SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 26 March 2008 the appellant was convicted upon the verdict of a jury of one count of rape, three counts of attempted rape, and four counts of indecently dealing with a child under the age of 16 years who was in his care.  There were 10 counts on the indictment on which the appellant was tried.  The jury delivered differing verdicts on each of these counts as follows:

[2] From these verdicts, having regard to the evidence adduced at the trial, it is apparent that the jury accepted beyond reasonable doubt that the appellant digitally penetrated the complainant's vagina without her consent, twice attempted to have sexual intercourse with her without her consent, attempted to penetrate the complainant's mouth with his penis without her consent, and touched the complainant's breasts with his hand and with his mouth, licked her vagina, and placed his finger in the region of her vagina. 

[3] For these offences, the appellant was sentenced to an effective term of three years imprisonment.

[4] The appellant seeks to have this Court quash the convictions.  I will discuss the grounds of appeal advanced by the appellant after summarising the case presented for each side at trial.

The Crown case at trial

[5] The Crown alleged that the offences with which the appellant was charged were committed in the early morning of 17 December 2005.  The complainant was 14 years old at this time.  The appellant, who was then 53 years old, lived with the complainant's mother.  The complainant usually resided with her father, but she was spending the night at her mother's house.  The complainant alleged that the offences were committed in her bedroom at her mother's house. 

[6] On 17 and 18 December 2005 the complainant participated in an interview with police; the video-recording of this interview was admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld).  In this interview, the complainant told police that while she was in bed during the early morning of 17 December, the appellant came into her room and engaged in a number of sexual acts with her. 

[7] The complainant said that she had been with her mother and the appellant at a function earlier in the evening.  When they returned home, the complainant's mother went to bed.  The appellant and the complainant stayed up to decorate a Christmas tree.  Then the complainant went to bed and fell asleep.  She was awakened by the appellant's hands on her.  The complainant said that the appellant pulled down her top and touched, nibbled and licked her breasts (count 1).  On this count, the jury convicted the appellant of indecent treatment of a child. 

[8] The complainant said that the appellant then pushed her boxer shorts and underwear to one side and put his finger in her vagina.  She could feel a sharp fingernail on her clitoris and then about 10 centimetres inside her vagina.  He pushed his finger up and down and hurt her because of his long fingernail sticking into her (count 2).  On this count the appellant was convicted of rape.

[9] The complainant said that the appellant then licked her vagina (count 3).  On this count, the jury convicted the appellant of indecent treatment of a child. 

[10]  The complainant said that he then "started fingering [her] again" while licking her breasts at the same time (count 4).  On this count the jury acquitted the appellant of rape, but convicted him of indecent treatment of a child.

[11]  The complainant said that the appellant then rolled her onto her back and attempted to put his penis into her vagina.  She said that she was moving around so that he was unable to effect penetration (count 5).  On this count the jury convicted the appellant of attempted rape.

[12]  The complainant said that the appellant "continued with the fingering and licking".  She explained that this involved licking and fingering her vagina at the same time.  In this regard she said "… I think he got there – I don't know", and later when pressed as to whether "you think he got inside" she replied:  "Yeah.  'Cause he, um, I don't know.  It was either his penis or his tongue, or his finger at the same time.  It all felt really weird at the same time, so I don't know." (count 6).  On this count the appellant was acquitted of the charge of rape, but was found guilty of indecent treatment of a child.

[13]  The complainant said that the appellant pulled her leg up onto his left shoulder and attempted, again, to put his penis into her vagina (count 7).  On this count the jury found the appellant guilty of attempted rape.

[14]  The complainant said that the appellant then attempted to put his penis into her mouth, saying:  "Baby, please open up."  She said that she turned her head away (count 8).  On this count the jury found the appellant guilty of attempted rape.

[15]  The complainant said that the appellant then left her bedroom.  She waited for about 10 minutes and then got up to get a drink and go to the toilet.  When she was going back to her bedroom, the appellant stopped her and kissed her trying to put his tongue into her mouth.  She saw that the time on her clock was 3.15 am when she went back to bed and cried herself to sleep.

[16]  The complainant said that she awoke at about 5.00 am, not long after daybreak.  The appellant came into her room and sat on her bed.  He rolled her onto her back and "started fingering" her again.  She said he fingered her vagina twice (count 9).  She pushed herself back onto her side, and told him that she was going back to sleep.  He then left the room.  On this count the jury acquitted the appellant of rape and of the alternative count of indecent treatment of a child.

[17]  The complainant said that the appellant came back into her room at about 7.30 am.  She said that she knew it was about that time because that was the time when her mother usually got up and her mother was up.  The appellant asked her if she wanted some breakfast; she said that she was tired.  The complainant said that he then started "fingering [her] again".  She said that she said:  "No", and told him that she was tired.  He then left the room (count 10).  The jury acquitted the appellant of the charge of rape and of the alternate count of indecent treatment of a child.

[18]  The complainant said that she got up at 9.22 am and left the house.  She said that she telephoned her boyfriend on a pay phone nearby.  She said that she told her boyfriend what had occurred.  The complainant's boyfriend did not give evidence at the trial.

[19]  The appellant came looking for the complainant in his car.  He picked her up and drove back to the complainant's mother's house.  On the way he asked her not to tell anyone what had happened.  She said that either he would tell her mother what had happened, or she was going to.

[20]  According to the complainant in her interview with police on 17 December 2005, when she and the appellant returned to the complainant's mother's house and the appellant did not tell her mother what had occurred, the complainant told her mother "everything".  Later in that interview with police, the complainant qualified this statement, saying that all she told her mother initially was that the appellant had fingered her and licked her.  She said that she did not tell her mother the detail of what had occurred or that the appellant had come into her room more than once. 

[21]  The complainant said that the appellant and the complainant's mother had a heated argument, and the appellant left the house.  The complainant then told her mother that the appellant had tried to rape her.  The complainant's father then came to pick her up and she told him what had happened.

[22]  The police were then contacted and the complainant was interviewed.

[23]  In the complainant's second interview with police on 18 December 2005, the complainant said that she had not consented to the appellant's advances, and that she had tried to cover herself and move away from him while he was molesting her.

[24]  The complainant's cross-examination was pre-recorded on 22 December 2007.  On this occasion she said that she could recall very little of what had occurred.  She said she had tried to block out her recollection during the intervening period.  She said that she could recall the appellant sitting on her bed at about 2.00 am.  She said that she went back to sleep and did not know if he left or stayed.  She was awakened by the appellant putting his fingers into her vagina.  It was still night when this happened.  She said that she recalled the appellant coming into her bedroom again to ask if she wanted some breakfast, and, on this occasion, he again put his fingers in her vagina.

[25]  The complainant's mother gave evidence that, on the night of 16 December, she had gone to bed leaving the appellant and complainant putting up Christmas lights.  She said that she lay in bed for a time and then got up to see the appellant still up and drinking by himself.  She said that the two of them went back to bed together at 12.02 am.  She went to sleep and woke briefly at 4.30 am when the alarm went off.  The appellant was in bed and appeared to be asleep.  She got up with the appellant at between 7.00 and 7.30 am.  She had a shower and breakfast.  The complainant was still in bed, and she asked the appellant to go and see if the complainant wanted breakfast.  The appellant went off and came back saying that the complainant was still asleep.

[26]  The complainant's mother said that the complainant went out of the house when she got up, and the appellant later went out to collect her.  She said that when they returned the complainant was yelling that if the appellant did not tell her, then she would tell her.  The complainant's mother said that the complainant then said that the appellant had been "licking her out and fingering her, and he touched her boobs and down below."  She said that the complainant did not say that the appellant had tried to put his penis into her vagina or mouth. 

[27]  The complainant's mother said that when she challenged the appellant, he said that he had accidentally touched the complainant when he went to kiss her goodnight and "kissed her boob"; when he had gone to pat her on the leg, she had moved and he had touched her "down below" so that he felt pubic hair.

[28]  The complainant's mother gave a statement to police on 18 December 2005.  She then separated from the appellant for a period of time, but moved back together with him in January 2006.  At this time, he had a copy of her statement to police.  She said in evidence that the appellant asked her on a few occasions to say that she had been awake all night evidently with a view to showing that he had no opportunity to molest the complainant. 

[29]  The complainant's mother gave evidence that she had been prepared to change her statement for the benefit of the appellant and contacted the police to that end.  The police officer told her that she should not lie in her statement to the police otherwise she could be charged with an offence.  The complainant's mother said that she then realised that she should not attempt to change her statement. 

[30]  The complainant's mother separated from the appellant again on 7 September 2006.

[31]  The complainant's father died before the matter came on for trial.  He had given a statement to police.  It was read out at trial pursuant to s 93B of the Evidence Act 1977 (Qld).  The complainant had told her father that the appellant "fingered [her] and tried to have sex with [her]."

[32]  The complainant underwent a medical examination at about 5.45 pm on 17 December 2005.  The complainant's genitalia were found to be normal by the medical practitioner who said that that was consistent with what the complainant reported and the circumstance that she made no complaint of ongoing discomfort.

[33]  Testing of a swab taken from the complainant's nipples revealed the presence of DNA consistent with the appellant's DNA profile.

The appellant's case at trial

[34]  The appellant did not give evidence at trial.  He was interviewed by police on 18 December 2005 and a record of that interview was tendered at trial. 

[35]  In the appellant's record of interview he said that he was asleep at the time of the alleged offences but stated that he might earlier have touched the complainant accidentally.  He said that everyone had gone to bed after hanging up the Christmas lights at about 12.30 am.  He said that the complainant got up not long after – this was before the complainant's mother got up because she was feeling sick.  He said that when the complainant went back to bed, she asked him to come and tuck her in, and he had done so.  He gave her a cuddle and somehow her top came down, and when he leaned forward to give her a kiss, he accidentally kissed her on the top of her breast.  He said that the complainant then opened her legs and said something about having had sex with other men.  He went to give her a pat and accidentally patted her on the vagina.  He said that he then went to bed and did not see the complainant again until the following morning when he went to ask if she wanted any breakfast and she was still asleep.  He said that on this occasion he may have touched her on the arm.  He said he would hardly have done anything to the complainant on this occasion with her mother in the next room.  He said that he picked her up later that morning when she was crying and said that either he would tell her mother what happened the night before or she would. 

[36]  The appellant also said in his record of interview that when he was initially challenged by the complainant's mother, he told her that nothing had happened, but that he then conceded that he may have touched the complainant's boobs and down below and that "it was the alcohol".

The grounds of appeal

[37]  The appellant contends that the verdicts of the jury were unreasonable, in that the jury acquitted him of two counts of digital rape while convicting him of one count of digital rape on evidence which was essentially of the same quality.

[38]  The appellant also argues that the learned trial judge erred in ruling admissible the evidence of the complainant's mother that the appellant had asked her to change her statement to the police so as to support a defence of alibi.

[39]  The appellant, who had the benefit of legal assistance at trial and in the preparation of his notice of appeal, was unrepresented on the hearing of the appeal.  The appellant sought to rely in this Court upon a number of affidavits for the purpose of showing that the complainant's mother told a number of people that the complainant's allegations against the appellant were false.

[40]  I shall now discuss these grounds of appeal and the further evidence on which the appellant seeks to rely.

Inconsistent verdicts

[41]  The different verdicts of the jury are readily understandable on the basis that, while the jury regarded the complainant's evidence as essentially reliable, they were prepared to entertain a doubt about some aspects of her account.  On this basis the verdicts can be reconciled as a matter of logic and common sense.[1]

[42]  The complainant's account of the incidents the subject of counts 1 to 8 was supported, to a considerable extent, by the appellant's own statements to police, including his clumsy attempts at self-exculpation.  One can readily understand that the jury would have regarded as unworthy of belief the appellant's awkward attempt to put an innocent explanation on his admitted intimate touching of the complainant.  Further, the jury might well have regarded the appellant's statement that the complainant spoke to him of her sexual experiences with other men as a self-serving denigration of the complainant suggestive of a willingness on her part to engage in sexual contact with him.  The jury might have regarded this self-serving evidence as revealing a glimpse of a sexual interest in the complainant on the part of the appellant. 

[43]  On the other hand, so far as counts 9 and 10 were concerned, the jury might have been willing to entertain a doubt about the complainant's account because of the absence of other evidence supporting this particular aspect of the complainant's account and a concern as to the improbability of the appellant's molesting the complainant while her mother was awake and nearby.

[44]  So far as counts 4 and 6 are concerned, the jury might reasonably have been prepared to give the appellant the benefit of the doubt because of the absence of the kind of detail in relation to the alleged penetration given by the complainant in relation to count 2.  The vagueness and generality of the complainant's evidence in relation to counts 4 and 6 may well explain the jury's willingness to accord the appellant the benefit of this doubt in relation to these counts.

[45]  This ground of appeal must be rejected.  The evidence on which the jury was satisfied of the appellant's guilt on some counts was simply more cogent than the evidence on the counts on which the jury acquitted him. 

The false alibi

[46]  At trial the appellant's counsel objected to the admissibility of the evidence from the complainant's mother of the appellant's requests to her to say that she had been awake all night and had seen that he was asleep the whole time.  This objection was over-ruled by the learned trial judge on the basis that evidence of an attempt by the appellant to create a false alibi was probative of a consciousness of guilt on the appellant's part, and that any possible prejudice to the appellant could be dealt with by directions to the jury.

[47]  In my respectful opinion, the learned trial judge was right to rule that the evidence of the appellant's attempt to manufacture a false alibi was relevant and admissible.  Just as the telling of lies about one's knowledge of a crime or flight from the scene of a crime may tend to prove consciousness of guilt, so an attempt to raise a false alibi may give rise to an inference of a consciousness of guilt on the part of the accused.[2]  Such an inference is particularly relevant where it rationally tends to rebut a defence of accident raised by an accused. 

[48]  As with other forms of circumstantial evidence which are not indispensable steps in the proof of guilt, it is not an essential condition of the admissibility of such evidence that it should be consistent only with the conclusion that the accused is guilty of the offence charged.[3]  As a result, there is a danger of unfair prejudice to the accused in such evidence because there may be reasons why an accused might seek to manufacture proof of his innocence other than a consciousness of his guilt of the offence charged.  Because of the risk that the prejudicial value of the evidence may exceed the probative value of the evidence, directions to the jury are required to ensure that they weigh the probative value of an accused's attempt to manufacture evidence of innocence in the light of possible explanations consistent with innocence of the offence charged.  But, ultimately, the value of the evidence in any particular case should usually be a matter for the jury.[4]

[49]  In this case, the learned trial judge directed the jury to scrutinise carefully the evidence of the complainant's mother, and reminded them that even if they accepted that evidence as truthful, there might be explanations of the appellant's conduct consistent with innocence on his part, such as panic, or fear including fear of being wrongly convicted, or a misguided attempt to bolster a just cause.  His Honour said:

"Moreover, before the evidence can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt on the part of the defendant but also that what was in his mind was guilt of the offences charged and not some other conduct, for example, an accidental contact with the complainant.

If and only if you reach the conclusion that there is no other explanation for his conduct, such as panic or fear of wrongful conviction, you are entitled to use that evidence as a circumstance pointing towards the guilt of the defendant to be considered by you with all the other evidence in the case.  Standing by itself, it could not prove guilt."

[50]  The directions given by the learned trial judge were in conformity with the requirements of the decision of the High Court in Edwards v The Queen[5] to ensure that the jury were mindful of the use which they might legitimately make of this evidence.

[51]  The appellant's attempt to raise the false alibi was probative of the appellant's guilt in that it tended to confirm that his account of accidental or unintentional touching as an explanation for the presence of his DNA on the complainant's nipple was unworthy of belief on the basis that even the appellant himself recognised that his account of the accidental or unintentional touching of the complainant stretched credulity too far.  It may be acknowledged that the probative value of this evidence was not great, and that there was a risk of undue prejudice to the appellant.  The risk that the probative value of the evidence might be outweighed by its prejudicial effect was adequately addressed by the directions to the jury given by the learned trial judge.[6]  That this is so is confirmed by the jury's verdicts.  It is evident that the jury did not treat the evidence that the appellant sought to manufacture a false alibi as leading to the conclusion that he was guilty on all charges.

[52]  Accordingly, I would reject this ground of appeal.

Further evidence

[53]  The appellant invited the Court to receive affidavits from four people who are friends and relatives of the appellant.  Each of the deponents asserts that he or she was told by the complainant's mother that the complainant's allegations against the appellant were false.

[54]  The first thing to be said about these affidavits is that they are objectionable hearsay.  On this ground alone, they would have been inadmissible at trial as proof of the fact that the complainant's allegations against the appellant were untrue. A fortiori, they are inadmissible on appeal on that basis.

[55]  To the extent that these affidavits provide information which is a basis for the cross-examination of the complainant's mother, it seems that the information was available at trial.  None of these conversations were put to the complainant's mother in cross-examination; no explanation is given for this omission.

[56]  It may be that, as the respondent suggests, a tactical decision was made by the appellant's legal representative, as these conversations reflect the temporary willingness on the part of the complainant's mother to fabricate evidence in support of the appellant's case while she was living with him.

[57]  However that may be, the new evidence on which the appellant seeks to rely is not apt to give rise to a concern that an innocent man has been convicted.  Even if it were demonstrated that the evidence of the complainant's mother as to the appellant's attempt to get her to supply him with an alibi was false, the destruction of the mother's credibility would not serve to establish the alibi:  there would simply be no credible evidence on the point.  Even if the evidence of the complainant's mother is ignored, there remains a strong case against the appellant.  The complainant's evidence was uncontradicted, and was supported by the DNA evidence and the appellant's record of interview. 

Conclusion and orders

[58]  I have concluded that the grounds of appeal advanced by the appellant are not made out.

[59]  I would order that the appeal be dismissed.

[60]  CHESTERMAN JA:  I agree with Keane JA.

[61]  ATKINSON J:  I agree that the appeal should be dismissed for the reasons given by Keane JA.