R v AAA[2007] QCA 92

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The appeal against conviction should be dismissed.

[2] The learned trial judge informed the jury of the difficulties consequential upon the delay in the making of the complaint: Longman v The Queen.[1]  His Honour also warned the jury that, because of this type of delay, it can be dangerous to convict on a complainant's testimony alone unless, after scrutinising it with great care and considering all the circumstances relevant to its evaluation and paying heed to the risks consequential upon the delay, they were satisfied beyond reasonable doubt of its truth and accuracy on each charge. 

[3] Jerrard JA has set out the relevant evidence.  A review of that evidence demonstrates that the jury were entitled to reject the appellant's exculpatory evidence and to accept the complainant's evidence beyond reasonable doubt on counts 1-4, 6, 7, 9, 10 and the alternative verdict of indecent dealing on count 11: MFA v The Queen.[2]  The verdicts of acquittal on the remaining counts were not inconsistent with those guilty verdicts.  I agree with Jerrard JA's reasons.

[4]  JERRARD JA:  On 31 October 2006 Mr AAA was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child under 16 years, of six counts of unlawful and indecent treatment of a child under 12, and of two counts of rape.  He was sentenced to seven years imprisonment for the offence of maintaining and the two counts of rape, and three years imprisonment on the other counts.  The learned judge set a parole eligibility date of 30 April 2010.  Mr AAA has appealed against his convictions, contending firstly those were both inconsistent with his acquittals on two other counts of allegedly unlawfully and indecently dealing with the same complainant when she was a child under the age of 12 years, and an acquittal on a count of raping her; and secondly that in any event the verdicts of conviction were unreasonable.  The oral argument on appeal focussed solely on the second ground.

[5] Count 1 charged maintaining a sexual relationship between 1 January 1998 and 31 December 2001.  Mr AAA was convicted of that count.  Counts 2 and 3 charged offences of indecent dealings occurring in calendar year 1998, and Mr AAA was convicted of both of those.  Counts 4, 5, and 6 charged offences of indecent dealing committed in calendar year 1999, and Mr AAA was convicted of counts 4 and 6, but found not guilty of count 5.  Counts 7 and 8 charged offences of indecent dealing occurring in calendar year 2000, and Mr AAA was convicted of count 7 and acquitted of count 8.  Counts 9, 10, and 11 charged offences of rape committed in calendar year 2001, all three offences allegedly occurring on the one occasion; Mr AAA was convicted of the charges of rape on counts 9 and 10, which were respectively of allegations of digital and penile rape, and acquitted on the count of rape in count 11.  That was an allegation of digital rape, and the jury convicted him of an offence of unlawful and indecent treatment with a child under 12, based on the same alleged incident.

[6] Mr AAA was the complainant child’s stepfather.  She was born on 20 February 1991, and was seven at the time of the first offence of unlawful and indecent dealing described by her in her evidence (count 2).  Mr AAA gave evidence denying any untoward conduct with her, and his evidence suggested that complaints were made against him only after he voiced his disapproval of what, to him, was an obviously sexual relationship between the then 13 year old complainant and a then 17 year old boy.

[7] The complainant’s evidence-in-chief at the trial was given by way of a written statement made to police dated 1 December 2004, admitted under s 93A of the Evidence Act 1977 (Qld), and video recorded evidence of cross-examination of her on that evidence-in-chief, recorded on 21 June 2006, was admitted at the trial under Division 4A of that Act.  Mr AAA’s counsel makes no complaint about those matters, which are the standard procedure for presenting the evidence of children to juries in criminal trials hearing charges of sexual abuse, but he argues that the evidence was not sufficient to support the convictions, as also demonstrated by the acquittals.

[8] The complainant described the first incident which she recalled occurring as happening near the end of grade 2 in 1998, when she was seven.  She had been playing with other children, after school, and had gone into the house and seen Mr AAA at a computer in the office.  He was wearing a pair of board shorts and no top, and they talked.  He invited her to hop onto his lap, and when she did, he opened her shorts and put his hand inside her pants.  Her evidence in the written statement was that he rubbed her “private part”[3] and then “pushed one of his fingers inside me.”; when cross-examined in June 2006 she described that incident in similar terms to those in the statement, and said he had rubbed around the “outside” of her vagina, but she could not really remember anything else happening.[4]

[9] Nothing in the evidence-in-chief or the cross-examination made that account at all improbable, and she gave a consistent description.  The same applies to count 3, the second charge alleging indecent dealing.  Her 2004 statement, and oral cross-examination in June 2006, described count 3 as a second occasion of abuse in 1998 when she was still seven, again on a school day, and again Mr AAA was using the computer.  Again she sat on his knee – at his invitation; she was wearing her school uniform – and again he rubbed with his fingers on what she described as her private parts.  Both her evidence-in-chief and cross-examination described some small degree of penetration, and also that she felt as if there was something hard rubbing against the back of her bottom.  The appellant’s counsel does not suggest that there was any inconsistency between the accounts given on the two occasions about that alleged incident, or any obvious improbability about it.

[10] Count 4 was the first offence alleged to occur in 1999.  The complainant said it was when her mother was working as a volunteer for Lifeline, when she was about to turn eight, at the beginning of 1999.  She said she was playing a game of hide and seek with Mr AAA, and after it ended he kissed her all over her body, and then took off her shorts, leaving on her underclothes.  He then took off his shorts and exposed his penis.  He invited her to touch it, and over her objection placed her hand on it for a moment.  That was her description in the s 93A statement, and she gave a generally consistent account in cross-examination, although that did not include a description of her touching the penis. 

[11] The offence charged as count 5 appears to have been based on her description, in the s 93A statement, of his having persuaded her to sleep that night in his bed, and her recollection that he cuddled her all night and that she felt something hard against her bottom for some time.  She recalled waking up in her own bed, but did not know how she got there.  That account hardly established the commission of an offence of indecent dealing, and in her cross-examination she said that Mr AAA:

“Wanted me to stay the night in his bed but I’ve completely gone blank about what happened.”[5] 

It follows that she gave no evidence about the commission of any offence which could be count 5, and the jury were quite correct in returning a verdict of not guilty on that count. That verdict does not show any inconsistency with the convictions on counts 2, 3, and 4, about which offences the complainant had given consistent evidence describing conduct which, if it occurred, constituted the offences charged.

[12] Count 6, also allegedly happening in 1999 when the complainant was eight, was said by her to have happened soon after she had got a trampoline for her birthday, and when her mother was working at the Endeavour Foundation.  It happened in the evening at around 5.30 pm, and she was wearing her school uniform.  Mr AAA came into the lounge and pulled up her dress, knelt in front of her, and then licked both her vulva and in her vagina.  Her statement described that as feeling uncomfortable and strange, and she gave a consistent description in her cross-examination.  That conviction is consistent with the convictions on counts 2, 3, and 4, and not inconsistent with the acquittal on count 5.

[13] Count 7, on which there was a conviction, was said by her to have occurred in the year 2000, when she was nine, and just before Melbourne Cup day.  She was at home with Mr AAA, wearing a sports school uniform, and he asked if she wanted a massage.  She said “no”, but he persuaded her to take off her top, and then to roll over and face him.  He massaged her shoulders and chest area with oil, and then her groin; he then pushed his finger into “my private parts” and “moved his finger around.”[6]  In her cross-examination she gave a similar description, saying that it felt awkward, and that:

“It wasn’t fully in, but it was – it was more in than it had ever, like, been before, and that was – felt really weird.”[7] 

There was nothing inherently improbable in that account, which was consistently given, and the conviction was consistent with the other convictions described and with the acquittal on count 5.

[14] There was an acquittal on count 8.  The complainant’s statement said that the incident occurred when she was nine, in year 2000, and her mother had gone to a neighbour’s house to do what the complainant called Bowen Therapy.  She was alone with Mr AAA, and she was doing her homework in the office.  He entered, and when she stood up he seized her around the waist and swung her around so that she was facing him.  She “felt his hard penis against my tummy” and then her mother came home.[8]  That was apparently the basis of the charge in count 8, and that description was inadequate to prove an offence of indecently dealing with her as a child.  She gave a similar description of the occasion in cross-examination, except that she did not say she felt his penis hard against her tummy, and said then that she could not remember his actually touching her anywhere inappropriately on that occasion.[9]  An acquittal was the only appropriate outcome on that count, and was consistent with the acquittal on count 5, and with the described convictions.

[15] Counts 9, 10, and 11 all assertedly occurred on the one occasion, in 2001, on a weekend when the complainant was awoken from her sleep by Mr AAA.  He removed the sheets and began kissing her body all over, and then touching her groin; he then pushed his finger inside her vagina (count 9).  She said he also squeezed her breast while doing that, then removed his shorts, and she saw his erect penis.  She felt him insert that into her vagina (count 10), and said that it felt very uncomfortable and hurt a lot.  He moved up and down and then removed his penis, and “began fingering my vagina again for a short time.”  (Count 11).  In her cross-examination she described the digital penetration which was count 9, and penile penetration, count 10 adding that:

“It wasn’t like fully penetration type thing because he didn’t go all the way in or it didn’t feel like that, except he definitely, like, got off.” 

She also said:

“Yeah, it went in but it wasn’t like completely like”[10]; and

“He stopped and kind of come on the sheets”[11],

agreeing that she meant he ejaculated onto the bed, and that was all she said about that occasion.  She did not describe any further act of digital penetration in that cross-examination.

[16] Her accounts of counts 9 and 10 were therefore consistent, but she gave no evidence about the commission of the offence alleged in count 11, in her cross-examination.  Her s 93A statement did not specifically describe digital penetration, and the count of rape was presumably based on an assumption that penetration was implied in that description.  However, the jury acquitted of the offence of rape.  I consider there was sufficient basis in the evidence for the alternative count on which they convicted, although a conviction depended only on the s 93A statement. 

[17] Mr P Cullinane, counsel for the appellant, made the entirely valid point that the medical evidence led by the prosecution did not by any means unequivocally support its case.  The complainant had been examined on 1 December 2004, and the doctor’s opinion was that she had a normal mature female genitalia with an intact hymen, with no evidence of previous trauma, or of a tear or scars or any deficit in the hymen.  That doctor said that that finding was consistent with digital penetration, and added that penile penetration of a pre-pubescent female, if there was full vaginal penetration, would often cause trauma to the genital area, but that sometimes over subsequent years “they” could heal very well to the point where it was not possible to discern evidence of that prior trauma.  The thrust of the doctor’s evidence in re-examination was that the absence of evidence of any injury, and the presence of an intact fleshy hymen, was consistent with there not having been what the doctor described as “full penetrative sex”[12].  That evidence in re-examination diminishes the benefit for Mr AAA of the absence of any injury or indicia of penetration, because of the complainant’s evidence in cross-examination suggesting less than complete penetration.

[18] Mr Cullinane relied on five matters in combination, in support of his submission that each verdict for a conviction could not be supported by the evidence.  The first was the delay by the complainant before she told anyone about the abuse she alleged.  The evidence established that that first happened in late October 2004, when she told her 17 year old male friend that her father had been raping her since she was in year 2.  Then, on his evidence, some two or three weeks afterwards, he and the complainant had a second conversation in which she said words to the effect:

“It’s happened again.” 

His evidence at the committal hearing made it quite clear that he understood she was telling him then that she had been raped again, between the occasion on which she first made disclosures to him (two or three weeks earlier) and the occasion when she raised the topic again.  At the trial he somewhat reluctantly accepted that he had given that evidence at the committal hearing, and that he had no reason to disagree now with its truthfulness. 

[19] Mr Cullinane, who had appeared at the committal hearing, had quite properly cross-examined the complainant about that topic in the pre-recorded evidence.  She denied both that Mr AAA had done anything to her, or had raped her, between the date when she first spoke to the 17 year old friend in late October and when she spoke to him a second time, in November.  She also denied having said to that friend that she had been raped “again”.  Her evidence was:

“Yeah.  I didn’t say ‘again’, ‘cause he’s only done it once”.[13]

The other evidence established that the second conversation with the 17 year old was on or about 28 November 2004.  Mr Cullinane’s submission included that if the male friend’s evidence was accurate, the absence of any evidence of penetration was much more significant, because the complainant was examined on 1 December 2004, at most about three weeks of the occasion of the last alleged rape.  The doctor had agreed in cross-examination that, if there had been penile penetration in the weeks prior to the examination, then the doctor would expect to find some evidence of it, and the doctor did not. 

[20]  That submission depended for its force on the jury accepting, or being unable to put aside, the young man’s evidence of the complaint.  The complainant clearly disputed that she either had been recently abused, as at November 2004, or that she had said she had.  That conflict in evidence was a matter for the jury to resolve.  Mr Cullinane also relied on the evidence that the complainant’s mother had not observed any indication that there were any problems with the complainant until told of the allegations in late November 2004, but that evidence adds very little.  Finally, Mr Cullinane emphasised the difference between the descriptions of count 10 in the s 93A statement, and in the cross-examination.  In the former the complainant appeared to describe complete penetration, saying:

“It hurt a lot, it felt very uncomfortable”,

but she modified that description in cross-examination.  That was a matter for the jury to consider, as were all the other matters on which he relied, and the learned judge gave the jurors appropriate warnings about convicting on the basis of the complainant’s evidence. The points Mr Cullinane raised went to the complainant’s credit, but it was open to the jury to accept her evidence, as they did, and to be satisfied beyond reasonable doubt that Mr AAA was guilty of the offences of which he was convicted. 

[21] There is no complaint about the directions the learned judge gave to the jury, which identified to them the matters relied on by the prosecution in each count, and the defence.  The appellant has not established that there is any inconsistency between the verdicts, and the different verdicts are not an affront to logic and commonsense.  They do not imply that the jurors must necessarily have rejected evidence given by the complainant, or that the jurors must have rejected (in the counts on which they acquitted) evidence on which they necessarily relied, in the counts on which they convicted.

[22] Accordingly I would dismiss the appeal against conviction on all counts.

[23] MACKENZIE J:  There were two issues in this appeal.  One was that the verdicts of guilty were inconsistent with verdicts of acquittal on other counts.  The appellant’s counsel did not enlarge orally on the written submissions in relation to this issue.  I agree with Jerrard JA’s analysis of the verdicts and with his conclusion that the verdicts are not inconsistent, on the evidence as it turned out.  The jury could, without affronting commonsense and logic, have reached the verdicts delivered (MacKenzie v The Queen (1996) 190 CLR 348). 

[24]  The second issue was whether the verdicts of guilty were unreasonable.  No complaint was made about the terms of the summing up which contains directions appropriate to this kind of case.  I have read the record in detail and agree with Jerrard JA’s reasons for concluding that the verdicts were not unreasonable. 

[25]  I agree that the appeals against conviction must be dismissed.