SUPREME COURT OF QUEENSLAND

[1] McMURDO P:  The appellant first pleaded not guilty on 3 October 2006 in the District Court at Townsville to one count of indecent treatment of a child under 16 as a guardian (count 1) and five counts of rape (counts 2 to 6).  The evidence of the complainant child, the appellant's step-daughter, was then pre-recorded.  He again pleaded not guilty on 4 August 2008 when a jury was empanelled.  On 7 August 2008, after a four day trial, the jury found him not guilty on count 1 and guilty on all remaining counts.  He was sentenced to seven and a half years imprisonment on each of counts 2 to 6.  He appeals only against his convictions on the grounds that the guilty verdicts were "unsafe and unsatisfactory".

[2] I would dismiss the appeal.  These are my reasons.

[3] The appellant is self-represented in this appeal.  His handwritten outline of argument emphasises portions of the complainant's evidence which he contends demonstrate such patent unreliability that a reasonable jury could not accept it.  He also emphasises what he says are inconsistencies between the complainant's evidence and the evidence of the complainant's mother (the appellant's wife at the time of the offences), the complainant's sister and the medical evidence.

[4] In determining this appeal, it is necessary to review the significant evidence before the jury.  The complainant's mother gave the following evidence.  The complainant was born in 1991.  The mother formed a relationship with the appellant when the complainant was about four years old.  They began to live together when the complainant was about five or six years old.  They married in 1998.  They remained together until the alleged offences came to light.  The mother recalled an incident when the complainant said her vagina was sore; she suggested the child apply Canesten cream.

[5] In the early evening of 9 October 2005, after the conclusion of the telecast of the Bathurst car race, the mother began to look for the appellant.  He had drunk a carton of beer during the day.  She noted that the complainant's bedroom door was closed.  The mother opened the door and discovered the appellant lying on top of the complainant.  The complainant was on her back with her hands above her head.  The appellant's hands were around her wrists.  They were both under the doona.  The mother said, "What the fuck are you doing?"  The appellant slid off the complainant, saying, "What?  What?  I haven't done anything.  I haven't done anything wrong.  What?  What?"  The mother said, "Get the fucking hell out of here."  He was "madly trying to do his pants up".  She heard him do up the metal zip on his pants.  He was still half erect.  He came towards the mother with his arms stretched out saying, "I love you.  I love you."  She responded, "Get the fucking hell out of here."  He walked out.  The mother then "reefed" the doona off the complainant.  The girl's shorts and knickers were around her right ankle, but her top was on.  The mother then replaced the doona over the child, kissed her, expressed her love and stated that this was not the girl's fault.  The complainant was crying. 

[6] The mother collected some of the appellant's clothing and handed it to him.  She told him that she was ringing the police and that he had two seconds to leave the house.  She armed herself with a carving knife.  The appellant insisted he had done nothing wrong.  After the appellant left, the mother took the complainant to the ambulance station where the mother spoke to an ambulance officer whom she knew.  The ambulance officer then spoke to the complainant and called a police officer.

[7] The following evening, Monday, 10 October 2005, the appellant returned to the family home after work.  He offered the mother $250,000 if she would "Just pack the kids and go".  She refused.  She said, "Just tell me why … Has it registered how wrong this is?"  He responded, "'Cause I love her."  He then drove off. 

[8] The mother subsequently received 40 or 50 phone calls[1] from the appellant's mobile work number, including 27 "voicemail messages".  The phone was subsequently disconnected and the voicemails were lost.  She answered only about five of the phone calls from the appellant's mobile work number.  She thought these calls were made on Tuesday, 11 October or Wednesday, 12 October 2005.  Telstra records from the family home phone number from 9 October to 12 October 2005 did not show any phone calls from the appellant's mobile work number.  The mother nevertheless insisted that the appellant made these numerous calls to the family home phone.  On one occasion when she answered the phone, he said, "Ask your daughter how to do a decent head job.  She's good at it.  You're nothing but a fucking slut."  She thought she may have received these phone calls on 16 and 17 October 2005.  She told the police officer about the phone calls at the time.  The officer advised her to record them.  She obtained a tape-recorder the following Monday, but there were no more such phone calls.

[9] In cross-examination, she stated that the lights were not on when she discovered the appellant in the complainant's bedroom.  She agreed that the lighting was dull.  She mentioned, however, that she was able to see what was happening; it was daylight outside.  She was unsure when the appellant made the many phone calls to the family home phone as she was not functioning well after the events of 9 October 2005.  She agreed that at the Magistrates Court committal proceedings in October 2006 she said that the appellant made the phone call about the "head job" on the Monday immediately following the appellant's departure from the house, that is, Monday, 10 October 2005, and that other calls were made on Tuesday, 11 and Wednesday, 12 October 2005.  She agreed that in November 2007 the police obtained records of the phone calls made to the family home number from 9 to 12 October 2005 and that these records did not tally with her recollection.  She mentioned that the appellant made the phone calls and reasoned that the phone calls must have been made not on the Monday 10, Tuesday 11 or Wednesday 12, but on Thursday, 13 or Friday, 14 October 2005.  She denied having any extensive or detailed conversation with the complainant about what had happened between the complainant and the appellant on 9 October 2005 after the event.  After the incident, the complainant was crying and kept on saying, "I'm sorry, Mummy."  The mother agreed that the ambulance officer spoke to the complainant.  The ambulance officer then told the mother that the complainant reported that the appellant had not penetrated her and "that this was the first time that it had happened".

[10] In the complainant's first video taped interview by police on 12 October 2005,[2] she did not allege that the appellant had penetrated her vagina with his penis on 9 October 2005.  In her next video taped interview with police officers on 14 October 2005,[3] she complained that the appellant had had sexual intercourse with her on other occasions, but, again, did not make a complaint about sexual penetration on 9 October 2005.  Her first complaint that the appellant had sexual intercourse with her on 9 October 2005 was to the doctor who examined her on 14 October 2005.  Police interviewed her on video tape for a third time later on 14 October 2005.[4]  She for the first time told police in this interview that the appellant put his penis into her vagina on 9 October 2005.  The prosecution relied on this evidence to establish count 6.

[11] The complainant gave the further following evidence by way of the three police interviews tendered under s 93A Evidence Act 1977 (Qld) and by way of pre‑recorded evidence under Div 4 of Pt 2 of the Evidence Act.  One Friday night about 17 or 18 months before the first police interview on 14 October 2005,[5] she was home alone with the appellant.  He called her into the bedroom and asked her to lie down with him.  He left and then returned with a condom on his penis and rubbed it against her body.  In cross-examination, she said he was not wearing a condom on this occasion.  This evidence was relied on by the prosecution to establish count 1, on which the appellant was found not guilty.

[12] One Friday, some 16 or 17 months before she was first interviewed by police on 14 October 2005,[6] she was on a mattress in the lounge room with the appellant.  He took off her pants, pulled down his boxer shorts and inserted his penis into her vagina.  She said, "no," and tried to pushed him away.  His "doodle" was pushed all the way in and it hurt "heaps".  He said something like, "Oh, I will give you the sex of your life."  She was scared because she thought that he was really going to hurt her.  As he walked out, he said under his breath, "Never tell your mother."  The prosecution relied on this evidence to establish count 2. 

[13] About a month and a half later, the appellant approached her on the lounge.  He took off her pants, lay on top of her, and put his penis into her vagina.  This hurt her.  She said, "Stop. I don't want to do this."  He kept doing it.  He pushed his "doodle" inside her about three or four times.  He told her she was beautiful and kissed her on the mouth, putting his tongue inside her mouth.  She pushed him off.  He said something like, "Oh, you're no fun."  She became upset when he would not stop.  Her vagina was red and sore for a couple of days.  She told her mother her vagina was sore and her mother told her to apply Canesten cream.  In answer to a leading question from the police interviewer, she said that she noticed a little blood coming from her vagina after this episode of sexual intercourse.  The prosecution relied on this evidence to establish count 3.

[14] One Friday night, about six and a half weeks later, about the time of the birthday of a friend, the appellant tongue-kissed her, told her how beautiful she was and that he loved her, took her pants off, opened her legs and placed three fingers in her vagina.  This hurt her.  He said he loved her.  She said, "Yeah, whatever," and pushed him away.  She told him to go away.  He became angry with her when she did not do what he wanted.  He had drunk about eight to 10 beers.  He walked out and slammed the door.  She could feel his knuckles inside her vagina and the fingers penetrated her vagina to their full extent.  Her vagina was sore for about two days.  She again applied Canesten cream.  The prosecution relied on this evidence to establish count 4.

[15] One Friday night she was sitting on a beanbag in the lounge room watching a movie.  The appellant came into the room.  He was wearing his pyjama boxer shorts.  He told her she was beautiful.  He removed his pants.  His penis was a little bit hard.  He stuck it in her mouth.  It tasted salty.  She tried to pull away.  He pushed her head forward.  She pushed him away with force.  He fell over backwards.  She got up and brushed her teeth as her mouth felt "yucky".  The prosecution relied on this evidence to establish count 5.

[16] She did not tell the police at first that the appellant had had sex with her on 9 October 2005 (count 6) because she was scared.  She thought that if he found out that she had told the police he would probably try and do something to her because he always told her never to tell anybody.  She had not had sex with anybody other than the appellant.  He forced her to have sex with him.

[17] In cross-examination, she agreed, that after she claimed the appellant had threatened her, she continued to go on outings alone with him.  In respect of count 5, she was uncertain whether the offence occurred in the appellant's bedroom or in the lounge room.  She thought it happened in his bedroom as she could remember the bed.  She agreed that her best recollection at the time of her cross-examination was that she thought this episode (count 5) could not have occurred in the lounge room.  She maintained that all six counts occurred.

[18] The complainant's older sister was living with the complainant and her mother in the family house in October 2005.  She remembered hearing a voicemail which had been left on the family home phone.  She recognised the appellant's voice in the voicemail.  He called her mother "a lying bitch for believing my little sister over him … and something about asking her about great head."  This voicemail was left a few days after the appellant had left the family home, one or two days before the phone line was disconnected.  The appellant sounded drunk.  At about this time, the family home phone number had been receiving "prank" phone calls from the appellant's work mobile.

[19] Dr Andrew Geoffrey Fisher examined the complainant on 14 October 2005.  The complainant reported an 18 month history of sexual assault by her step-father.  This involved him putting his penis and fingers inside her vagina against her will on a number of occasions.  She initially said that the last occasion of penetration was about two weeks earlier, but then said that the last occasion of penetration was when the step-father was discovered in her bed on 9 October 2005.  There were no injuries or other indications of repeated sexual activity.  The hymen appeared intact.  This was not unusual in such cases.  It is more unusual to actually find an injury to the genitalia.  There was nothing medically to either support or refute her allegations.  Close to an event, a tear or a healing tear in the hymen can be detected.  The complainant gave a history of no pain or bleeding on any of the occasions of penetration so that he had no reason to suspect he would find a significant injury.  Evidence of injury was more likely when the trauma was both significant enough to cause pain and bleeding and was also recent.  The complainant told him that the appellant on no occasion used a condom.  Dr Fisher agreed it would be more likely to find some sign of injury if the penetration had occurred five days beforehand rather than two weeks beforehand.

[20] The appellant did not give or call any competing evidence.

[21] The appellant contends that the complainant's evidence could not be accepted by the jury beyond reasonable doubt.  He especially emphasises the following matters.  She made no complaint of sexual intercourse to the ambulance officer or to the police officers during the first interview on 12 October 2005.  In respect of count 6, she made no complaint about penile penetration until after the second of the two police interviews on 14 October 2005, her third interview with the police.  The appellant emphasised that there was no complaint of penile penetration in respect of count 6 until after the medical examination.  She gave inconsistent evidence as to whether or not a condom was used in respect of count 1.  She claimed that she was very sore and bleeding from the vagina after the offences.  This was inconsistent with the version she gave the doctor and with the doctor's evidence of an intact hymen.  If the offences had been committed in the way the complainant contended, it was likely that there would have been some injury to her hymen.  She gave contradictory evidence on count 5 as to whether it occurred in the lounge room or the bedroom.  There were inconsistencies between the complainant's account on count 6 on matters such as whether she was wearing jeans or shorts; whether or not she was under the doona; and whether or not she cried afterwards.  The appellant contended that there was a real possibility that the complainant collaborated with the mother in fabricating their evidence because in the police interview the complainant spoke of matters that she could only have learned from the mother.  The appellant also emphasised that the evidence of the mother and the complainant's sister as to phone calls they claimed he made was not plausible because it was not supported by the tendered phone records. 

[22] The matters now relied on by the appellant in this appeal were investigated and thoroughly canvassed by his counsel at trial, both in cross-examination and in his counsel's address to the jury.  The judge also raised many of these matters in the judge's final directions to the jury.  The complainant's evidence on count 1 on which he was acquitted was inconsistent as to whether or not he was wearing a condom.  That is probably why the jury gave the appellant the benefit of the doubt and found him not guilty in respect of count 1.  That inconsistency did not, in this case, require the jury to necessarily have a doubt in respect of the remaining counts.  The complainant gave uncontested evidence as to the essential elements of each of counts 2 to 6.  Her account was in many ways very plausible.  It was supported by other evidence, especially from the mother.

[23] The inconsistencies upon which the appellant relied were not so critical as to require the jury to have a doubt about her essential evidence as to the elements of each offence.  On the whole, the complainant's account was convincing.  She was only 13 and 14 when the offences occurred, and 14 at the time of the video taped police interviews.  She did not seem to be particularly articulate at that time or when she was cross-examined in 2006.  She was recalling events which must have embarrassed and distressed her.  Her reluctance to make an immediate full and frank complaint to the ambulance officer and to police officers is consistent with the mixed emotions she must have felt towards both the appellant and her mother.  The appellant had been her step-father for as long as she could remember.  She considered the appellant a "normal father" and he had told her not to tell anyone about his sexual abuse.  Her mother was clearly distraught on discovering the appellant's betrayal of her with her young daughter.  For complex reasons, even truthful young complainants in circumstances like these can often feel, quite wrongly, a sense of personal guilt.  It is not surprising that she was a reluctant complainant in the circumstances.  The mother's evidence of the events of 9 October 2005 and the appellant's subsequent statements and conduct were persuasive supporting evidence of the complainant's account in respect of counts 2 to 5.[7]

[24] The evidence from the mother and sister as to the appellant's abusive, and in one case damning, phone calls, was not supported by the phone records.  But these records only related to 9 to 12 October 2005 when the evidence was that the phone calls may have been made between 13 and 17 October 2005.  The mother and the sister both maintained in cross-examination that the appellant made these phone calls.  There was no competing evidence either from the appellant or, for example, from the appellant's work mobile phone records.  The jury were entitled to accept the evidence in this and other respects. 

[25] The complainant's evidence was not that she received serious physical injuries during the commission of these offences.  Her evidence of bleeding on one occasion was in response to a leading question from a police officer.  The doctor's evidence was simply that, if force had been used close to the time of his examination, it was more likely that he would have found some physical evidence of it.  The doctor's evidence was not helpful to the prosecution case but it was not actually inconsistent with the complainant's evidence.  This was an important issue at trial and the jury must have been cognisant of it.  It did not compel them to reject the complainant's evidence. 

[26] The remaining matters raised by the appellant, either alone or in combination with his other contentions, did not compel the jury to reject the complainant's evidence.  The mother's evidence, and to a lesser extent the evidence of the complainant's sister, provided persuasive support for the complainant's account.

[27] After reviewing all the evidence at trial, I am well satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of counts 2 to 6 inclusive: MFA v The Queen.[8] It follows that the appeal against conviction must be dismissed.

[28] FRASER JA:  I agree that the appeal should be dismissed for the reasons given by McMurdo P.

[29] CHESTERMAN JA:  I agree that the appeal should be dismissed for the reasons given by the President.