SUPREME COURT OF QUEENSLAND

1. MCMURDO P:  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by Keane JA.

2. KEANE JA:  On 27 July 2006, the appellant was convicted upon the verdict of a jury of two counts of indecent dealing with a child under 12 years of age.  The complainant child, T, was the appellant's daughter who was born on 24 August 1996.  The appellant was also convicted on one count of permitting himself to be indecently dealt with by the same child.  The offences were alleged to have occurred between August and December 2003.

3. The appellant was sentenced to two and a half years imprisonment in respect of each offence, the terms to be served concurrently.

4. The appellant appeals against each conviction on the ground that it "is unjust and contrary to law". The appellant also sought leave to appeal against the sentence which was imposed on the ground that it was "manifestly excessive". It is necessary to deal first with the appellant's challenge to the convictions.

The Crown case at trial

5. The case for the Crown was that, between 24 August 2003 and 25 December 2003, the appellant engaged in the sexual abuse of the complainant on three particular occasions. The first count related to an occasion when the appellant allegedly lay upon the complainant and rubbed his penis against her vagina. The second count related to an occasion when the appellant was alleged to have had the complainant sit on his stomach to rub his penis against her vagina. On this occasion, he allegedly asked her to squeeze his penis, which she did until he ejaculated. This allegation was the subject of the third count.

6. The complainant child was the principal witness for the Crown. Her evidence was contained in a statement by the complainant to the police made on 19 January 2004 and tendered at trial under s 93A of the Evidence Act 1977 (Qld), and pre-recorded evidence taken on 4 February 2005 pursuant to s 21AK of the Evidence Act.

7. In the complainant's statement to the police, she said that one night "before Christmas" and "after her birthday" in 2003, while she and the appellant were on the bed in his bedroom, the appellant was naked and he told the complainant to take her clothes off. The complainant said that the appellant then lay on top of her and "rubbed privates together". She said that he told her to "hop under him and hold … around his back and that and he did this big – horsey thing … Um, he kept doing this gallop thing like a horsey". She asked him to stop, but he kept going until he finished. He then said to her: "Don't tell Mummy".

8. The complainant said that this occurred "on three nights". She later said that they did this "about one or two times" and later she said it was "maybe one".

9. When she was asked "what did he do on that – the last time?", she said that he told her: "To hop on top of him at the start – every single time I hop on top of him at the start and my privates are together and I normally put my privates up on his tummy 'cause I don't like the privates rubbed together … And he also tell me to hold his privates." She was then asked: "His willy. What's it doing?" She responded: "Um, it squirting stuff out." This felt, she said, "Gooey".

10. In the complainant's pre-recorded evidence, cross-examination of the complainant elicited an assertion by the complainant that, in addition to "rubbing privates" and the complainant's holding and squeezing the appellant's penis, he asked her to kiss his penis, but she refused. When the complainant was asked whether these "three things happened on the one night, the first night", the complainant responded: "He also did them on the other three nights", and that there were "four nights" in all. The complainant initially said that she had no clothes on when these incidents occurred; in re-examination, she said that she was wearing underwear.

11. The complainant was cross-examined to the effect that her mother had said "bad things" about the appellant after they had separated. The complainant denied this suggestion, save that she admitted that her mother said that the appellant was "a greedy man". Further cross-examination elicited the complainant's agreement to the proposition that the complainant thought that "maybe mum wanted to hear that dad had done rude things to you". The complainant denied that her mother had asked her "to make things up that aren't true".

12. The complainant also agreed that, on an occasion between her birthday and Christmas 2003, she was in her father's bed touching her vagina when her father came in and told her that she should not do that. The complainant steadfastly refused, however, to accept the proposition that her father had not "done rude things" to her.

13. The complainant's mother gave evidence that she and the appellant had married in 1994 and separated in March 2001. Their children resided with her until approximately 12 May 2003 when the children went to stay with the appellant at her suggestion because she was having difficulty coping. She said that, in September to November 2003, she had noticed the complainant jumping up on the appellant and rubbing her groin "all over him". After the Christmas holidays in January 2004, she noticed the complainant making rude gestures to her. She asked the complainant "Has anybody touched you?" The complainant answered: "Yes, Daddy touches me", indicating the area of her vagina. The complainant described to her mother the "special little horsey ride" where "she was underneath, like, he was on top of her like a horsey ride". The complainant also told her mother that she had to "hold his privates", and that she "thought her dad had weed. It was sticky wee". The complainant's mother said that the appellant had told the complainant: "Don't tell Mummy".

14. In the course of cross-examination of the complainant's mother, it was suggested that the complainant's mother may have pressured the complainant to make up allegations of sexual abuse against the appellant. This suggestion was denied.

15. The Crown also tendered the record of a telephone conversation on 24 January 2004 between Constable Skerke and the appellant. The appellant had been contacted by police about the complainant's allegations on the previous day. The appellant telephoned the police the following morning, and their conversation was recorded. In the course of this conversation the appellant said that the complainant had hugged him "with her feet" and that he had told her not to do that. He also said that, on one occasion, the complainant had come into his bed at night when she was sick. On this occasion, he noticed that she was "sort of rubbing herself … on her vagina". He asked her what she was doing, and told her that she should not do it and that "This'll be our secret". He said that, on other occasions, the complainant came into his bedroom and asked: "Can I lay with you, Daddy?" and he would say "No", and the complainant would go off to bed.

16. The appellant said that, on one occasion, he was in her bed lying next to her when he became aware that she was touching herself. He told her that this was something she "shouldn't do". He said that he then went off to his bed. He said that a "couple of weeks after that", she was wrestling with him when she climbed up on his side "and then all of a sudden she started moving her privates into my hip". He then "rolled over and then she's tried to do it into my stomach". He said that he said to her: "You just don't do that." He said that, at this time, he did not have a shirt on but that he was wearing a pair of shorts. The complainant was wearing pyjamas.

The appellant's case at trial

17. The appellant gave evidence. He denied the charges against him. He said that, when the children first visited him for a short stay, the complainant said to him: "Mum is saying that you're touching my privates", and he responded: "Well, we know that's not true. Mum's just being silly."

18. The appellant gave evidence that, on subsequent occasions, he noticed the complainant "touching her privates when [he] was putting her to sleep". He said that, on one occasion:

"I was laying beside her in her bed … she was twitching all the time and I said … 'settle down'.  She wouldn't settle and I rolled over to see what she was doing and she was touching her privates.  I jumped straight up out of bed [and] said to her, 'You don't do that.  If you need to do that, you only do it when you're by yourself and no-one else is around'".

19. The appellant gave evidence that, after he and his wife had separated, the complainant:

"was always very excited to see me when we met, and she'd run up and jump up to give me a hug which was quite normal but there were occasions where she'd be squeezing with her legs and rubbing her privates into my hip.  Now, the first couple of times I thought nothing of it, thought it was exciting, but after – excitable for her, but after a couple of times I thought, 'No, [T], you shouldn't be doing this', and I quizzed her.  I said, 'Look, you don't do that.  If you need to hug, you hug with your hands, you don't hug with your privates.'" 

This was said to have occurred six months after the appellant and the complainant's mother had separated in 2001.

20. The appellant said that the statement about which he had told Constable Skerke that "[t]his will be our secret" was meant to ensure that the complainant did not tell the complainant's mother that "[she] was touching [herself] and dad told [her] not to", because "World War III would have broke out".

The appeal

21. A principal theme of the appellant's argument was that the complainant's mother pressured her to fabricate allegations of sexual misconduct on the appellant's part.

22. What was to be made of the reliability of the evidence of the complainant and her mother, having regard to the possible motive for pressure by the mother on the complainant to fabricate charges against the appellant, was a question for the jury. It may well be that the jury found this point unconvincing because there was no evident reason why the mother would have pressed the complainant to fabricate such a case. There was no advantage to be gained by the mother in terms of custody or access arrangements from any such fabrication. The children were residing with the appellant during the relevant period with their mother's consent. There was no reason in the history of the relationship between the complainant's parents to think that there would be a contest for the custody of the children once their mother was "back on her feet". It is also difficult to see how the mother's procuring the complainant to make false allegations of sexual abuse against her father could have enured to the mother's financial advantage in this case. In this regard, there was no evidence of any financial demand made by the mother upon the appellant which could be thought to have been in any way linked with the complainant's allegations against the appellant. Finally, whether or not the jury considered that the complainant's mother pressed the complainant unduly with questioning about the appellant's behaviour, the jury were nevertheless entitled to accept the complainant's insistence that the matters of which she complained did actually happen.

23. The appellant also argued that the complainant's version of events was vague and inconsistent. That there is force in this argument is apparent from the passages from the complainant's evidence which I have set out above; but these are matters which were readily apparent to the jury. At trial, the appellant's counsel addressed the jury in relation to the inconsistencies of the evidence of the complainant in relation to the touching of the appellant's penis, the description of the "horsey thing", and the number of times on which the complainant said these incidents occurred. The learned trial judge, in her directions to the jury, also adverted to these criticisms of the complainant's evidence.

24. Notwithstanding these criticisms, it was open to the jury to regard the core of the complainant's evidence as reliable, especially having regard to the prompt complaint to her mother and the police.

25. Importantly, the complainant's evidence of what can only have been ejaculation by the appellant in her presence, an event outside the normal range of experience of a seven year old girl, may well have been thought by the jury to provide strong confirmation of the complainant's essential reliability. The jury may also have regarded the complainant's evidence about "the horsey thing" as having the ring of truth.

26. As to the appellant's evidence, the jury were entitled to treat his evidence as establishing that there was an unusual degree of intimate contact between the appellant and the complainant. The jury were also entitled to regard as entirely unconvincing the appellant's attempt to put an innocent explanation on his admitted instructing to the complainant to keep what happened of a sexual nature while they were in bed together their "secret". The explanations given in evidence and in the telephone conversation with Constable Skerke were quite lame. It is hardly surprising that the jury evidently rejected the appellant's explanations.

27. The appellant argued on appeal that his legal representative at trial "refused to question the complainant on matters of wee squirting out even with the appellant insisting them [sic] to do so". This complaint about the competence of the appellant's counsel is outside the scope of the appellant's ground of appeal; but, in any event, the appellant's counsel could reasonably have decided to refrain from pressing the complainant about this aspect of her evidence. To emphasise this aspect of her evidence was simply to emphasise one of the strongest points in favour of the complainants' credibility.

28. Finally, the appellant complained that the jury may have placed undue weight on the evidence admitted under s 93A of the Evidence Act and the evidence of the telephone conversation between the appellant and Constable Skerke.  The jury asked to have the relevant recordings played several times.  The pre-recorded evidence of the complainant, including her cross-examination, was also replayed for the jury.  The appellant now complains of a lack of balance in the presentation to the jury of the case for each party.  But no such complaint or objection was made at the trial.  And, as is apparent from the appellant's earlier arguments on appeal, a major point in his case was the vagueness and alleged inconsistency of the complainant's version of events.  The jury's close study of the complainant's evidence, balanced as it was by reference to her cross-examination, would tend to suggest that the jury gave conscientious consideration to the appellant's arguments relating to the vagueness and variations in the complainant's evidence.  One cannot conclude that this aspect of the trial process was apt in any way to have adversely affected the appellant's prospects of an acquittal.

Sentence

29. The appellant did not seek to support his application for leave to appeal against sentence by argument. It is, therefore, possible to deal briefly with this aspect of the case.

30. The appellant's victim was his seven year old daughter. The breach of trust involved in his offending conduct was egregious. It appears that the appellant was himself the victim of physical and sexual abuse as a child. While one may sympathise with him in this regard, that sympathy cannot alter the need for a sentence which reflects the community's disapproval of the appellant's treatment of his child. The sentence which was imposed was, in my respectful opinion, distinctly moderate, bearing in mind that it was imposed after a trial and in circumstances where the appellant's lack of remorse was evident.^[1]

Conclusion and orders

31. On the whole of the evidence before the jury, it was reasonably open to them to conclude beyond reasonable doubt that the appellant was guilty.

32. The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be refused.

33. MULLINS J:  I agree with Keane JA.