SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I agree with the reasons of Mackenzie J and with the orders proposed by his Honour.

[2]  MACKENZIE J:  The appellant was convicted of rape and sentenced to three years imprisonment.  The appeal is only against conviction.  The sole ground of appeal in the notice of appeal filed within time is that the verdict was unreasonable or cannot be supported having regard to the evidence.  Leave to add grounds of appeal that the trial miscarried because evidence of an “uncharged act” was admitted and that the learned Trial Judge erred when he directed the jury on the permissible use of the “uncharged act” was not opposed by the Crown.

[3] The complainant is the appellant’s daughter.  She was about four years eight months old at the time of the offence.  It was alleged that the appellant had digitally penetrated the complainant’s vagina on an occasion when she was in a McDonald’s store during an access visit to him.

[4] The appellant and the complainant’s mother had separated and shortly before the date of the incident, proceedings for dissolution of the marriage had been served on the appellant.  He had court ordered unsupervised access to the complainant and her two year old brother and pursuant to that, on 17 October 2004, an arrangement was made that the complainant’s mother would deliver her to McDonald’s in the Ipswich Mall.  The complainant, but not her brother, was left with the appellant in the play area at McDonald’s while her mother, her mother’s aunt and the boy went to a Crazy Clark’s store nearby. 

[5] About 10 or 15 minutes later, the appellant and the complainant went to the vicinity of Crazy Clark’s where they met the others, following which the appellant departed.  There was nothing in the complainant’s demeanour at this point that suggested that she was in any way upset. According to the complainant’s mother, upon returning home the complainant and her brother played in the backyard, apparently happily, until the complainant cut her foot. 

[6] When this occurred, the complainant’s mother told her to have a bath.  When the complainant got into the bath she complained that her vagina was sore, using the term “fanny”, which was the name she used to describe her vagina. When the complainant got out of the bath her mother observed that it was red, so she applied some cream in an attempt to ease the irritation.  The child complained that she suffered a stinging feeling when she wished to urinate.  The complainant’s mother said that a similar complaint had been made during the afternoon.  When the child urinated during the evening her mother noticed a small number of blood spots on the toilet paper.  She then phoned a medical service, as a result of which a doctor attended some hours later.  That doctor was unavailable to give evidence because she had left the country and her whereabouts were unknown.  Three days later, on 20 October 2004, the complainant’s mother took her to another doctor in relation to finding the blood on the toilet paper.  The doctor recommended a dietary regime for constipation.

[7] It was conceded by the complainant’s mother that it was probable that she had taken the complainant to the Ipswich General Hospital on 18 February 2002, because the child was crying out in pain and grabbing her groin when urinating and again in October 2002 in connection with a complaint of stinging when urinating.  There was another visit to the Ipswich Hospital on 19 November 2003 when the complainant accidentally fell on a cupboard or the corner of a chest of drawers and grazed her vagina to the inside of the labia causing a little bleeding. 

[8] There was a discrepancy between the complainant’s mother’s evidence and that of her aunt as to whether the aunt had been dropped off at her own house on the 17 October 2004 or whether she had returned to the complainant’s home at Bundamba.  The complainant’s mother said that she dropped off her aunt at her own home; the aunt claims she went to the complainant’s house and stayed the night.  Both women gave evidence of seeing redness in the child’s vagina.  The aunt gives a different version of events of the afternoon in that she says that the complainant lay down and slept most of the afternoon while he brother played in the lounge room.  The aunt said that she asked the complainant if anyone had touched her and she said “No”. 

[9] The first evidence that the accused had interfered with the child emerged when she was examined by Dr McGregor, a paediatrician, on 22 November 2004.  On examination, he found a defect at the midpoint of the hymen and healing scar tissue.  Because of the stage at which the healing was, he was of the opinion that the injury had happened between 2 and 6 weeks prior to his investigation.  He said that the injury involved an act of penetration, the diameter of the object being at least 7 mm and possibly more than that.  He thought it would have been caused by fairly rapidly applied force.  It was consistent with penetration by an adult male finger.  Because of the position of the injury he thought that accidental injury, including the kinds of scenarios involved in previous accidents, was unlikely to have caused what he observed.

[10]  Dr McGregor asked the complainant a series of questions including whether any men who lived at the same address as her father had touched her on the fanny.  She shook her head.  Then he asked her if her daddy was ever naughty and she nodded in assent.  He specifically asked her if her daddy touched her on the fanny and she nodded affirmatively.  When the question was repeated she nodded again.  Where a child is young, questioning of this kind is undesirable since it creates a risk, amongst other things, of gratuitous concurrence with the content of the question rather than a reliable recollection. The evidence is not rendered inadmissible merely for that reason, but a residual discretion remains to exclude it if it is considered unfair to admit it in a particular case (Criminal Law (Sexual Offences) Act 1978 s 4A; Evidence Act 1977 s 98, s 130).

[11]  In the subsequent interview with a police officer on video tape, which was played to the jury, she said that she told the doctor about her father putting his finger in her vagina at McDonald’s.  She said she did not know how his finger got there.  When he put his finger in her vagina it felt sore.  It felt better when he stopped.  She said, for the first time, that she had cried while at McDonald’s.  She said that she did not tell anyone what her father did.  The other responses, where they were given during the record of interview, were mostly non-verbal; in a number of instances she did not respond, verbally or non-verbally.

[12]  The same may be said about her evidence at trial.  When the appellant’s trial counsel asked whether her father had done anything naughty to her at McDonald’s, she nodded but did not respond to a question “Can you tell me what that was”.  Later in the cross-examination she was asked “Has anyone ever touched you on your fanny”.  She replied “Dad”.  When asked where it happened, she said “At McDonald’s”.  She did not respond when asked in what part of McDonald’s they were in when it happened.  A subsequent question designed to elicit the same information produced an equivocal response because the question contained several propositions.

[13]  In addition to the evidence relating to the count on which the appellant was convicted, evidence, described by the Crown Prosecutor in his opening as “evidence of the relationship” between the appellant and the child, was led from the child’s mother and her aunt.  Although the timing of this incident is vague on the evidence, it probably occurred within a month prior to the matter in respect of which the appellant was convicted.  On that occasion, the appellant was sitting in the lounge room shortly after he had arrived at the complainant’s home.  The complainant who, according to the aunt was excited to see the accused, went over to him and lay across his legs.  Both women saw him rub his hand up and down between her buttocks.  The girl was clad only in underpants and the rubbing was done outside the underpants.  According to the aunt, the girl was laughing.  The evidence is that the girl’s mother told him to stop and he said “Oh, my girl loves it”. 

[14]  The indictment originally presented contained two counts, one of which related to 19 September 2004 and alleged unlawful and indecent dealing with the girl with circumstances of aggravation.  That was not proceeded with at trial and a nolle prosequi was entered when the appellant was convicted of the second count.  That is, in all probability, the incident generating the evidence relating to the grounds added by leave.  It is well established that “relationship” evidence is admissible in appropriate circumstances.  It is not necessary for disposal of this appeal to discuss the theoretical basis of such evidence other than to say that one prerequisite to its admissibility is its relevance to the issues in the trial.  The evidence must also satisfy the test that its prejudicial nature is outweighed by its probative value. In my view, the evidence could not qualify as admissible evidence on any other basis.

[15]  The submissions on behalf of the appellant are that the evidence could not properly be regarded as meeting the test for admission of relationship evidence and that, in any event, the learned Trial Judge did not give a sufficient direction on the evidence if it was admissible. 

[16]  The evidence was not objected to at trial.  However, it is difficult to see that there was any tactical reason for allowing it to be given.  As described by the complainant’s mother and her aunt, the appellant’s action in rubbing the complainant’s buttocks was equivocal; it may or may not have been sexually motivated. Since the action was equivocal, its relevance as relationship evidence which may assist in inferring whether on the occasion in respect of which he was being tried, the appellant inserted his finger into the child’s vagina is not obvious. Its prejudicial effect is clear if a jury were to speculate or assume that it had a sexual connotation.  Conversely its probative value would be minimal. 

[17]  It was submitted by the Crown in submissions before us that the relevant characteristic of the relationship demonstrated by the evidence was that it showed that the appellant had an attitude towards the child in that he was prepared to place a finger in parts of a child’s body not normally touched in the ordinary course of dealing with a child, or could not see anything wrong with doing so.  In my view that does not cogently justify the admission of the evidence and it should not have been admitted. There is no basis upon which the proviso can be applied. The appeal should be allowed for that reason.

[18]  While it is therefore not necessary to consider the associated ground of appeal concerning the adequacy of the direction on the use to be made of the evidence to allow the appeal, it may be observed that the direction was appropriate as a direction on the use that may be made of relationship evidence in general. It conformed with the terms of the benchbook. The benchbook is a useful resource for the purpose of giving directions of law. However, there will inevitably be occasions where it is necessary to modify or further explain the benchbook directions to suit the requirements of the particular case.

[19]  The difficulty in this case was that, in the context of the evidence, the jury would have had to have been satisfied that, on the facts of the case, the action on the first occasion had a sexual rather than an innocent connotation before they could make use of it for the purpose for which it was admitted. The direction did not clearly do so, in that, if the jury applied it literally, they may have been left with the impression that they only had to be satisfied that the incident happened rather than that it was of a nature that enhanced the prosecution allegation that the offence charged had occurred.

[20]  There are two other matters raised by the appellant, which bear on the question whether an order for a new trial should be made.  The first was that because the complainant was unresponsive to many of the questions other than those relating to the central acts themselves, the appellant’s counsel was deprived of the opportunity to effectively test or examine the fundamental issues in the case.  It was accepted by the appellant’s counsel that there are inherent difficulties in eliciting evidence both in chief and in cross-examination from the child as young as the present complainant.  However it was submitted that the complainant’s demeanour precluded proper exercise of the right to cross-examine, and that a fair trial did not ensue.  At the conclusion of the pre-recording of the complainant’s evidence, experienced defence counsel recorded the difficulty he was placed in in relation to putting his instructions fully to her. However, there was no application on the record at  trial that it should be aborted because of the difficulty. If there is a new trial, it is open to the appellant to make submissions on the subject in the light of experience at this trial.

[21]  The other submission was that the verdict was unsafe and unsatisfactory.  Having reviewed the evidence in detail, it is apparent that a significant element in the Crown case is the medical evidence that there was an injury to the girl’s hymen which, according to the doctor, occurred within a period consistent with the alleged incident occurring and was consistent, as far as causation is concerned, with insertion of an adult’s finger.  There was also evidence that the doctor considered that the mishaps of the kind explored during the trial were unlikely to have caused the injury he observed because of its location.

[22]  As against that, there were a number of matters for the jury to resolve, including the unusual circumstances in which the offence was alleged to have been committed, the lack of distress immediately after, the lack of any early complaint, denials of interference, the circumstances of the first allegation that the offence had happened and the conflicting evidence of the complainant’s mother and her aunt about events on the afternoon of the alleged offence.  Some of those issues may have been resolved by preference of one witness over another: others were essentially questions for the jury to resolve.

[23]  Having reviewed the evidence, I am not persuaded that the conviction should be quashed on the ground that it was unsafe and unsatisfactory.  Accordingly, for the reasons previously given, the appeal should be allowed and a new trial ordered.

[24]  JONES J:  I agree.