  They smoked some marijuana in a bong which the appellant made.

[5] The next night the appellant and DR again came to her home with some cannabis.  The three juveniles went to a nearby street to smoke the cannabis in another home‑made bong.  The complainant's throat became sore and the appellant gave her some water.  She said:

"I passed out.

... Well, I might have passed out, but I don't really remember anything.

... And then I wake up and [the appellant's] on top of me.  And then I told him to get off and - and he got off and he - and go, 'Okay, what were you doing?'  And he said, 'I thought you were sleeping.  You fainted.' And then - and then I fell back asleep, but I couldn't see [DR].  I didn't know where he was.  And then - and then - then I woke up again and we were up the top of the street and I was laying on the driveway and [the appellant] and [DR] were there, ...

And I don't even remember going home.

... I asked [DR] if he did have sex with me and kept saying 'No', but I saw that he did because my leg was up in the air and - and it felt like he was.  And [DR] kept saying, 'No' and then [CR] came in and she asked that - she asked me what I was doing and everything.  She was in a really grumpy mood and she started yelling at [DR] and then I ran out crying.  And I ran away and then I was out the side of her house and her parents came down the driveway 'cause the they been out to a work party.  And - and then - then I ran around the side of the house and [CR] was crying and everyone was, like, there and they were all talking.  And then [the mother of CR and DR] said, 'What's - what's that?' And [DR] said it was [the complainant], he - 'cause he could see me 'cause I was next to a window.  And - and Mum came and got me and then I told her what happened.

... - no, I didn't tell her what happened, I told [CR] what happened.

... And she told my Mum."[2]

[6] When asked for further details she said that after her throat became sore from smoking the marijuana the appellant told DR to get some water and

"... kept on asking if I would have sex with him and I said, 'No.'  He kept telling me and then he told me [he] was infertile or fertile 'cause he jumped into a barbed wire fence or something.  I think he said that he couldn't have children ...

And then I don't really remember anything exactly".

[7] When asked how she felt after drinking the water she said:

"I felt really sick.

... And I just - I just went out of it.

... I was laying there and I just - like, I couldn't open my eyes.  I felt like I was, like, paralysed or something, but like, my eyes just wouldn't open.

... And - and then I woke up and [the appellant] was all on top of me and [indistinct] together.  And I asked him what he was doing and then - and then - and he said, 'Oh, you fainted.'  He started hitting me on the face, like - kind of like that.  And then - and then I just, like, rolled over and I - you know, I woke up a couple of minutes later, I think, and I was at the top of the driveway just laying there, that was all I remember."

[8] She was unsure of the precise location of the area where the assault occurred.  She heard indirectly from DR's questioning by his mother that apparently the appellant had asked DR "to turn around, like, go down on the street a little bit".

[9] When asked again for details of the events when she opened her eyes and found the appellant on top of her, she said:

"I remember my leg was up near my head;  it was across his shoulder, and when I woke up I kind of pushed him off with my leg but I didn't really need to because he jumped off like straight away and pretended like nothing had happened.

... I couldn't see [DR].

... [The appellant] kept on telling me I fainted ... That's all.  He kept saying, 'Oh, are you okay?', and sort of patting my face."

She was not sure whether she was wearing swimmers or underwear.

[10]  She said that when she woke up the appellant "was having sex with me", an expression which she understood as meaning that his penis was in her vagina.  She explained that he was on top of her, "humping me ... I could feel it and then it started to really hurt and I said 'Ow', and 'Get off me'".  She said her "giney" was hurting.  She said " ... at first, like I woke up and I was still like - kind of like that paralysed thing, sort of thing, and then it started really hurting and I was - like snapped out of it and I just like woke up and I like went, 'Ow' ... and told him to get off."  The pain woke her up.  The appellant "was breathing really weird ... he was like going [a succession of short breaths in and out] like that ... I opened my eyes when I [indistinct] 'What are you doing?' ... I just saw his face and he was like laying on his side, like going like this tapping me and I just went like that and fell asleep ... I think I turned the other way."

[11]  When she next woke up she was at the top of DR's driveway with a pillow and blanket.  She saw the appellant and DR.  She went home and fell asleep.  After she woke up the next morning she had a swim in the pool and a shower at her friend CR's home.  She could not remember whether her mother saw what she was wearing before she changed that morning because she had a bad memory.  During the afternoon she was watching television with CR.  The transcript of the interview records:  "We were watching stuff on youth" but my interpretation of the video recording was that she said she was watching "Stuck on You", the title of a movie comedy released within the last few years.  She started to think about the events of the previous evening.  She went downstairs and asked DR if she had done anything wrong.  He assured her that nothing had happened.  She then started to remember events.  CR came into the room and was angry with DR over other incidents.  The complainant walked out crying.  She told CR what she recalled of the previous evening.  CR contacted the complainant's parents and DR "then told them most of the stuff".

[12]  She then helped CR baby-sit CR's brothers when the appellant telephoned to speak to DR.  She answered the phone and was saying "mean stuff to him".  She said she was mean to him "[b]ecause I remembered it".  She said "That was after I talk - oh, wait, no, it wasn't, it was before I talked to [DR]."

[13]  She told police that she knew when she woke up that the appellant was having sex with her because she felt his penis go inside her vagina and "it really hurt".  She described the pain as about seven or eight out of 10.  The next day her vagina was still sore when she was examined by a doctor.  She knew it was not the appellant's hands in her vagina because she felt them touching her arms.

[14]  She told police that this was the first time that she had sex.  She did not see the appellant's penis.  She did not suffer any bleeding from the vagina afterwards.  She felt his penis in her vagina for about four seconds and then:

"... told him to get off and he just jumped off straight away ...

... It was just going in and out and then when I woke up I just like told him to like get off me and -----

---- like I didn't even like think that he was.  Like, I - like, I knew it but like I didn't think anything of it.  I just turned around and pulled my skirt down and just ...

... I just felt so dizzy."

She said his penis felt "pretty hard ... Like, I like have never really done anything like that so I didn't like really know what it felt like."  The penis felt as though it was erect although she was not sure;  it felt hard.

[15]  At the conclusion of her interview one police officer asked her:

"Are you really really sure that you were awake and you can remember all that - what you told me about ---- ? -- Yeah.

--- him having sex with you.  It's not a dream or -----? -- No, 'cause I could actually feel it.

Yeah? -- And I was sore in the morning too."

[16]  The complainant also gave oral evidence and was cross-examined at the trial from a remote witness room via closed circuit television.  She had by then turned 15.  She agreed in cross-examination that after she smoked the cannabis her memory of the night of the alleged offences was very poor.  She said:

"I remember waking up with my leg in my face up here ... and [the appellant's] hands next to my arms, and I woke up.  My head was like turned to the side, and my eyes were closed.  And then I like realized what was going on, and then it started to really hurt, and I pushed him off me, and I just like said, 'Ouch', and 'Get off me' and stuff.  And then it's just, like, 'What were you doing', and he said, 'Nothing.'  Like - and then I started to pass out again, and he started trying to wake me up."

[17]  She agreed that her memory of these events when she first woke up was vague and that the recollection of the events came back to her during the day particularly when she was speaking to DR.  She said:

" ... I was asking [DR] questions at the end of the day, 'cause we were watching a movie, and I just couldn't stop thinking about it, and realized what actually happened, 'cause, like I didn't know it was bad, 'cause I was younger then and I didn't really know what had happened.

... and then like we were watching this show on Youth and this girl had gotten raped, and then I realized that had happened to me, and so I asked [DR] what really happened."

She could not remember the name of the show on youth but it was a movie.  She agreed that prior to giving her evidence she had read the transcript of her interview with police which records her saying that she was watching "stuff on youth".  As noted earlier, my interpretation of the recording is that she in fact said she was watching "Stuck on You", not, as transcribed, "Stuff on Youth".  DR has never told her, before or since her interview with police, that he put his finger in her vagina.

[18]  She agreed she did not know how long it was between when she felt something in her vagina and she opened her eyes but when she opened her eyes her legs were back, she looked at the appellant's face and said "Get off me".  She said this because it hurt and her leg hurt;  the appellant rolled over and pretended that nothing happened.  She agreed she was moving in and out of consciousness and these events could have gone on over the space of an hour or more.  She agreed that at one time the appellant tapped her on the face and asked if she was okay.  She said that she had only recently found out from her friend CR that DR was alleged to have put his finger in her vagina;  CR said that they at first thought she would be too upset and wanted to protect her but in the end CR decided it was better that the complainant heard it from CR rather than for the first time in court.

[19]  She maintained that after she smoked some cannabis, was on the ground coughing and the appellant told DR to fetch some water, the appellant kept asking her if she would have sex with him but she repeatedly said "No".  DR did not ask her if she would have sex.  She denied grabbing the appellant's penis.  She agreed she had been told a lot of things about the events of the evening afterwards by others based on what DR had told CR and his mother.  Defence counsel suggested that it was DR who put his fingers in her vagina and that the appellant did not sexually assault her.  She responded "No.  The only thing that I remember is [the appellant] on top of me, raping me".

[20]  On 13 December 2004 with the assistance of police the complainant telephoned the appellant in what has become known as a pretext telephone call.  In essence she asked him why he had assaulted her.  He denied all wrongdoing.

[21]  The appellant was interviewed by police two days later on 15 December 2004 from 12.15 pm to 1.45 pm.  I have watched the video-recorded interview.  Whilst agreeing that he had smoked marijuana with the complainant and DR on the night of the alleged offences, he was adamant that he did not sexually assault her in any way.  He did not ask her for sex.  He said that the complainant had passed out after smoking marijuana and that he tried to wake her up.  Later when he was urinating she grabbed his penis.  He maintained his innocence despite the lengthy cross‑examination by the interviewing police officers.

[22]  The doctor who examined the complainant the morning after the alleged offences found that her hymen was bruised.  This was consistent with her account of an assault and inconsistent with consensual sexual intercourse.  He agreed that it was also possible that the bruising had occurred from penetration of the vagina with a finger.

[23]  DR also gave evidence under s 93A Evidence Act 1977 by way of a video‑recorded statement to police officers.  He had just turned 13.   He said that when the complainant passed out after smoking marijuana, the appellant "fingered" her and made him "finger" her by threatening to hit him.  The appellant then told him to turn around or he would hit him.  DR turned around.  DR asked "Are you going to have sex with her?"  He said "Yes".  About 20 seconds later the complainant woke up.  She said "... what are you doing?"  DR then turned around and saw the complainant pushing the appellant off.  Her legs were spread and his knees were underneath her knees.  He was kneeling facing her.  Later that night the appellant told him that he got his penis inside the complainant's vagina:  he said "I did have sex with her".

[24]  He was cross-examined at trial.  He agreed that the day after the alleged offences the complainant asked him "Why was [the appellant] on top of me?  Did he rape me?"  She asked if the events had happened;  she was not telling him that they did happen.  He was scared and so told her that he could remember everything and that nothing had happened.  CR then came into the room and the complainant ran out crying.  CR asked why she was crying and ran after her before he could answer.  He yelled out in response that the complainant thought that the appellant had raped her.  He agreed that he put one finger inside the complainant's vagina when she was passed out;  she did not make any sound.  She only made the sound "Ow" after the appellant was on top of her.  The day after the alleged offences he was watching the comedy movie "Stuck on You" with the complainant.

[25]  CR in her videotaped statement to police, also tendered under s 93A, said that she had spent the night of the alleged offences at a friend's home.  She returned the next morning.  She was baby-sitting her brothers.  The complainant came over to help.  DR was having a private talk with the complainant in his room and she went to investigate.  The complainant was crying.  She asked her what was wrong.  The complainant would not say and ran out of the house crying.  CR asked DR what had happened.  He said that the complainant thought that the appellant had raped her.  She asked if this was true.  He responded "No, not that I can remember".  She then rang the appellant and told him that the complainant thought he might have raped her and to stay away from DR and their street or she would call the police over the cannabis use.  She looked for the complainant who had walked down the street.  She told the complainant's parents what had happened.  Later that afternoon she and another girlfriend, J, went to the complainant's house.  The complainant said that she had passed out after smoking a cone and the next thing she remembered was waking up with the appellant on top of her and her leg over her shoulder and saying "'Ow.  What are you doing?  Get off me.'  And [the appellant's] like slapping her on the face, saying, 'Oh ... you passed out.  Wake up.'"  The complainant asked CR to tell the complainant's mother and she did so.

[26]  In cross-examination she agreed that she had discussed the events with the complainant since, including just a couple of weeks before the trial.  The complainant told her that she woke up with the appellant on top of her and her leg up near her shoulder and she was in pain.  The complainant thought this occurred on the driveway but she was not sure.

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

The submissions at trial

[28] At the conclusion of the prosecution evidence, the prosecutor stated that he did not intend to make submissions to the judge, perhaps because s 619 Criminal Code 1899 (Qld) provides only for the Crown's entitlement to address the jury in a criminal trial.  See, however, s 66 Juvenile Justice Act 1992 (Qld) which applies the provisions of the Criminal Code with all necessary modifications to the conduct of proceedings in a Children's Court.  I can see no reason why a prosecutor in a criminal trial or indictment before a judge alone in the Children's Court would not ordinarily provide assistance to the court in a succinct and balanced closing address.  The order of counsels' addresses would ordinarily be that set out in s 619 Criminal Code, consistent with the practice adopted in criminal jury trials.

[29]  Defence counsel made the following submissions.  He suggested the judge could not accept the complainant as a credible and reliable witness.  She was obviously reconstructing rather than remembering events.  This was consistent with her reference to a mistake in the transcript of her videorecorded evidence leading her to claim that she had been watching a "show on Youth" which she expanded to being a show about rape when in fact she originally told police she was watching "Stuck on You", a movie comedy.  He emphasized that the complainant's evidence was that she was passing in and out of consciousness that evening;  she was intoxicated by cannabis;  she had her eyes shut at the point when she felt pain.  It was possible that when she opened her eyes she saw the appellant and wrongly assumed he was responsible for assaulting her.  It was possible that any assault had been committed by DR digitally penetrating her.  This was consistent with the medical evidence.  The possibility was that the complainant, although perhaps an honest witness, had only vague recollections the next day of what had happened and, influenced by DR, now firmly and honestly but falsely believed that she had a non-consensual sexual encounter with the appellant amounting to penile rape.

The judge's findings

[30]  The judge considered that DR was an accomplice of the appellant because he was the principal offender on count one.  Her Honour was unimpressed by DR's evidence and found him unreliable.  Because she was not prepared to accept DR's evidence beyond reasonable doubt, there was no evidence on count 1 implicating the appellant.  She found him not guilty.

[31]  In respect of the second count, the judge noted that before she could convict the appellant she would have to accept the complainant's evidence beyond reasonable doubt.  She was not prepared to rely on DR's evidence in respect of count 2.  She gave careful consideration to the appellant's record of interview and rightly observed that there was, however, no onus or responsibility on him.  The judge then observed that although there were some difficulties about the complainant's evidence because she was affected by an intoxicating substance at the time and was lapsing in and out of consciousness, she was consistent about the fact that the appellant penetrated her vagina with his penis, not his fingers, without her consent.  The judge was also satisfied that the appellant could not have mistakenly thought the complainant was consenting.  On this basis the judge convicted the appellant on count 2.

Conclusion

[32]  I have listened to the pertinent portions of the videotaped evidence-in-chief of the complainant and to the videotaped record of interview between police officers and the appellant.

[33]  The judge was well entitled, for the reasons she gave, to reject DR's evidence in its entirety.  Her Honour's succinct reasons make clear that she did consider the appellant's record of interview with police, which inferentially she rejected.  That conclusion was also well open:  he did not impress me as necessarily reliable or truthful.

[34]  Despite the complainant's intoxication and poor memory of the events of the evening during which she lapsed in and out of consciousness, the judge was prepared to accept the essential aspects of the complainant's evidence as to the appellant's penile penetration of her vagina without consent.  This conclusion was also open.  The complainant was at all times in her evidence certain that the appellant had penetrated her vagina with his penis. This recollection was supported by her evidence that his hands were touching her arms;  she could feel him "humping her";  his method of breathing at the time and the level of pain she felt.  Her complaint was consistent with what she told CR the next day and with the medical evidence.  Her conduct after the event was also consistent with her version of the night's events, bearing in mind her age and her intoxicated state.  While her recollection became firmer as the next day progressed, this was not necessarily reconstruction;  it was consistent with an improving memory as the after-effects of intoxication wore off.  The evidence does not establish that anyone gave her details of what the appellant did to her prior to her detailed account to police.  Some aspects of that account appeared particularly convincing.  These included her claims that, before she fell asleep, the appellant importuned her for sex;  her description of what she felt in her vagina;  her description of her position relative to that of the appellant at that time, in particular the position of his hands and her legs;  and his "humping" action and heavy, quick breathing.  The version she gave was not so inherently implausible or unreliable that the judge was required to be left in doubt as to its accuracy.

[35]  After reviewing the whole of the evidence, I am satisfied it was open to the trial judge to be satisfied on the whole of the evidence of the appellant's guilt on count 2.  I would dismiss the appeal against conviction.

[36]  HELMAN J:  I agree with the order proposed by the President and with her reasons.