SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was charged with five counts of indecent treatment of a child under the age of 16 years with the circumstance of aggravation that the child was under 12 years (counts 1 to 4 and count 6) and one count of rape (count 5).  His trial commenced on 30 September 2005.  On 6 October 2005 he was convicted on all counts.  He was sentenced to seven years imprisonment on the rape count and to 18 months imprisonment on the remaining counts.  He appeals against his convictions.  The grounds of appeal finally pursued were that the trial judge erred in not giving the jury the direction required by s 21AW Evidence Act 1977 (Qld) ("the Act") and that the verdict of guilty on count 5 was unsafe and not supported by the evidence.  He has also applied for leave to appeal against sentence.  The prosecution case was that between 1 January and 11 November 2003 the appellant exposed his penis in all four times to two different young girls at N's house where he was living (counts 1 to 4), that he raped N at her house (count 5) between 1 January and 31 December 2003 and that he exposed himself to another young girl, T, at T's house (count 6) between 1 January and 31 December 2003.

The appeal against conviction

The absence of a jury direction under s 21AW of the Act

[2] Section 21AW of the Act applied in this case because the evidence of child witnesses, the complainants in counts 1 to 5, was taken under Div 4A Subdivision 3 of the Act (see s 21AW(1)(a)).  Section 21AW(2) relevantly provides:

"(2)The judicial officer presiding at the proceeding must instruct the jury that -

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant's guilt from it;  ... "  (my emphasis)

[3] The only pertinent directions given by the primary judge were as follows:

"Now, in this case a lot of the evidence is going to be heard by way of tape because we have a number of young children involved in this case.  Our law was amended ... about 18 months ... ago, and now all children's evidence is, if the children are under 12, is what we call pre-recorded.  So, initially when there's complaints made by children, the police tape an interview which is the first part of the evidence you will hear.  Then later when the matter has been committed for trial to this Court there's another hearing where there is cross‑examination of the child and that's recorded.  So all those children's evidence is going to be played on that television and that will be their method of giving evidence so you won't actually see the children in the Court in the flesh, in any case.  You will see them on the television.  It doesn't carry any more or less weight than any of the other witnesses that are going to give evidence.  It is just a different way of doing evidence because it is thought that coming into a courtroom is quite traumatic for young children.  It is just really a way to try and make it a bit easier for children to try and give evidence.  Their evidence is no more or less important or it doesn't have any more or less weight because of the way it has been recorded and it happens with every child under 12.  This isn't any particular special method for this case."

[4] That direction did not instruct the jury to the effect that, even though the children's evidence was pre-recorded on videotape rather than given in the method of other witnesses in the trial, they should not draw any inference as to the appellant's guilt from the method in which the children's evidence was given.  The respondent concedes that the failure of the judge to direct the jury as required under s 21AW(2)(a) amounts to an error of law.  That concession is rightly made in light of this Court's recent decisions in R v HAB;[1]  R v DM;[2]  R v Hellwig.[3]

[5] The respondent also concedes in respect of each of counts 1 to 5 that a substantial miscarriage of justice has actually occurred as a result of that error of law so that the appeal on those counts must be allowed and retrials ordered (s 668E(1A) Criminal Code).  That concession is also rightly made as on those counts the evidence turned principally on the complainant children's version of events.

[6] The respondent contends in respect of count 6, however, that this Court should be satisfied, despite the absence of the required direction under s 21AW(2)(a), that no substantial miscarriage of justice has actually occurred and the appeal should be dismissed under s 668E(1A).  The complainant in count 6, T, did not give evidence in the trial.  Unlike counts 1 to 5 the evidence relevant to count 6 did not turn primarily on the evidence of a child given under s 21AW but on the appellant's admission to police in the record of interview.  The appellant told police he exposed his penis to T at T's house in response to "a bit of a blackmail".  The appellant at trial did not dispute that he made those admissions;  nor did he dispute their accuracy.  The evidence against him on count 6 was overwhelming and uncontested.  Counsel for the appellant did not submit that s 668E(1A) should not be applied.  I am well satisfied that, despite the judicial error in not directing in accordance with s 21AW, the appeal against conviction in respect of count 6 should be dismissed because the verdict of guilty on that count has not resulted in any substantial miscarriage of justice.

Was the verdict of guilty on count 5 unreasonable or not supported having regard to the evidence?

[7] The appellant contends the verdict on count 5 was not supported on the evidence.  Although the appeal against conviction on count 5 must be allowed for the reasons already given, it is necessary to determine this issue in order to decide whether this Court should order a retrial on count 5.  A review of the whole of the evidence on count 5 is required.

[8] The case against the appellant on count 5 turned essentially on the evidence of the complainant N.  The offence was charged as having occurred between 1 January and 31 December 2003.  The prosecution case was that one morning during that period, when the appellant was living with N and her father, N came into the appellant's bedroom, he pulled her into the bed and raped her.  N was about nine years old at the time of the offence, 10 when she gave her tape-recorded interview with police tendered under s 93A Evidence Act and 11 when she gave her video‑recorded evidence for the trial.

[9] In her first tape-recorded interview, which took place with a male police officer on 11 August 2004, in answer to a question about why she was at the police station, she responded "I'm here because somebody raped me."  She said it happened in the house where she lived with her dad and the appellant and that it was the appellant who raped her by sticking his finger in her "rude part", which she then described as her vagina.  The following relevant conversations occurred during that interview:

"Police officer:...  You told me before that he raped you.

N:Yeah.

Police officer:Okay.  Can you tell me more about what happened on that day, from the start of the day.

N:It wasn't just one day.

Police officer:Okay.  Well how many days was it.

N:I think it was three or four.

Police officer:Okay.  Okay.  Can we go back to the first day."

She began to describe an incident but said that it was not the first time but the last time.

"Police officer:Well tell me about the last time.

N:And he pulled me to his bed and started raping me.

Police officer:Pulled you to his bed.  Okay.  You said he started raping you.  You, you told me before that he raped you by putting his finger in your vagina or your private part.  Is that what you mean by rape on this time.

N:Mmm.

Police officer:Okay.

N:That's what I mean in every one.

...

Police officer:... What were you wearing?

N:I don't know if I had my school uniform on or my frog pyjamas.  O, ah yeah, that's right, my frog pyjamas, they're purple with frogs, green frogs on them.

Police officer:Okay.  Did you have undies on.

N:Ah huh.

Police officer:Okay.  So you had your frog pyjamas.  Were they bottoms and a top.

N:Mmm mmm.

Police officer:Okay.  Now how did he touch you, because you were wearing clothes, that's what I mean.

N:He grabbed me.

...

And put me on the bed.  ...  Dad had gone to work.

...

Police officer:So did he rape you while your clothes were on.

N:He forced me to take my clothes off.

Police officer:Okay.  That's alright.  Do you remember what he said.

N:No.

Police officer:Okay.  Were you scared.

N:I had to have the day off because my rude part hurt so much, it wasn't funny.

...

Police officer:... So you said he raped you.  How many times, on this last time.

N:Once.

...

Because I, I screamed [unintelligible].

Police officer:...  Did he um, do you remember which finger it was.

N:His um, well I think he called it the eleventh finger.

Police officer:Tell me which one is the eleventh, put your hands up and show me which one is the eleventh finger.

N:There is none, and I mean down there.

...

A boy's rude part.

...

I just don't like saying the word.

Police officer:That's alright.  That's alright.  Ah so it wasn't his finger.

N:No, it wasn't his finger.

...

Police officer:...  How long did it happen for, do you remember.

N:I think it was about two minutes.

...

Two or three.

...

Police officer:... You said before that, earlier in the interview, you said that he put his finger into your vagina.  Is that right.  Did you mean back then that he put his boy's rude part.

N:Yeah.

Police officer:Into your vagina.

N:Yeah.

...

Police officer:...  Now just in relation, okay, the last time, we'll go back to the time before that.

N:I don't, I can't remember any one before then.

...

Police officer:...  So you said it happened on three, three or four times.

N:I'd say, yeah, I think it was only three though.

Police officer:That's alright.  Can you remember the first time.

N:Nuh ah, it's so hard to remember.

...

Police officer:...  On the first time was it with the eleventh finger.

N:No.

Police officer:What was it with.

N:It wasn't nothing, it was, he done to [T] instead.

...

Police officer:...  What did you mean by that you said you were raped the first time and then you said it was [T], not you.

N:Ah I just remembered, so it would have been two times I would have been.

Police officer:Two times.

N:Yes.

Police officer:Okay.  So we know when the last time was.

N:Yeah, but I can't remember the first one."

[10]  She went on to tell the police officer that the appellant raped T with the "eleventh finger" when T was staying at her house.  On another occasion when she and T were helping the appellant work on the farm which he leased he raped both of them with the "eleventh finger".  He raped T when she, N, was asleep.  She, N, woke up to see him on top of her [N].  He had taken off her clothes and then put them back on when she stirred.  He did not put his "eleventh finger" inside her private part because "he missed because [T] shouted".  Later in the interview she told police that T had previously been raped by her father who put jam on his penis;  after that the appellant started to rape T.  N said that after the appellant raped her [N] she felt sore all day.

[11]  She participated in a second interview with a male police officer on 8 November 2004.  When asked what she could remember she said "not much".  She said she could not remember telling the police officer in the earlier interview about the appellant's "eleventh finger";  she could not remember what happened.  She told police that the appellant raped her twice at the farm by sticking his penis in her vagina.  He did the same thing to T because she, N, woke up because T was screaming.  The appellant put his penis in N's vagina three times:  once at her house and twice at the farm.

[12]  Her evidence at trial was pre-recorded on 9 September 2005.  She told the prosecutor that on one occasion when she was playing hide and seek with a girlfriend F (the complainant in count 1 and count 4) she saw the appellant's penis and "[i]t looked kind of hairy".  In cross-examination she initially said that the appellant had sexual intercourse with her once or twice, she was not sure.  She agreed that T had told her that T had been raped by her mother's boyfriend and also by her father.  After some cross-examination recorded over eight pages of transcript, N asked for a break.  When the court resumed a few minutes later the following exchange occurred:

"Defence counsel: [N], I was asking you some questions before the break about what you were telling Detective Ian Leivers and I took you to the point where you said he pulled you to his bed and started raping you? --  I'm not quite sure if that's quite true.

All right.  He didn't do that? --  He - um, he might have.

Okay, so you told Detective Leivers, you accept, 'And he pulled me to his bed and started raping me.'  Now, did you tell him that? --  I can't remember.

...

What - am I clear in understanding that may not be true;  is that what you are now saying? --  I'm not quite sure.

Now, you see, there's some components or parts in that particular sentence, [N].  The first bit is;  'he pulled me to his bed'.  You are not sure if that is true or not? -- No.

The second part is 'started raping me'.  You are not sure if that is true or not? --  No."

[13]  The judge warned her of the seriousness of the charge against the appellant and how important it was that she was truthful.  Defence counsel then continued his cross‑examination.  N maintained that she was not quite sure how the appellant had had sexual intercourse with her, although it was true that he had sexual intercourse with her.

[14]  When cross-examined about the events at the appellant's shed on his leased farm she agreed that she did not see anything happen between T and the appellant.  She said she heard T scream and thought the appellant had raped her.  She said she told the police that she saw the appellant do things to T because she was not quite sure and was trying really hard to remember.

[15]  As mentioned earlier, T did not give evidence.

[16]  N first complained about the appellant's conduct to a school counsellor who had spoken to her about sexual, physical and emotional abuse and neglect in the context of N's concern about her father's girlfriend losing custody of her children.  N asked to speak to the counsellor and said "Oh you know that sexual abuse stuff that you talked about, you told me about? ... Well, that's kind of happened to me."  The counsellor asked what she meant.  She said that the appellant had sexually abused her.  When asked again what she meant she responded that the appellant had put his penis in her rude part.  Later that day N then repeated her allegations to the female acting school principal in the presence of another female teacher.  N said "... it's about a case of sexual abuse and I've sort of been raped".  She said the man who had been previously living with them, the appellant, was responsible.  She reported that he took his penis out of his pants, that he raped her, that it hurt, that she kept talking about "it" and that it had happened a number of times all in the year before she commenced at her present school.  Since the first time she had been having "hot wees" and that it hurt when she went to the toilet.

[17]  Dr McGregor, a consultant paediatrician and Chair of the Ipswich Suspected Child Abuse and Neglect Team since 1981, examined N's vaginal area on 8 November 2004.  Her hymen was not scarred and appeared intact with a diameter of seven mm, well within normal limits.  There was no evidence of scarring of the tissue between the hymen and the anus and no evidence of any discharge from the vagina.  He explained that the female genitalia consisted of the vulva with the external lips or labia majora and the internal lips or labia minora, which if separated reveal the hymen, a membrane with a central hole leading into the vagina.  If N's genitals had been penetrated by a male penis about 12 months earlier he would not necessarily expect to see any injury, especially if there was no force involved.  If there was no evidence of actual bleeding then it was more likely that the hymen had not been torn.  The symptom of "hot wees" after an act of penetration was consistent with some irritation to the tissues around the external orifice near the urethra, the tube from the bladder to the outside, and consistent with an act of penetration of at least the vulva.  If the male penis was not erect there was less risk of damage to the hymen because penetration of the quite small hymenal orifice would be difficult;  penetration of the external labia would be quite possible.

[18]  The appellant, who was a 68 year old man educated to Grade 6 primary standard, was interviewed by police.  The interview was tendered in the prosecution case.  It  included the following:

"Police officer:... [N] said that ah on some occasions that you'd actually touched her on her vagina with your hand.

Appellant:I don't think so, no.

Police officer:You don't think so.

Appellant:No.

Police officer:Is that because you can't remember or you didn't do it.

Appellant:I can't recall it.

Police officer:Okay.

Appellant:It's too long ago for me to remember back that far.

...

Police officer:[Appellant], okay, do you think that these girls are telling me lies.

Appellant:Most of it."

He then told police that when he was playing hide and seek with N and her friends and lifting them down from cupboards they would press themselves against him with their belly or something like that and then they would start talking stupid, "more than flirting ... they wanted [him] to sort of expose [himself]".  He said that N would sit "with her legs open bloody in front of you".  When asked whether this sexually aroused him he said that he could not get sexually aroused;  that he could not get an erection for more than half a second because he smoked too much;  he had suffered from this condition for about two or three years.  He denied that he had ever done anything to N in his bedroom.  When asked if there was any reason why N would have said he touched her on the vagina he said "because she wanted ten dollars to go to Wayne's World, she said that she was going to get me if I didn't give her ten dollars."  He said that on one occasion, when he was looking after N and T was also staying there, the girls came into the lounge room after a bath and dropped their towels to expose themselves to him.  When asked whether on that occasion he exposed his penis he said "No, I don't think I would [have] ... They wouldn't have seen much anyway".  He said he was not in the habit of exposing himself to little girls.  When asked whether he did it on that occasion he said "I don't know, I can't recall.  ... I could have but I'm not saying that I did or if I didn't because I can't recall it."  He agreed that N had seen his penis when she came into the bathroom when he was living in the house with her and her father although this was accidental on his part.  She did not seem worried;  she said she had seen it all before.

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

[20]  The appellant's counsel places some emphasis on observations made by the judge when discussing legal matters with counsel in the jury's absence prior to the commencement of addresses.  Her Honour said she was "musing out loud" and that she thought it unlikely the jury would convict of rape bearing in mind the medical evidence;  she indicated that she would tell the jury that the alternative verdict of attempted rape was also open to them.  The jury subsequently asked for a redirection on the difference between rape and attempted rape.  The following day the jury indicated to the judge that they were having difficulty reaching a unanimous verdict on count 5.  Her Honour gave further directions consistent with Black v The Queen.[4]  The jury retired again at 10.19 am.  There are no complaints about any aspects of the judge's directions to the jury.  The jury returned with their verdicts at 3.07 pm without asking for further judicial assistance.

[21]  N's evidence on count 5 was vague, confusing and in some ways inconsistent but she was a child recounting matters which occurred at least 12 months earlier.  She almost certainly would have found her interviews with the male police officers and the giving of evidence embarrassing and distressing.  She probably had confused emotions about the incidents she was discussing.  Despite the weaknesses in her testimony, it would be open to a jury to accept from it that she consistently stated that on one occasion in the appellant's bedroom at her home the appellant put his penis inside her genitals and that this evidence was true.  The medical evidence and the fact that N gave no evidence of any bleeding suggested that there was no, or at least very little, penetration of the hymenal orifice.  She was not asked about exactly what she meant by the term "vagina".  She may well have been using it to mean the female genitals rather than its technical medical meaning of the area inside the hymenal orifice.  The appellant claimed to police to have an erectile dysfunction.  This claim and the medical evidence was, however, completely consistent with penetration of the vulva (the labia majora or the outer lips of the vagina).  Her complaint of "hot wees" and sore genitals after the appellant assaulted her was according to the medical evidence also consistent with penetration.  The appellant's account to police was that his relationship with N was sexualized and inappropriate.  N consistently told her female school counsellor and teachers that the appellant had put his penis in her genitals.

[22]  Section 349(2)(a) Criminal Code defines rape as including carnal knowledge without the other person's consent.  "Carnal knowledge" is complete on penetration to any extent (s 6 Criminal Code) but the Criminal Code does not further define "carnal knowledge".  At common law it is not necessary to prove penetration of the actual vagina or rupture of the hymen to establish carnal knowledge;  "carnal knowledge" is complete upon penetration of any part of the female genitalia including the labia:  R v Lines;[5]  R v Randall;[6]  Holland v R.[7]  If there be any doubt that the common law position also applies under the Criminal Code, it is removed by the extended definition of rape under s 349(2)(b) Criminal Code, which provides that rape also includes the penetration of "the vulva, vagina or anus ... to any extent with a thing or a part of the person's body that is not a penis without the other person's consent".  "Carnal knowledge" in s 349 includes penetration of the vulva by the penis.

[23]  After reviewing the whole of the evidence I am satisfied it was open to the jury to accept beyond reasonable doubt N's account, which she essentially maintained, that on one occasion in the appellant's bedroom at her house the appellant put his penis inside her vulva without her consent.  The jury were entitled to conclude that inconsistencies of the sort on which the appellant now relies arose out of N's confusion, not her dishonesty or unreliability.  Justice Atkinson for example in her reasons, with which I agree, highlights some instances where N may well have been confused by the style of cross-examination.  Cross-examination of a child complainant in cases of this sort is almost always a difficult task.  Counsel should nevertheless assiduously attempt to avoid pitfalls like those to which Atkinson J has referred.  Confusion resulting from such cross-examination will not necessarily persuade a jury to have a reasonable doubt about the accuracy of the complainant's essential evidence;  nor will it necessarily persuade an appellate court that the subsequent guilty verdict is unreasonable.  It is a jury question whether they have a reasonable doubt about her claims because of the many matters raised by the appellant.  It follows that the jury verdict was not unreasonable;  it was supported by the evidence and open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.  This ground of appeal fails.  A retrial will have to be ordered in respect of count 5.

The appeal against sentence

[24]  The appellant has been successful in having all convictions set aside but for count 6 so that the sentences imposed for those convictions are automatically set aside without further order.  He was sentenced in respect of counts 1 to 4 and count 6 to 18 months imprisonment concurrent with the seven year term of imprisonment imposed on count 5, rape.  The sentences were imposed on 6 October 2005 and 349 days spent in pre‑sentence custody between then and 23 October 2004 were declared to be time already served under the sentence.  It follows that he has now more than served the only remaining sentence, 18 months imprisonment on count 6, so that his application for leave to appeal against sentence has become otiose.  I note, however, that in the circumstances here, where the appellant had no prior like convictions and was 68 years old, the sentence of 18 months imprisonment was outside the appropriate range for a single isolated episode of wilful exposure to a young girl.

Orders

[25]  The appeal against conviction in respect of counts 1 to 5 is allowed.  Those convictions are set aside and new trials are ordered.  In respect of count 6 the appeal against conviction is dismissed.  The application for leave to appeal against sentence is also dismissed.

[26]  WILSON J:  I have read the reasons for judgment of the President and Justice Atkinson.  I agree with the orders proposed by the President and with her Honour’s reasons.

[27]  I wish to say a few words about the Equal Treatment Bench Book[8] to which Justice Atkinson refers.  In the context of the increasing diversity of those who come before the Courts, both as litigants and as witnesses, the QETBB was published to assist judicial officers fulfil their duty of ensuring that justice is administered fairly.  Inspired by a bench book produced by the Judicial Studies Board in England,[9] the editors of the QETBB[10] have presented a useful collection of information from many sources which may assist judicial officers to recognise potential pitfalls and to avoid them.  For example, it includes findings and recommendations by researchers across a range of disciplines – material which may not be readily available to a busy judicial officer.  It is not the QETBB’s function to be prescriptive in any particular circumstances[11] and it would be wrong to elevate it to authoritative status, whether consciously or subconsciously.  In my respectful view circumspection should be exercised in citing it in submissions before the courts and in courts’ reasons for judgment.

[28]  ATKINSON J:  I have had the advantage of reading the reasons of the President with which I respectfully agree.  The learned judge’s summing up failed to give all of the directions required by s 21AW of the Evidence Act 1977 (Qld) and the prosecution did not seek to reargue the correctness of the decisions of this Court which have held that, unless the proviso applies, such failure is fatal.  I agree with the President that the proviso can only apply in this case to count 6.  It follows that the verdicts on counts 1 to 5 must be aside.

Count 5

[29]  One of the counts of which the appellant was convicted was one count of rape against N, which was count 5 on the indictment.  Otherwise he was convicted on four counts of indecent treatment of three other girls under the age of 12 years.  It was argued that the evidence of the complainant on count 5 was unsatisfactory and the verdict was therefore unreasonable.  This submission was in support of the ground of appeal that the verdict was unsafe, unsatisfactory and not supported by the evidence.  Like the President, I am satisfied that a retrial should be ordered on that count.

[30]  The grounds of appeal and the argument in Court raise some matters on which I wish to add some further observations of my own.  One of the submissions made was that answers given by the complainant while cross-examined make her evidence unreliable.  It is that matter on which I wish to add some comment.

[31]  The child complainant, N, was 11 years old at the time of trial.  Her cross‑examination was pre-recorded in September 2005 about events that were alleged to have occurred in 2003.  The video tape of two interviews with her was tendered as her evidence in chief.  She was then cross-examined by defence counsel.  It was clear that the child found many of the questions put by defence counsel very confusing.  For example, the following exchange occurred early in the cross‑examination:

“All right; now, you see, in that interview at page 12 of my transcript, you were asked, ‘Okay, and you saw his penis’ and you said, ‘I didn’t’.  Answer: Okay.  Question Okay by Detective Murray and you said, ‘She did’ and you were referring to [F].  Now, do you remember saying that to Detective Murray? -- No, I do not remember saying that.

All right; so when were you first asked - in your memory - about when you might have seen Mr [S]’s penis with [F]? -- Pardon, can you please repeat that question?

When were you first asked - when do you remember first being asked about whether or not you saw Mr [S]’s penis that day in the cupboard? -- I’m not quite sure of that answer.

All right, well, you don’t remember -----”

[32]  The trial judge suggested to defence counsel that he “break it down a bit.”  After some more unsuccessful attempts to ask the question clearly, counsel said:

“Now, and you’ve just given some evidence here now, in this room, saying that you saw his penis and that it was hairy.  When were you first asked that question?  Was it yesterday or this morning?”

[33]  The prosecution counsel interpolated:

“Is that the question, what his penis looked like?”

[34]  Defence counsel then added:

“Well, seeing the penis.  When do you think you were first asked if you had seen his penis or not?”

The child was then able to tell counsel that it was when she talked to the investigating police officer whom she referred to as Ian.

Cross-examination of children

[35]  The need for care and precision when cross-examining children is well known.[12]  The topic is dealt with in some detail in the Equal Treatment Bench Book of the Queensland Supreme Court (QETBB) which draws on some of the available research.  In Chapter 13.5, Communication with Child Witnesses, the QETBB says:

“Competent use of language is of critical importance in legal proceedings.  The difference between an experienced barrister, sophisticated in the use of the English language, and a child witness may be extreme, and this may put the child at a heightened disadvantage vis-à-vis an adult witness.  As Brennan and Brennan commented in their leading study of child witnesses under cross‑examination:

‘Lawyers are masterful language users.  They may not be aware of the intricacies of their language usage at a conscious or descriptive level but they have at their disposal the benefits of fine training in the use and abuse of words, phrases, and structures.  Their careers are built on words since these are the currency of the law.  They know how to choose their words and structures to gain maximum effect, and they are skilled at using the words of others for their own benefit.  In few other contexts are words and their meanings so tightly prescribed.  To the child, a relative novice on the continuum of language usage, the distance between the language of the court and their own experiences of how and why language is used must appear immense.’”[13]

[36]  Counsel must be aware of the potential for misunderstanding and the potential for an answer not to reveal the true state of knowledge of the witness. There is no doubt that formulating clear, unambiguous questions to elicit evidence from children is not an easy task. The court is, however, given specific powers in s 21 of the Evidence Act to disallow improper questions and by s 21A(2)(f) to direct that questions to special witnesses such as children be kept simple.

Use of the negative

[37]  Some examples of problematic questioning styles are given in the QETBB, all of which were in evidence in counsel’s cross-examination in this case.  The first was the use of the negative.  The QETBB explains at paragraph 13.5.1:

“Even though the negative is commonly used in general speech, the ways in which barristers use it in court have the potential to confuse child witnesses.  Questions which use structures such as ‘Didn’t X happen?’ and ‘Isn’t X true?’ are generally too complex, as they require double processing before they can be answered.  The use of the negative is usually unnecessary, only serving to complicate the question.  There is therefore a significant chance that a child’s answer to a question phrased in such a manner will not reflect his or her true meaning.

Answers which children give to these sorts of questions may also be unclear, as it may be difficult to identify the part of the question to which the answer relates.  Brennan and Brennan give the following example to illustrate this problem.  A 12 year old girl was asked in cross-examination:

Q:‘Now you had a bruise, did you not, near one of your breasts, do you remember that?’

A:‘No.’

As the authors point out, the witness’s answer may have been a response to any one of three questions:

• Did you have a bruise?
• Was it near your breast?
• Do you remember that?”

[38]  At a critical point in the cross-examination, defence counsel in this case asked:

“The second part is ‘started raping me’.  You are not sure if that is true or not?”

This was a most ambiguous question even when seen in context.  A more detailed examination of the ambiguities inherent in that question will follow when the question is examined in its context.

[39]  Another example of a confusing style of questioning with use of the negative can be seen in the following exchange in the cross-examination of the child N:

“You have a friend called [T], don’t you? -- Yes.

You have a couple of friends called [T], correct? -- No, only one.

She was a good friend? -- Yes.

One of those friends that you could tell things to; secrets? -- Yes.

And she could tell you secrets? -- Yep.

And she told you, didn’t she, that she’d been raped by her mother’s boyfriend? -- Yes.

And also by her father? -- Yes.

And when you were talking to Detective Leivers, Ian Leivers, you were telling her story to Detective Leivers, weren’t you? -- I’m not quite sure.

You were just saying these things had happened to you when, in fact, they hadn’t happened to you, [N]? -- That’s not true.”

She was then asked:

“You, at one point, said there was three or four times that you had had sex with Mr [S]?”

[40]  Her answer, “I was not quite sure,” may have been a response to any one of the following questions:

● Did you have sex with Mr S three or four times?

● Did you say you had sex with Mr S three or four times?

● Do you know whether you had sex with Mr S three times or four times?

● Did you say you did not know whether you had sex with Mr S three times or four times?

● Did you say that you had sex with Mr S three or four times on only one occasion?

It is hardly surprising that the child’s response was, “I was not quite sure.”

Juxtaposition of unrelated topics

[41]  The second specific matter dealt with by the QETBB is juxtaposition of unrelated topics.  The QETBB explains at paragraph 13.5.2:

“In everyday conversations there are generally logical links between topics covered.  However, cross-examiners sometimes suddenly switch topics, and the new questions may be unrelated to the previous topic under discussion.  A child is more likely to be disoriented and confused by an unexpected change than an adult witness, and so efforts should be made to contextualise questions for children.”

[42]  Many examples of that can be found in this cross-examination.  Not long after the cross-examination referred to above, defence counsel said:

“All right.  Now, when you first spoke to your guidance officer, Miss Keira Roffey.  Do you know her?”

[43]  This question was apparently unrelated to the previous questions.  The child was confused and asked counsel to repeat the question.  He then said:

“Do you know Miss Keira Roffey-Mitchell?”

[44]  Her answer was then a straightforward “Yes.”

Unduly long and complex questions

[45]  The third area dealt with by the QETBB at 13.5.3 is the problem of unduly long and complex questions.  The QETBB explains:

“Questions which are unusually long and complex obviously have the potential to confuse any witness, but children are especially vulnerable to confusion.  Usually, such a question has been poorly phrased.  Counsel and judges should simplify questions, and aim to limit themselves to one concept per question.  Brennan and Brennan give the following example of a question, which was asked of a seven year old child:

Q: ‘And you told the policeman that Daddy said “Mum’s coming.”  Now that’s not true is it.  Do you remember telling the court here just a few moments ago, you said “Mum’s coming.”  That is true is it not?’

A: ‘Yes.’”

[46]  The questions to which I have already referred which were asked early in the cross‑examination are examples of unduly long and complex questions which would be confusing to any witness, let alone an 11 year old child.

Specific or difficult vocabulary

[47]  The fourth example given in the QETBB is of use of legal or other technical terminology or jargon.  Paragraph 13.5.4 deals with the topic of specific and difficult vocabulary:

“Counsel and judges should be careful not to use vocabulary and sentence structures which are too sophisticated for the child giving evidence.  This particularly applies to unfamiliar legal terminology which is frequently used in courtrooms.  Commonly used phrases such as ‘I’ll withdraw that’ and ‘I put it to you that…’ have a specific meaning in a courtroom context which many children will not understand.  As an example, Brennan and Brennan point to the commonly used phrase, ‘You told His Worship earlier…’  A child witness may be confused by this terminology, as the witness would have been answering questions put by counsel, not by the judge.”

[48]  When counsel asked the following:

“All right; but you – who did you write that note for when you said it was in May, it was a Tuesday morning.  ‘I got out of bed and went to the toilet’? -- I gave it to Keira.

You gave that one to Keira? -- I think.

All right; if I suggest that it comes from ----- (emphasis added)

[49]  Her Honour intervened, “that’s not an appropriate way to ask a question, you know that.”  Nevertheless, not long after that, counsel asked:

“And I suggest to you, of course, [N], that is because you had nothing to tell them?” (emphasis added)

Repetition

[50]  The fifth problem area referred to by the QETBB is repetition of questions.  Paragraph 13.5.5 provides:

“Poole and White have identified that the repetition of specific questions within an interview session may also confuse a child witness, as a child may be more likely than an adult to interpret this as an indication that his or her first answer was wrong and change it as a consequence.  Child witnesses are particularly vulnerable to this technique, as ‘children are more prone than adults to change answers to yes-no questions, specific leading questions, and non-leading questions following negative feedback.’[14]

…

In a 1995 survey conducted by the Judicial Commission of New South Wales of child witnesses in sexual assault cases, many children were critical of the length and the repetitiveness of the cross-examination they had faced.  Many children did not understand why the questioning had been so repetitive, and were confused by this.[15]  The Judicial Commission concluded:

‘The appropriateness of the language also affected children’s perceptions of their court experience.  The more lawyers adapted their language to that of the children, the fairer children rated the court process and their treatment there.  The harder children found it to understand the questions, the less they thought they had a chance to say what they wanted in court, and the harder they said it was to answer the questions.’”[16]

Cross-examination in this case

[51]  Those factors must be kept steadily in mind when one considers the excerpt from the cross-examination heavily relied upon by the appellant’s counsel.

“Defence counsel: [N], I was asking you some questions before the break about what you were telling detective Ian Leivers and I took [you to] the point where you said he pulled you to his bed and started raping you? -- I’m not quite sure if that’s quite true.

All right.  He didn’t do that? -- He - um, he might have.

Okay, so you told detective Leivers, you accept, ‘And he pulled me to his bed and started raping me.’  Now, did you tell him that? -- I can’t remember.

…

What - am I clear in understanding that may not be true; is that what you are now saying? -- I’m not quite sure.

Now, you see, there’s some components or parts in that particular sentence, N.  The first bit is; ‘he pulled me to his bed’.  You are not sure if that is true or not? -- No.

The second part is ‘started raping me’.  You are not sure if that is true or not? -- No.”

[52]  The first question is complex, referring to what the barrister had been asking the child questions about, what she had said to a police officer and no doubt, at least in the child’s mind, to what had actually happened.  The second question is negative and does not specify which of the three men, himself, the police officer, or the accused, that defence counsel is referring to when he uses the pronoun “he”.  The third question is complex and uses the phrase “you accept” commonly used in courts but much less commonly in ordinary parlance.  The fourth question uses the term “that” to refer to what might not be true, without saying whether “that” is whether it was not true that she told something to the police officer or whether what she told the police officer was not true.  The fifth question contains the question “You are not sure if that is true or not?”  That question contains a negative and is complex; when the child answers, “No”, it is unclear what the answer actually means.

[53]  The same criticism can be made of the last question.  If that question is examined, the answer “no” could be the answer to a number of different questions.  Some of those questions might be:

● Did you tell Detective Leivers that he (unspecified) started raping you?

● Did you tell Detective Leivers that he started raping you (but did not continue raping you)?

● Did he start raping you?

● Are you sure that you told Detective Leivers that he started raping you?

● Are you sure that he started raping you?

● Is it true that you told Detective Leivers that he started raping you?

● Is it true that he started raping you?

● Did he start raping you after he pulled you to his bed?

[54]  The trial judge had warned the child at the beginning of her evidence that she might find the questions confusing and told her to tell the barristers if she did not understand the question.  The judge’s prediction proved correct.  The judge endeavoured to limit the defence counsel to appropriate questions but her efforts were largely thwarted by the difficulty encountered by defence counsel in keeping his questions simple.  When he did so, the complainant’s evidence was clear.  When he did not, the complainant’s evidence was confusing.  It appears that a jury might well draw the conclusion that any confusion in her evidence was caused by the nature of the questions asked.  They were entitled to regard that factor as not having any impact on her credibility or their assessment of the veracity or otherwise of her evidence.