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R v Kovacs QCA 441
SUPREME COURT OF QUEENSLAND
Court of Appeal
Appeal against Conviction & Sentence
14 December 2007
31 October 2007
McMurdo P, Muir JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
Appeal against conviction dismissed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of indecent assault and two counts of rape – where the prosecution case relied heavily on evidence given by the complainant – where an interpreter was used for the complainant's evidence – where the complainant's evidence contained inconsistencies – where the complainant had sworn written retractions of her evidence against the appellant – where the judge warned the jury about the danger of convicting on the complainant's evidence without careful scrutiny – whether a conviction was open to the jury
Criminal Code 1899 (Qld), s 668E(1)
MFA v The Queen (2002) 213 CLR 606, applied
J R Hunter for the appellant
M J Copley for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
 McMURDO P:The appellant, Mr Kovacs, was convicted in the District Court at Cairns on 23 February 2007 after an eight day trial of one count of indecent assault and two counts of rape. The offences were said to have occurred in October and November 1997. He appeals against his convictions solely on the ground that the guilty verdicts cannot be supported having regard to the evidence and are unreasonable. A consideration of this ground of appeal requires a review of all relevant evidence.
 The complainant, a citizen of the Philippines, was in 1997 a married woman aged about 31 and the mother of five children. On 20 September 1997 she travelled alone from the Philippines to Cairns and then to Weipa and Napranum where her aunt Melita lived with her husband, the appellant Zoltan John Kovacs, their newborn baby and Melita's daughter from an earlier relationship. The appellant drove a school bus. Melita worked at a local petrol station. The daughter attended the local school. The complainant stayed at the home of her aunt and the appellant and helped care for the baby when Melita was at work.
 The prosecution case largely turned on the complainant's evidence given through an interpreter. It included the following. One evening at about 6.00pm about two days after she arrived the appellant asked her for a massage. His wife and stepdaughter were outside. She massaged him in the stepdaughter's bedroom. When she was massaging his arm he squeezed her left breast. She swore at him in Tagalog and in English said, "don't touch me". Her tone of voice was really angry and she pushed his hand away on three occasions. When she was massaging his thighs he grabbed her hand and put it on his penis on top of his clothes. This incident was said to constitute count 1. She again swore at him in Tagalog and tried to push his hands away. She did not tell anybody about what he had done.
 One morning about two weeks later at about 9.00am, she was cleaning the spare bedroom. She was home alone with the baby. The appellant returned and rang the doorbell. She opened the door and returned to her cleaning. She was surprised when he followed her. He pushed her onto the bed by the shoulders. She tried to push him away but he was too big. She told him, "don't touch me". She was angry and she spoke loudly in English. They struggled on the bed. He was on top of her. She continued to try to push him away. She was wearing a bra and panties, cycling shorts and a t-shirt. She said to him in English that he was like an animal. He punched her thigh so hard she could not move. Her body was "so hurt" that she did not move anymore. He removed her shorts and panties. He lay on top of her. He inserted his penis into her vagina for a short time before withdrawing and ejaculating onto the bed. This incident was said to constitute count 2. He then went to the toilet. She did not want him to have sex with her. Afterwards she pulled up her panties and cried. Again, she made no complaint to anyone about his conduct.
 From that time, she took care not to spend time with the appellant. She kept a knife near her as she moved about the house.
 One Sunday about a week later, the appellant said he was taking her shopping for clothes. She told her auntie she did not want to go because she was tired. The appellant became angry and so she went with him to town in the bus. He took her to the secondhand shops and bought her shorts and t-shirts. On the way back she was surprised that they went to an area which she did not know. There were trees, water like an ocean but no people. It was not the usual way home. He stopped the bus near the water and came towards her. He kissed her on the neck. She pushed him away. She said in English, "don't touch me". He kept trying to kiss her. She threatened to tell her auntie. He told her, "don't say anything or I will kill you". He pulled her from the bus seat onto the aisle. They struggled on the aisle floor. He punched her hard on the stomach. She could not do anything to resist him. He took off her shorts and panties. He was wearing shorts with an elastic waistband. He took off his shorts and was naked. He put his penis into her vagina as he lay on top of her. He had sex with her for a short time and ejaculated before withdrawing. She was crying and did not want to have sex with him. They dressed and returned home in the bus. This incident was relied on as establishing count 3.
 Two days later she complained to the appellant's adult daughter, Eva. She said, "please help me". Eva asked her why. She responded, "your father raped me". Eva asked her if it was true and she responded affirmatively. Eva asked her how many times. She responded, "two times". The complainant cried and she and Eva both cried and hugged each other. Eva telephoned the complainant's sister who lived near Bundaberg. She and Eva then returned to the appellant's home where she stayed for about another week. Eva obtained an airline ticket from Weipa to Cairns so that the complainant could join her sister. Eva and her partner drove her to the airport. She left a letter for her auntie in the spare room, the room where the appellant raped her in the count 2 incident. She wrote in the letter that she had run away because the appellant had raped her. She stayed with her sister in Bundaberg for a few weeks before she returned to the Philippines on 12 December 1997.
 The prosecutor showed her an affidavit (ex 1) apparently sworn by her in the Philippines on 3 November 2003 in these terms:
"… I went to Australia on September 20, 1997, in order to visit my elder sister Edna Javier-Hettirington who lives in Livesly, Australia, and who was at that time very sick and suspected to have cancer;
That my immediate and short trip to Australia was made possible with the help of my aunt Melita Javier-Kovacs who spent for my fare and in whose house I stayed for at least one and half (1½) months before proceeding to my sick sister in Livesly, Australia;
That my aunt Melita and her husband John Kovacs treated me very well and with proper respect accorded to a close relative during my brief stay in their house at Napranun, Weipa, Australia;
That I came back to the Philippines on December 20, 1997;
That I executed this affidavit for whatever legal intent and purpose this may serve the Spouses John and Melita Kovacs in Australia.
IN WITNESS WHEREOF, I have hereunto caused my hand, this 3rd day of November, 2003, in San Mateo, Rizal, Philippines." (errors as in the original)
 She agreed she signed ex 1 about six years after she had returned to the Philippines from Australia. She understood that its purpose was to enable her aunt at Weipa to secure the services of another domestic assistant from the Philippines. She was visited by Australian police in November 2003 and she gave them a statement about these incidents which she subsequently signed.
 The appellant emphasised the following matters which emerged in the complainant's cross-examination which took place over five days. She denied giving massages for people in the Philippines, even for family members as a hobby. During the massage which preceded count 1, she said that the appellant had closed the bedroom door and locked it. She did not mention this before because no-one asked her. She was not worried when the appellant did this because she did not know what was about to happen. It was only her second day in the house. Her auntie had told her to always lock the doors because there were "black people" around and it was scary because they might come inside the house.
 In her statement to police about count 1, she did not state that the appellant forced her hand onto his penis but instead said that during the course of the massage he lifted his legs so that she could see his penis through his shorts because he was not wearing underwear.
 She agreed that at the committal hearing she made no mention of the appellant touching her on the breast preceding the count 1 incident. She said that she kept a knife by her bed at night and carried it in her pocket if she had one. If she did not have a pocket she left the knife next to her. She did not carry the knife if she was in the house during the day. She did not know if the appellant knew she was carrying a knife. She could not remember whether she had shown it to him. She knew she had the knife when she went to bed. She agreed it would be wrong to say she carried the knife with her all the time. By contrast, her statement to police recorded: "I always carried a knife with me, even to bed. [The appellant] knew I had this knife as I had showed it to him."
 She denied telling her young niece, Jennifer Baldonasa, on her return to the Philippines that her statement that the appellant had raped her was not true. She denied telling Jennifer that the real reason she left Weipa was because it was too small and she wanted to visit her sister in Bundaberg and get work there. She denied telling Jennifer she made up the story about being raped so that her Aunt Melita would not bother to look for her when she left. She agreed she signed ex 1 to help the appellant and her Aunt Melita find another domestic helper.
 She agreed that on 21 July 2006 she signed a further affidavit in the Philippines (ex 6) in which she stated how well she was treated by the appellant and her aunt at Weipa and how his daughter Eva had poisoned her mind against him. The affidavit concluded:
"That sometime on October 16, 2004, I was summoned in an Australian Court to testify in a case wherein it was alleged that my said aunt, MELITA JAVIER KOVACS, brought me to Weipa, Queensland, Australia, to be employed in her household as a domestic helper and which allegations were all untrue and that the matter was not clearly explained to me for the simple reason that it was not translated to me in my native tongue which is the Filipina language and in the same manner that the interview that was taken from me by the police and Interpol authorities from Australia sometime on October 12, 2005, for the alleged rape that was allegedly committed against my person by JOHN KOVACZ were all untrue and inaccurate considering prior to my leaving my aunt MELITA JAVIER KOVACZ resident in Weipa, Australia, I was instructed by EVA FABIAN that she is planning to get even with her father, JOHN KOVACZ and my aunt MELITA JAVIER KOVACZ and that she was on the execution stage of her said plan and that she wanted me to play a vital role in it and in return she will give me a handsome reward; that during that time when the hearing and presentation of the evidence in that rape case fabricated by EVA FABIAN against her father, JOHN KOVACZ with me as her pawn, the questions profounded to me at that time were all in the English language which I am not very familiar and conversant with and that the same was not properly translated in the Filipina language which is the only language that I know and understand; that I am no longer interested in the prosecution of the said rape case against JOHN KOVACZ for the simple reason that it was merely fabricated by her daughter, EVA FABIAN, in order to get back at her father and my aunt, MELITA JAVIER KOVACZ." (errors as in the original)
 She signed ex 6 because she was concerned about her Aunt Melita facing charges of slavery and because her Auntie Amor asked her to sign it. She felt sorry for her Auntie Melita. They begged her to sign it. They said if Auntie Melly went to prison they would "just kill themselves".
 She agreed she signed a third "affidavit of desistance" dated 2 February 2007 (ex 10) a few weeks before the trial. It included:
"That, the undersigned affiant is the principal complaining witness against a certain JOHN KOVACZ, an Australian Citizen, for the crime of RAPE allegedly committed by the latter against the undersigned complainant/affiant sometime in the second half of September, 1997, during the pendency of my stay in their household in Weipa, Australia, he being the husband of my aunt, MELITA JAVIER KOVACZ;
That the undersigned complainant/affiant is no longer interested in prosecuting the said JOHN KOVACZ for the alleged crime of RAPE now pending in a Court of justice in Australia;
That no person coerced or forced the undersigned affiant in executing the foregoing, AFFIDAVIT OF DESISTANCE and affiant was not given any money nor promise of reward or any form of consideration to execute the same and that I executing the same freely and voluntarily out of my own free will and volition;
That I am execution the foregoing Affidavit of Desistance to attest to the truth and veracity of all the foregoing facts and to establish the fact that I am no longer interested in prosecuting JOHN KOVACZ and by virtue of the foregoing most respectfully requests the Honorable Court in Australia to DISMISS the aforementioned Criminal Case for RAPE against the said JOHN KOVACZ for all the reasons aforetated and for all other legal intents and purposes wherein it may serve." (errors as in the original)
 The complainant said she signed ex 10 because she was concerned that her Aunt Melita would kill herself and her children. Her aunties were crying. She felt confused and sorry for them because she also had children. She denied making a false complaint to get criminal compensation. She denied asking for 200,000 pesos (about $A5,000) in return for signing the documents. She said:
"No, they offered me. And then they get me a bank book, I told the Embassy about that and I was told, 'That's okay'. I was told, 'Whatever they give you, just take it but you will go, you will fly.'
All right. Well, my question is this: That you asked for it from Aunty Amor; you say, 'No?-- No, they were the ones who was trying to give it me. They offered me so I would back out.
So your side of the story is your Aunty Amor offered you 200,000 pesos and that was to be paid to you in one sum into a bank account?-- No, a hundred thousand was already in the bank book. If I don't attend on the 14th - if I don't turn up for the case, then they will put in another 100,000 pesos.
MRS PEARSON: You received 100,000 pesos into your bank account, didn't you?-- Yes, but that money - but that money is with Eden. That's my sister. I didn't have it, I don't have it.
And that money was paid into a bank account in your name on the 29th of January 2007. There was 500 pesos paid on the 29th of January and 95,500 pesos on the 31st of January 2007, wasn't there?-- (Witness) Yes."
 She agreed she signed yet another document in Tagalog entitled "Proof" (ex 12). It was translated during the trial hearing and included:
"This is to prove that I received from Amor Javier the first payment of 100,000 pesos money in the Philippines, that the whole amount that I will ask from Amor Javier would be 200,000 pesos, that's Philippine currency. This is in exchange of witnessing and backing out from the case of rape against John Kovacs which is - which is, at the moment is being heard and it's in the Court in Australia. And it is in this - and by this, I promise that I will - that I will follow the agreement with Amor Javier that I will no longer go to Australia to testify against John Kovacs and to withdraw the case" (not in English) "in exchange for the money that will be given to me by a Amor Javier, San Mateo, Rizal, February 2nd, 2007, signed Aida Deswonco Vicente."
 The appellant's daughter, Eva, gave evidence. She was born in Hungary where she was raised by her mother and step-father. She visited the appellant, her biological father, in Weipa for a few months when she was about 16 years old. She returned to Hungary but finally emigrated to Australia in 1991. She lived with her father in Weipa for about 12 years and ultimately moved out. She met the complainant when the complainant came to stay with her father. One day the complainant came to her and her partner, Jason, on their front verandah. The complainant did not speak English very well. She said the word "sex" and began to cry. She said, "Help me." The complainant sat down. Eva calmed her down. She could not remember the complainant's exact words. She was very upset and asked them to help her because she was going to hang herself. They told her she could go to the police but she was frightened and did not want to do this. Eva and Jason agreed to help her purchase a ticket to fly from Weipa to Cairns. Jason picked her up and drove her to the airport within a week or two of the complaint. In cross-examination she denied helping the complainant make up the story of rape so that she and the complainant could get money from the appellant.
 Defence counsel made the following admission about evidence which would otherwise have been given by Jason Salam who, it seems, was not available at trial:
"in 1997 he assisted [the complainant] by collecting her and [the appellant's] son … from their house at Napranum. He dropped [the baby] off at a day care person and took [the complainant] to the airport. When he got her to the airport she gave him a letter for Melita. He went back and gave the letter to Melita, and she became very upset when she read it and started pushing him. He then left."
 The appellant did not give but called the following evidence. The appellant's wife, Melita Kovacs, gave evidence that Eva and the appellant had had a big argument at around the time of the complainant's visit from the Philippines. On the day that the complainant left their home, nothing was left on any of the beds in the house. She was however handed a letter by Jason Salam. The letter was from the complainant. She wrote that she had gone to Hervey Bay to see her sister and that the appellant had touched her and raped her. Mrs Kovacs became upset. She asked Jason why the complainant had not come to see her before she left. She confronted her husband when he came home. They went together to the police and showed them the letter to see if they could make a complaint against the complainant.
 In cross-examination she agreed that in the letter the complainant had said that if she did not get her period that month she would be pregnant. She understood that the letter was an allegation about sexual intercourse, not just touching. She agreed that the complainant massaged the appellant on one occasion whilst she was staying with them when Mrs Kovacs was home. Mrs Kovacs denied that any shops were open in Weipa on Sundays. She agreed that sometimes the complainant and the appellant had outings together. Mrs Kovacs obtained employment soon after the complainant came to stay. She worked from 7.30am until 3.00pm and went home to feed the baby at 10.00am. She was not at the house at 9.00am.
 Ieynaldo De Guia gave evidence by telephone that he was an interpreter and the husband of a Philippines' lawyer. He prepared the affidavit (ex 1) in English after a conference with the complainant. He translated it into Tagalog before she signed it. He went through a similar procedure when preparing ex 6 and ex 10. He also prepared the "proof" document in Tagalog (ex 12) which the complainant signed. In cross-examination he said the words in all these documents were the complainant's exact words translated by him from the Tagalog dialect for ex 1, ex 6 and ex 10. He did not use his own "flowery legalese" in the documents but translated her own words. He did not charge the complainant any fee for his services but did all this work "pro bono". His wife's firm gave free legal advice to poor people. He prepared the documents (ex 1, ex 6 and ex 10) on the verbal request of the complainant. Sometimes he discussed the documents for four to five hours with the complainant.
 Mrs Kovacs' sister, Amor Javier, gave evidence by telephone link-up through an interpreter. In about 2000 the complainant told her:
"… that nothing has really happened.
Can you remember the words that [the complainant] used, please?--'There is - there is no rape.'
Can you remember anything else that was said about the rape during that talk?-- Apart from the rape, she said they treated her well."
 The complainant asked for money to withdraw her complaints against Mr Kovacs. Her sister-in-law, Teodora, paid her 100,000 pesos which she relayed to the complainant in 2007. It was not enough for her. She wanted another 100,000 pesos. She had not yet paid the second instalment to the complainant.
 Teodora Javier also gave evidence through an interpreter by telephone link. She is the sister-in-law of Amor Javier. In 2003 she spoke with the complainant about her visit to Australia. The complainant told her "that there was no rape". She asked Teodora and Amor for 200,000 pesos in return for her not coming back to Australia. She said if she had to come to Australia Amor's sibling Melita would be implicated. The complainant said that the 200,000 pesos was nothing compared to what she would get from the Australian government.
 Jennifer Baldonasa, the niece and de facto adopted daughter of Mrs Kovacs, gave evidence. In 1997 she was 11 years old, turning 12. She remembered the complainant returning to the Philippines from a visit to Australia. She had heard that the complainant's return had something to do with an allegation of rape. She was curious. Late one night, she asked the complainant if it was true that she was raped by the appellant. The complainant replied, "No." She asked her why she had said she was raped. She replied, "Oh, it's just all set up so she could go to Hervey Bay … 'cause she wanted to work."
 The judge warned the jury that because of the inconsistencies in the complainant's evidence and the repeated retractions of her allegations against the appellant, it would be dangerous to convict him unless, after scrutinising the complainant's evidence with great care, and bearing in mind these factors, they were satisfied beyond reasonable doubt as to its truth and accuracy.
 The three written retractions of the complainant's allegations against the appellant (ex 1, ex 6 and ex 10) and the "proof" (ex 12) were certainly favourable defence evidence. They required the firm warning given by the learned primary judge. On the other hand, aspects of the complainant's account received some independent support from other evidence. The appellant had the opportunity to commit the offences. Mrs Kovacs agreed that the complainant did give a massage to the appellant on at least one occasion. The complainant and appellant sometimes went on outings together. Although the evidence from Mrs Kovacs was that no Weipa shops were open on Sundays, the jury were not required to accept that evidence as truthful and reliable. They may have considered that the complainant was simply confused as to the day of the week on which count 3 occurred. The complainant made an apparently timely complaint to the appellant's daughter, Eva. She left a note, also making a complaint consistent with an allegation of rape.
 The numerous inconsistencies in the complainant's evidence emphasised by the appellant were not such as to require its rejection by the jury, especially as her statements and evidence were taken and given through an interpreter. The jury saw her cross-examined over five days.
 The jury was entitled to be satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence on each count and to conclude that the appellant took advantage of her isolation from family, limited financial means and limited English to coerce her into non-consensual sexual activity. They were also entitled to conclude that Mrs Kovacs and her extended family in the Philippines likewise took advantage of these factors in coercing her to withdraw her truthful complaints against the appellant in the legalistically expressed documents (ext 1, ex 6 and ex 10) and in the "proof" (ex 12). The language was stilted and did not appear to be in words likely to be used by the complainant. If the jury took this view, which was open to them on the evidence, the many retractions of her complaint did not make her evidence implausible. After carefully reviewing the evidence, I am, in the end, satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt: MFA v The Queen.
 The appeal against conviction should be dismissed.
 MUIR JA: I agree with the reasons of the President and with the order proposed by her Honour.
 DUTNEY J: I agree with the order proposed by the President and with her reasons.
- Published Case Name:
R v Kovacs
- Shortened Case Name:
R v Kovacs
 QCA 441
McMurdo P, Muir JA, Dutney J
14 Dec 2007