SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Chesterman JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

2. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Chesterman JA.  I agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

3. CHESTERMAN JA:  After a three day trial the appellant was, on 24 September 2008, convicted of raping his niece, [the complainant] on an occasion between 25 July 2002 and 24 April 2004, and, on the same occasion, indecently dealing with her.  He was sentenced to eight years imprisonment for the rape and three years for the indecent dealing.  The sentences were concurrent.  333 days which the appellant had spent in custody was declared to be time already served.

4. The complainant was nine or 10 at the time of the offences. She could not provide a precise date for the offences and the indictment charged the time by reference to events the child could remember and which could be dated by other testimony. She was the appellant’s niece, the daughter of his brother with whom and with whose children he lived in a house in a settlement on the outskirts of Gympie.

5. The complainant’s parents separated many years ago. The complainant and her three brothers were cared for by their father. On 26 July 2002 they moved into the house near Gympie which was bought by the complainant’s father and uncle, the appellant, as co-tenants. The house was two-storeyed with three upstairs bedrooms. The complainant slept in one, the appellant in another and her father in the third. Her brothers slept downstairs.

6. After some years the appellant married and moved out of the house. The complainant’s father formed a relationship with a neighbour who moved into the house with her three children. Two of these were daughters, one older and one younger than the complainant. She became friendly with both. In early 2007, after the family, which appears to have become close-knit and supportive, had moved to northern New South Wales, the complainant mentioned to her sisters that the appellant had mistreated her sexually when living at Gympie. The allegations were repeated to the complainant’s father and stepmother, the police were informed and the complainant interviewed at Grafton on 9 March 2007 when she was 13. The interview was tape recorded and the tape tendered and played at the appellant’s trial pursuant to s 93A of the Evidence Act 1977 (Qld).  The complainant’s step-sisters, A and C, to whom the complainant had first spoken about the appellant, were also interviewed and the recordings of their evidence tendered and played at the trial.  Each girl was cross-examined at a pre-trial hearing and the recording of the cross-examination put into evidence.

7. The complainant’s case, in essence, was that the appellant used frequently to come to her bedroom on week nights when her father was asleep. He would wake her up and importune her until she agreed to go with him to his bedroom. He would take her to his bed, make her undress and rub his hand over her. On these occasions he would fondle her vagina. This conduct occurred on five or six occasions. The appellant made the child promise that she would not reveal what had happened. He extracted the promise by telling her that he would “get into big trouble” if she did. The complainant herself said that although she did not fully understand the implications of what the appellant was doing, she understood it was wrong and thought that her father would kill the appellant if he knew of the events. For that reason, also, she kept silent.

8. The two charges arise out of one incident which the complainant could recollect more clearly than others. The appellant came to her room and again pestered her to return with him to his room. She went and the appellant got her to stand inside the door and remove her nightclothes, and underwear, while performing some sort of dance. He then left the room, went to the kitchen, and returned with margarine which he applied to his own penis and the complainant’s vagina. He then took her to bed, lay on top of her and began to engage in intercourse. The complainant experienced pain and pushed the appellant away. That conduct constituted Count 1 on the indictment, rape. Following that the appellant compelled the complainant to hold his penis and masturbate him, though she could not recall if he ejaculated. This conduct is the subject of Count 2, indecent dealing.

9. During their occupation of the house at Gympie the complainant and one of her brothers swapped bedrooms. The complainant went downstairs and the brother slept upstairs. Her complaints about the appellant all occurred when her bedroom was upstairs.

10. The appellant testified in his own defence. He denied the charges and disputed the complainant’s evidence against him.

11. The appellant was represented at his trial but appeared for himself on the appeal and application for leave to appeal against sentence. His written outline of argument contains a substantial number of disparate complaints identified by reference to page and line of the record of proceeding but without organisation or coherence. An examination of the separate complaints establishes two grounds of appeal: that the complainant’s evidence of penetration was too indefinite and uncertain to support a conviction for rape, and that the complainant’s evidence had such inconsistencies and discrepancies that the jury could not reasonably have acted upon it or accepted it.

12. The test to be applied is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty.” M v The Queen (1994) 181 CLR 487 at 493;  MFA v The Queen (2002) 213 CLR 606 at 615.

13. The complainant’s evidence, when interviewed at Grafton on 9 March 2007, was this:

“... when it first ... started happening we had only just moved to Gympie ... and we had only probably just settled in and got to know the neighbours.  And then late at night ... on school nights ... he would come around and wake me up.  He’d keep bugging and bugging me until I came into his room.  And he would make me go in there. 

…

… he’d make me get my clothes off, like, and stuff and then he would start rubbing his hands up my legs and stuff and just touching me and things like that.  [The complainant by means of a diagram provided by police indicated that the appellant rubbed her vagina]

...

He would tell me to, Come into [his] room … he would just keep bugging me going, Come on, come on … and he ended up making me go in there and stuff and he would make me promise not to tell anyone.  He would keep going, You can’t tell anyone ... he kept making me promise and stuff.  And then he goes, Do you know why, and I go, Why, and he goes, ‘Cause if you tell anyone I would ... get in big trouble.  ... I didn’t know what he meant at the time but now I do.”

14. The complainant said she believed she was about 10 when this conduct occurred and that it stopped when she exchanged bedrooms with her brother and slept downstairs. She thought she had slept upstairs for most of the time they lived at Gympie, two or three years. There were five or six occasions, she said, that the appellant came to her room and persuaded her to go back to his. She was asked whether some memories stood out more than others. She said one did. She described it:

“He would make me stand at the door and take off my clothes and stuff ... in a dance kind of way … and then he would make me get into bed. 

... 

He would go out to the kitchen and get this margarine stuff and put it on him and me and then … He would his thing in my thing.  [She identified ‘his thing’ as the appellant’s penis and ‘her thing’ as her vagina.]  …He would put his thing into my thing and it really hurt ...  When it started to hurt I’d push him off”.

15. The complainant later described the appellant rubbing the margarine with his finger on her vagina, inside and out. She knew it was inside because “[she] felt his fingers”. He then “would get on top of me and put this thing in my thing”.

16. After she pushed him off “he’d get me to rub his penis” but she could not remember whether “stuff came out of it” on that occasion. On other occasions when he had got her to masturbate him she observed his penis to be “all fat and ugly and ... white gooey stuff [came out of it]”.

17. When cross-examined on 19 August 2008, about a month before the trial, the complainant gave this evidence:

“Do you remember what happened on that night that you danced and took your clothes off?  Do you remember any other things that happened that night? -- No, not exactly that night.  I only remember like ... the things that happened all the nights basically kind of.

... you said there was one occasion that he got some margarine? --  Yeah.

So, was there only one occasion when he got some margarine? --  I don’t know if it was one or more.  I can’t remember.

...

Did you have your clothes on or off? --  I think I had my shirt on.

... you said that you’d dance and take your clothes off ... .  Are there other things that happened between yourself and [the appellant]?

…

He would grab my hand and put it on his dick and make me rub it.

How many times did that happen? --  A few.”

18. There was then a short adjournment requested by the complainant. It will be necessary to refer to this again. After the resumption the complainant was asked:

“What other sexual things happened between yourself and [the appellant]? --  He would hop on top of me ... .  And he would ... try and put his dick inside me ... .  But when it started to hurt I’d push him off me.

...

Would anything happen before he climbed on top of you? --  He would finger me before he did ... .  After I pushed him off and I said it hurt ... he would say, “That’s okay” and then do other stuff.

…

Do you mean by fingering you, he would put a finger or fingers into your vagina? --  Sometimes one, sometimes two.

If I can turn to getting on top of you and his penis in your vagina.  How many times did that happen, how many different occasions? --  It only happened like twice or – once or twice or 3 times, something like that.

… Was the margarine used on those occasions when he got on top of you? --  I don’t remember.

…

You said that he got on top of you and brought his penis to your vagina.  Did his penis ever enter your vagina? --  I think so.  I don’t quite remember, like it hurt.

...

The time you said that he got you to dance and take your clothes off ... that only happened the once? -- Yeah.

You’re sure that only happened the once? --  Yes.

…

What ... happened after he made you dance and take your clothes off? --  He would ... start touching me.  He would start fingering me and make me give ... him a wristie ... .

What about getting on top of you?  Did that happen on the time that he got you to take your clothes off? --  I don’t quite remember.  I just remember all like different nights.  I don’t remember them singularly like.

…

And given what you say about him getting on top of you, it wasn’t every time that he got on top of you and used his penis in your vagina? --  No, it was only a few times.”

19. The complainant said that she did not tell her father or brothers because the appellant made her “promise not to”. She said also that a reason for not telling her father was that “dad would have killed him.” When asked if she knew that what was going on was wrong she said:

“... not at the time.  I knew it wasn’t like right, but I didn’t really know what it all meant”.

20. The question returned to the use of margarine:

“How many times was the margarine used? --  Only about once or twice, I think.

And on the times that the margarine was used, did he use his fingers on you? --  Yes.

On to your vagina? -  Yes.

And on the time that the margarine was used, did he get on top of you? --  Yes.”

21. In re-examination the complainant was asked about her answer that she “thought” that the appellant had inserted his penis. The questioning continued:

“Can you tell us if the penis stayed outside your vagina or went inside your vagina? --  I think it went inside ‘cause he asked me to put it where the opening thing was.”

22. The complainant first told her step-sister A of the appellant’s conduct and then together they spoke to C, the older sister. C insisted the complainant tell her father and stepmother which she did immediately. A, when interviewed, said that the complainant had told her that the appellant:

“… raped [her] when [she] was young and ... that he made her dance around and ... made her wake up in the middle of the night and come upstairs when she was half asleep.”

A asked the complainant how many times this behaviour occurred.  The answer was “a few, more than five or something.”

23. When cross-examined a few days before the trial she was asked what actual words the complainant had used to describe the appellant’s conduct. Her answer was that the complainant said:

“My uncle [the appellant] raped me”

and that was “all that she said ... at that moment.”

24. The complainant’s older step-sister, C, was also interviewed. According to C the complainant:

“... started crying and then said [the appellant] … has been doing something to [the complainant]. 

...

… she said that, she didn’t really say she got raped, she just said that he put his thing in her thing”.

She understood that the complainant was referring to the appellant’s penis and her own vagina.

25. C thought that the complainant:

“... didn’t really know about all that kind of stuff, so she didn’t really know if it actually happened or not.  And then she said that ... he used to ... come into her room [at] night and come get her.

...

… she said ... he used to ... kiss her and stuff. And ... play with his penis or something or show her how he could like or … erection and all that sort of stuff .

...

… and he used to make her strip… she’d have to take off her clothes and swing ‘em around her head and just strip dance for him.

…

and he used to [the next words are not recorded]

…

She said white stuff came out ... and … after they were done they used to ... sit on the bed and have a smoke. 

...

she said she did that several times

...

and he used to finger her as well.”

26. C recalls the complainant saying that these events occurred when she was about 10 years of age.  A remembers the complainant saying she was seven or eight at the time.

27. One other piece of evidence should be mentioned. It concerns the adjournment during the complainant’s cross-examination. When the hearing resumed counsel for the appellant asked the complainant whether she had spoken to anyone during the break. She said she had spoken to the support person present in the room from which she was testifying. She was asked what she said and replied that she had said:

“I know ... what I’ve got to say.  I’m just ... scared to actually say it.”

Her reluctance was to talk “about sexual things that happened” between her and the appellant.

28. The first question is whether there was evidence of penetration sufficiently definite and coherent to justify a conviction of rape. The doubt comes from the complainant’s cross-examination in which she said that the appellant “tried” to insert his penis and that she “thought” he had achieved penetration. There was, of course, other evidence. The complainant’s account of the incident given at interview is quite explicit and contains a definite statement that there had been penetration and that the occurrence caused her a substantial amount of pain. The interview was evidence on which the jury could act. If they accepted the applicant’s account at interview, the act of penetration was established.

29. As well the evidence, if accepted, established a degree of preparation and determination by the appellant to have intercourse. The lubrication of the complainant and himself, lying on top of the complainant and positioning his penis at the vaginal entrance is all suggestive of a desire for intercourse. The complainant’s description of pain, if accepted, suggests he achieved his desire of at least partial penetration.

30. The learned trial judge directed the jury, fairly and squarely, that they could not convict unless satisfied beyond reasonable doubt that the complainant’s evidence should be accepted. His Honour said:

“Rape requires the prosecution to prove beyond a reasonable doubt that the accused had carnal knowledge of [the complainant].  Carnal knowledge in a colloquial sense means sexual intercourse.  They have to prove that he penetrated her vagina with his penis; they don’t have to prove that there was complete penetration.  Penetration to any extent would be sufficient.  They don’t have to prove that he ejaculated ... .

… finally ... I ... want to say something generally about [the complainant’s] evidence.  [The prosecutor] correctly submits that the prosecution case stands or falls on your assessment of her evidence.  Indeed, her evidence is so important that unless ... you are satisfied that she was truthful and reliable beyond a reasonable doubt you’d have to acquit this man. 

... her evidence is unsupported so, you’ll have to scrutinise it with great care and carefully consider the submissions that have been made, and ultimately you can only convict him if you’re satisfied when [the complainant] says things occurred ... you are satisfied that she’s both truthful and reliable when she says that and you’re satisfied to the standard beyond a reasonable doubt that you could find him guilty.  Otherwise he is entitled to be acquitted.”

31. The jury had before it conflicting testimony. It had the complainant’s evidence of penetration and her evidence of preparation for intercourse and the obvious desire for it. It also had the appellant’s sworn denial. If the jury accepted her evidence, as it plainly did, there was a sufficient factual basis that there had been penetration and therefore rape.

32. The second ground is that the discrepancies between the complainant’s own account of things and what her step-sisters said she recounted to them shows her evidence to be unreliable, or at least that it would be unsafe to act upon it.

33. The first complaint can be dealt with immediately. It was that the admission that the complainant had spoken to her support person during the adjournment was evidence of “cohesion”, by which one presumes the appellant meant collusion. The complaint is misconceived. There was no evidence that the support person gave any advice or encouragement to say anything at all let alone a particular version of events. Nothing more happened but that the complainant confessed she found it difficult to give expression to her recollections.

34. There are some discrepancies. One involves the timing of the events and the complainant’s age when they occurred: seven or eight on the one hand or 10 on the other. There is the account that the appellant would take the complainant from her room downstairs on some occasions when her evidence was that she was importuned into the appellant’s bedroom only when she was sleeping upstairs in an adjoining bedroom. There is C’s evidence that the complainant told her that she and the appellant would have a cigarette after their sexual activity which was not something told to A or recounted by the appellant herself. There is, depending on how one reads the evidence, a discrepancy as to the number of occasions she was asked to strip and dance and intercourse was had or attempted. There is the discrepancy as to whether the appellant applied margarine on one occasion or more than one.

35. These points which are obviously valid attract the same answer that disposed of the first ground of appeal. Whether or not the inconsistencies and discrepancies were such as to give rise to a reasonable doubt about the complainant’s veracity or the reliability of her recollections was for the jury to decide. It was up to the jury to determine whether, having heard the evidence and having their attentions directed to the discrepancies, it was or was not satisfied of guilt beyond a reasonable doubt. The assessment of the evidence, taking into account the discrepancies, was quintessentially a jury question. The learned judge gave the direction I have set out. Having been given that direction, accurate and appropriate in the circumstances, the jury declared itself satisfied to the requisite standard that the appellant was guilty.

36. There is nothing about the particular differences of account which leads one to find that the verdict was unreasonable, or unsafe or unsatisfactory. There was evidence sufficient to support a conviction if the complainant was believed. It was the jury’s responsibility and role to determine whether she should be believed.

37. There was no basis for thinking the conviction unreasonable.

38. Mention should be made of a point not raised by the appellant or adverted to by his counsel at trial. It concerns the direction which must be given to a jury when evidence is led, as happened with the testimony of the complainant and her step-sisters, pursuant to the provisions of Part 2 Division 4A subdivision 3 of the Evidence Act 1977 (Qld).  When that happens s 21AW(2) obliges the judge to 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;  and

(b)the probative value of the evidence is not increased or decreased because of the measure;  and

(c)the evidence is not to be given any greater or lesser weight because of the measure.”

39. Compliance with the subsection has given rise to difficulty in many cases. It is not obvious why that should be so. Section 21AW is now well known and the directions which it mandates are clear and easy to express. Failure to instruct in accordance with the subsection is an error of law which will necessarily vitiate the trial.

40. It was pointed out in R v Hellwig [2006] QCA 179 (at para [28]) that the subsection requires a trial judge to give four instructions:

“(i)That ... the pre-recording of evidence and its presentation to the jury by way of video tape is a routine practice of the court.

(ii)The jury should not draw any inference as to the defendant’s guilt because of that manner of giving evidence.

(iii)The probative value of the evidence is not increased or decreased because of the manner in which it was given.

(iv)The evidence has not greater or lesser weight because of the manner in which it was given.

There is considerable overlap between the contents of instructions (iii) and (iv).”

41. The judgments in Hellwig made the point that it was not necessary to give a direction in the precise words of the subsection though an instruction in the very words would be sufficient;  and some clear elaboration of the essential points might be helpful and would not constitute a departure from the statutory requirement.  But it was also said:

“A judge in discharging the obligation imposed by the subsection should use the phrases found in it, in particular that the manner of giving evidence is “a routine practice of the court”, and must tell the jury that they can not draw any inference as to the defendant’s guilt because of the adoption of the routine.”

42. In the present case his Honour explained that the complainant and her step-sisters had given recorded evidence which would be played in Court but that they themselves would not be present. He said at para [37]:

“These days, as a matter of law, there’s a routine practice, evidence of children ... are placed before juries in the form of pre-recorded evidence.”

A little later his Honour said:

“It’s important ... you treat the evidence presented from ... the ... complainant child, in exactly the same way as you treat her evidence if she was here in the courtroom in the traditional way.   So, you don’t give it any extra weight or probative value, that is, strength or any less because it’s presented in this way.  And you certainly don’t hold it against the defendant because we’re presenting the evidence in a way that is ... required by law.”

43. In summing up the trial judge said:

“You’ve heard all of [the complainant’s] evidence in electronic form ... that’s the way in which we do it now routinely for children ...  But because we have presented the evidence in that form, you don’t give it any extra weight or strength, probative value and you don’t give it any less.  In other words you treat it in exactly the same way as if [the complainant] had come here into the courtroom and sat opposite you and given the evidence that she’s given during the various recorded interviews.  And you certainly don’t hold it against the accused because we’ve done what the law requires us to do in presenting this evidence.”

44. There is a point which, as I say, was not argued which arises from the direction that the jury should not “hold ... against the [appellant]” the fact that the children’s evidence was pre-recorded. The other requirements of s 21AW(2) were adequately conveyed by what the judge said.

45. His Honour did not in terms tell the jury that they could not draw any inference as to the defendant’s guilt from the fact that evidence had been pre-recorded. That is what the subsection requires and it is what all judges should tell juries where such evidence is given. The essential point to convey is that the manner of giving evidence says nothing about the guilt of an accused, and the jury must not think it does. To say that a jury should not “hold against” an accused the manner of giving evidence is an obscure and inappropriate means of explaining that point. It is capable of conveying other meanings.

46. In the overall context of what the trial judge said, on two occasions, the instruction is just good enough. The trial judge did stress the routine nature of the procedure, that it was intended for the comfort of child witnesses and that it was required by law, as well as giving adequate instructions about the fact that its weight and value was to be assessed like any other evidence. The jury is likely to have understood that a direction that they not hold the manner of giving evidence against the appellant meant that the mode did not have any adverse consequences for him. That is close enough to an instruction that the mode is irrelevant to the appellant’s guilt as to satisfy the subsection.

47. It seems necessary to repeat that the subsection must be complied with exactly and that the four directions it requires must be given. It is prudent to do so in the terms of the statute. To attempt to paraphrase, as was done here, is to flirt with invalidating error.

48. The appellant also complains about the sentence of eight years imprisonment for the rape. It must be accepted that the act of penetration which constituted the rape was both shallow and momentary. As soon as the complainant experienced pain she pushed the appellant away and he seems to have desisted immediately.

49. Against that are the facts that the complainant was, at the most, 10 years of age. She was his niece and the rape occurred in her own home. The offence was an appalling betrayal of responsible adulthood which should have protected and nurtured the child. The complainant was entitled to expect affection and protection from the appellant. Instead the appellant took her from her own room and denied her, by threats, the protection her father would have provided. His conduct was dreadful and deserves severe punishment.

50. In R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [158] the Court said:

“... decisions of this Court ... affirm that the nature of the rape of a 10 year old girl is so serious that a sentencing range of between five and eight years imprisonment, after allowing for an early plea of guilty, is the appropriate range of head sentence for an adult whose offence did not involve actual or threatened violence or breach of trust, in the sense that concept is used in the cases.”

51. The Court also referred to R v Casey (unreported CA 262 of 1991, 3 March 1992) in which the applicant had entered an early plea of guilty to raping the nine year old daughter of his de facto wife.  He was sentenced to eight years imprisonment with a parole recommendation after two years.  He was a father figure whose offending was fuelled by alcohol.  He suffered from post-traumatic stress disorder, the aftermath of an industrial accident.  He overpowered the girl but did not use further violence.  He was otherwise of good character.  He showed great remorse for his actions and made admissions to police.

52. Eight years imprisonment without a recommendation is a heavier punishment than was inflicted on Casey. He, however, pleaded guilty, made admissions, and was said to have been greatly remorseful. The applicant was convicted after trial. He denied the offence and consequently showed no remorse. In KU the range of five to eight years was said to be appropriate where there was a plea of guilty and no breach of trust.  In the applicant’s case there was no plea; there was breach of trust.  The range for offending of this kind will therefore extend beyond eight years.  It cannot then be said that the sentence imposed, though substantial, is manifestly excessive.  The application for leave to appeal against sentence should be refused.