SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 4 September 2008 the appellant was convicted upon the verdict of a jury of one count of indecent dealing with a girl under the age of 14 years and one count of rape.  For the offence of rape he was sentenced to eight years imprisonment.  He was sentenced to a lesser concurrent term of imprisonment for the offence of indecent dealing.

[2] The appellant seeks to appeal against his convictions on the basis that "the verdict was unreasonable or cannot be supported having regard to the evidence."[1]  A discussion of this ground of appeal must commence with a summary of the evidence adduced at trial.

The case at trial

[3] The Crown case was that the offences in question had been committed between 1 January 1984 and 31 March 1985.  The complainant was born on 4 April 1973.  The appellant is the nephew of her step-father. 

[4] The complainant's evidence was that she was about 10 years old at the time of the offences which occurred, she said in her evidence-in-chief, "around '84, '85".  The complainant was 35 years old when she gave evidence at trial.

[5] The complainant said that at the time of the offences she was living with her mother and step-father in a house at Rasmussen in Townsville. 

[6] The complainant said that in the late afternoon of a day when her parents had been hosting a party at their house she went into her bedroom and turned around to find the appellant "standing there at the door".  The appellant had been drinking all afternoon.  He pushed her onto the bed and lay on top of her.  He smelt of alcohol.  He put his hand over her mouth.  She tried to push him off, but he was too strong for her and she could not scream because his hand was over her mouth.  His other hand was up her dress and inside her pants.  He inserted his fingers into her vagina.  He then undid his jeans "and it just felt different and it hurt more."  She said that she "knew it was something different 'cause it felt bigger."  He was moving around on top of her in "a back and forth motion."  This went on for "a couple of minutes" after which he got up and left the room and returned to the party. 

[7] The complainant said that she was crying and was too scared to tell her parents because she was afraid that she would get another beating from her step-father.

[8] The complainant said that the first person she told about this incident was her cousin, L.  The complainant said that this occurred when she "may have been 13 or 14" years old.  The complainant said that she was at L's house at Kirwan when she told L that she was sexually abused by the appellant at the house at Rasmussen.  The complainant said that although she did not tell L "all the details", she did tell her "what happened, who did it to me and when it happened, and where."

[9] The complainant also gave evidence that in 1993 she told her mother and step-father the appellant "sexually abused [her] when [she] was a little girl."  The complainant's evidence was that she made her complaint at this time because she was sick of being beaten by her step-father and because she "needed support from [her] mother."  The complainant's step-father called the police.  Two detectives came to the house, but the complainant said that she was unable to tell her story again, and so she made no formal complaint to the police.

[10]  The complainant later moved away from Townsville.  When she returned in 2005, she saw the appellant again, drinking in a pub with her step-father and another man.  She said: "And that was it for me, I just had to do something about it."  The complainant made her first formal complaint to the authorities in late 2005, and the appellant was not informed of the charge against him until 16 January 2007.

[11]  The appellant did not give evidence at trial.  He denied that the events alleged against him had occurred.  His case was put in cross-examination that the complainant's evidence was not sufficiently reliable to warrant the conclusion that he was guilty beyond reasonable doubt.

[12]  In cross-examination of the complainant, the appellant's counsel elicited the concession that the attack upon her may have occurred at night when it was dark.  The appellant's counsel also made it clear that the complainant was unable to say whether the incident the subject of the charges against the appellant occurred when she was nine or 10 or 11 years old.  The appellant's counsel was also able to point to disparities between the evidence of the complainant and other witnesses called by the Crown in relation to the circumstances of her complaints about the incidents. 

[13]  The complainant's cousin, L, gave evidence that in about 1984 or 1985 the complainant told her that when she was "living in Rasmussen that she was sleeping one night and someone had entered her room … as she was sleeping, they approached her and sat on the bed and just touched her underneath the sheets in her private parts."  According to L, the complainant made this disclosure to her at a house in Garbutt where the complainant was then living.

[14]  The complainant's mother gave evidence that in 1993 the complainant told her and her husband that the appellant had "assaulted" her.  The complainant's step-father also gave evidence that in 1993 the complainant said "something about being assaulted" by the appellant.

The ground of appeal

[15]  The ground on which the appellant challenges his convictions involves the contention that this Court could not be satisfied on the whole of the evidence that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.[2]  A consideration of this contention requires some reference to the directions of the learned trial judge.  These directions were apt to alert the jury to the strength of the appellant's case that the complainant's evidence against him could not reasonably be relied upon to convict him.  There were a number of respects in which the learned trial judge drew the jury's attention to the existence of reasons for caution in acting upon the evidence of the complainant.  I propose to set out the relevant directions given by the learned trial judge before giving further consideration to the appellant's ground of appeal.

The trial judge's directions

[16]  The only evidence against the appellant was that given by the complainant.  Given the extreme delay in the making of a formal complaint against the appellant, it was necessary for the learned trial judge to give the jury a warning as to the danger of convicting the appellant.  His Honour said:

"Now, I want to say something specifically about the delay because you might think that looms large as a factor bearing upon your assessment of [the complainant's] reliability at this point in time, some 24, 25 years later. Her long delay in reporting the incident has had this obvious consequence; it means that her evidence cannot be adequately tested or met after the passage of so many years, [the appellant], having lost by reason of the delay any real means of testing and meeting her allegations that might otherwise have been available. For example, he might have been able to say if the allegation came up in 1984 when [the complainant] says it occurred, he might have been able to prove that he was in Hughenden or in Weipa. Remember that evidence about him being away from Townsville for periods of time. He may have been able to prove that he wasn't there at the party on the night. He may have had the opportunity of a medical examination that might have assisted him; it might not; we just don't know. There may have been forensic evidence, for example, evidence of hair, bodily excretions on sheets, et cetera.

We don't even have here, because of the long delay, any evidence at all, apart from [the complainant], about the layout of the house which, in the context in which she describes the offence had been committed, you might think would have assisted you. You'll remember Mr Hibble's submissions about this. It was an old Queenslander with - and probably all of you are familiar with old Queenslanders - you can hear someone cough at the end of the house. If the layout, photographs, a floor plan, it might have assisted you, but the house has gone, and that's all because there's been a delay. Now, that's not to criticise her. That's simply a fact. And it's a matter that bears very significantly on her reliability because of the delay.

In addition, in this case the defendant has been denied by the long delay the opportunity to investigate the possibility that some other male may have been the person who sexually abused her. So, it may be that something did occur as she says but that she's mistaken. She's identified him as being the perpetrator. She certainly didn't name him in 1985 - if you accept [her cousin, L's] evidence, when that was the earliest date after the incident that you've heard any complaint evidence. She says she identified him because she knew him; he was her stepfather's cousin - stepfather's nephew, and she recognised him.

By the conduct of the defence case obviously the defendant denies being the attacker but the long delay has meant that he has no way now of investigating the possibility that [the complainant] may be mistaken in her identification of him."

[17]  The learned trial judge also gave the jury a warning as to the danger that the complainant may have incorrectly identified the appellant as her assailant.  His Honour said:

"You'd all understand I'm sure that identification evidence on its own can be seriously flawed. If I can give you one example, some of you may have even had this experience. Almost certainly if five people witness, for example, a motor vehicle accident in which someone's hurt from different vantage points which, of course, they weren't expecting, almost always you'll get quite different stories. You'll get five different stories. Not because people are trying to be disingenuous or dishonest but people can be honestly mistaken. So even a particularly honest witness can be mistaken about the identification of an offender. Experience has taught us in the Courts that because of this, because of the inherent nature and weakness of identification evidence, serious injustices can occur when tribunals of fact act on identification evidence. As I say, even a very honest and certain witness can be mistaken. And I'm sure when you think about it in your own experience you can understand why the law has always approached identification evidence with great care.

In this case, you've heard that there were other males in the house. There was drinking - a lot of drinking from the sound of it. There was certainly his brother. Whether [another named male person] was there, we don't know, but there were other males.

[The complainant] described the incident as occurring very suddenly and very quickly. So, it wasn't as if it was a long attack. She says it occurred in the late afternoon; the light was dull. She was in her bedroom, which only had one window. So, you can imagine that the light might not have been particularly good. She wasn't able to recall anything about the defendant's facial features, in other words, whether he had a beard or not, but you might think at the end of the day that's a pretty neutral thing as the evidence has fallen out. And, of course, there's the evidence of what she told her cousin, if you accept the cousin's evidence, in 1985, in which she did not identify any person in particular. She didn't identify this man as being the attacker. She described what you might think was a [different] incident, so it occurred at night, she was in bed and it involved a touching of her vagina. She didn't allege any form of penetration either digitally or by penis.

All of this you might think seriously undermines and weakens her identification of the defendant as the offender, and even if you accepted her evidence beyond a reasonable doubt that an incident as she's described, or incidents that she's described occurred, you would have to be very careful about accepting her evidence of identifying the defendant as the perpetrator beyond a reasonable doubt.

All of those issues in combination means that the fairness of the trial as the proper way to prove or challenge an accusation, a serious accusation, has necessarily been impaired by the long delay.

So, I warn you that it would be dangerous to convict upon [the complainant's] testimony alone, unless after scrutinising it with great care and considering all the surrounding circumstances relevant to its evaluation, and bearing this warning in mind, you are satisfied beyond a reasonable doubt of its truth and accuracy."

[18]  As to the disparities between the complainant's evidence and the terms of her complaints, especially her complaint to her cousin, L, the learned trial judge said:

"Mr Hibble, you may remember in his closing submission, concentrated on the evidence of the cousin. [L] says that this conversation occurred at [the complainant's] house at Garbutt in the bedroom in 1985. [The complainant], on the other hand, says she spoke to her cousin but she was - she, [the complainant], was 13 or 14, so some years later, and it was at [L's] house at Kirwan. You remember she said she felt safe there, because she didn't feel safe at home. So, that's a major difference to start with, but Mr Hibble, and you might think as I say, reasonably concentrated on the differences in what they recall being said. It's not suggested that [L] has any interest in the case. In fact, both women say that they are good friends, but [L] says she was told by [the complainant] in 1985, so on the prosecution case, this would've been very soon or the earliest complaint after the incident itself, that a male came into her room at Rasmussen at night, sat on the bed and then touched her on the vagina. So, firstly, she didn't purport to identify any person and in particular, she didn't identify this man. Secondly, she made no mention of a finger being inserted in her vagina. She made no mention of a party being on at the time. She made no mention of being raped. So, the defence say to you, that reflects, in their submission, on her reliability; it undermines her reliability very seriously, particularly in a case where her evidence is not supported by any independent evidence.

Similarly, in relation to the complaints in 1993. On the Crown case, this would be about nine years after the incident where both the stepfather and the mother say that she said that "[the appellant] assaulted me" and she said she told them that "[the appellant] sexually assaulted her". The defence submit to you that there's a significant difference there and the defence point to the fact that when the police were called, she decided not to proceed with the complaint.

So, that evidence is only relevant to her credibility, and that's the only way in which you can use it."

[19]  The learned trial judge's clear and thorough directions ensured that the jury were fully alert to what might arguably be regarded as reasons for declining to act upon the evidence of the complainant to convict the appellant.

[20]  The direction given by the learned trial judge in relation to the disparities between the complainant's evidence against the appellant and the terms of her complaint made to her cousin, L, did not understate the difficulty which L's version of the terms of the complaint posed for the Crown case.  L's version of the complaint to her differed from the complainant's evidence in two important respects:  first, as to the time and place where it was made; and, secondly, as to the terms of the complaint, that is, L said that the complainant did not assert that the complainant had been raped or that the complainant had identified the appellant as the assailant. 

[21]  Pursuant to r 94 of the Criminal Practice Rules, the learned trial judge commented in his report to this Court as follows:

"The evidence of [the complainant] was not supported by other evidence and despite a combined Domican/Longman warning, the jury convicted.

My concerns about the safety of the conviction arise as a result of the evidence of the first complaint witness, [L]. On the evidence, the first complaint was made 2-4 years after the incident. Apart from the differences between the complainants recollection of this occasion and the complaint witness, it is difficult to see how a reasonable jury could reject [L's] evidence which was to the effect that the complainant told her that someone had sat on the bed and touched her on the private parts which is significantly at odds with what the complainant told the jury occurred when she was 10.

There are other features in the evidence (e.g. the evidence of the complainants parents) that (if accepted) must have impacted on the complainant’s reliability, however my major concern focuses on the evidence of the first complaint witness. For that reason, I was uncomfortable with the verdicts and concerned enough to make this report."

The issue for this Court

[22]  As I have said, the learned trial judge's directions to the jury ensured that the jury were fully alert to the problem which L's evidence posed for the Crown case.  Nevertheless, being fully alert to that difficulty, the jury were disposed to accept the complainant's evidence of the incident as reliable.  The question for this Court which is raised upon the appeal is whether, on the whole of the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt of the appellant's guilt. 

[23]  The approach to be applied by this Court in the resolution of this question was stated in M v The Queen,[3] where the majority of the High Court said:

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No 2] (1984) 153 CLR at pp 618-619; Chidiac v The Queen (1991) 171 CLR 432 at pp 443-444)." (emphasis in the original)

[24]  The jury were obliged to assess the reliability of all the witnesses who gave evidence.  The jury evidently preferred the evidence of the complainant to L's evidence in relation to the terms of the complainant's disclosure to L.  The question is whether the jury's evident preference for the evidence of the complainant to that of L, or, for that matter, that of the complainant's parents, was sufficient reasonably to exclude a reasonable doubt as to the appellant's guilt. 

[25]  So far as the accuracy of L's evidence as the complainant's account of the sexual assault is concerned, it can be argued that the complainant had greater reason to have an accurate recollection of the events in question than L had to recall the terms of the complaint made to her.  On behalf of the respondent it is argued that the jury could reasonably have entertained the view that L was likely to be less reliable than the complainant on the detail of the subject matter of the complaint to L. 

[26]  In this regard, the lapse of so many years since the events about which the witnesses gave evidence also means that there was scope for the jury to take the view that the memories of L and the complainant's parents were less reliable than the complainant's recollection.  Further, the circumstance that, according to L, the complainant did not refer to the appellant as the assailant when she first raised the matter with L, is arguably explicable on the basis that the complainant simply did not choose to recount all the details of the assault to L.  L did not suggest that the complainant said that she did not know who the assailant was or that he was someone other than the appellant.  Similarly, the jury might reasonably have regarded the circumstance that, in complaining to her mother and step-father about the assault by the appellant, the complainant did not choose to set out in detail the exact circumstances of the assault.  These choices on the complainant's part may be explicable by feelings of embarrassment on her part.

[27]  Further, the jury may well have regarded the complainant's evident reluctance to complain about the appellant to the authorities as a matter which bolstered rather than undermined her reliability.  Making a formal complaint to the authorities was plainly something which the complainant was reluctant to undertake.  The jury may well have thought that she would not have put herself through that ordeal without strong grounds to do so.  It may also be said that the complainant's evidence against the appellant was uncontradicted. 

[28]  All that having been said, and "making full allowance for the advantages enjoyed by the jury" in seeing and hearing all the witnesses give evidence, I consider that the difficulties in the Crown case were such that a doubt as to the guilt of the appellant cannot reasonably be excluded. 

[29]  The complainant's evidence related to events which occurred more than 20 years before she gave evidence.  Her account as to when the offences actually occurred was unrelated to any of the milestones in the complainant's life.  The complainant's account at trial of the incident diverged seriously from L's evidence of the complainant's account to her.  The evidence of L was not only inconsistent with the complainant's evidence at trial, but actually destructive of the reliability of the complainant's evidence about the incident in question.  If L's evidence of the complainant's account was reliable, it inevitably gave rise to a doubt about the reliability of the complainant's account. 

[30]  L was called to give evidence by the Crown; no doubt was cast upon her honesty by any party at trial.  L's account of the complainant's version of the incident cannot rationally be dismissed as a faulty or fragmentary recollection of the version given by the complainant in evidence.  L's evidence was not of a faded or partial memory of a version of events which was consistent with the thrust of the complainant's evidence.  To the contrary, L's evidence contained a clear and unequivocal description by the complainant of an event radically different from that of which the complainant gave evidence. 

[31]  The jury could not reasonably have disregarded L's evidence as that of a dishonest witness; and if her evidence is taken to have been honestly given, it was so radically at odds with the complainant's evidence at trial that the two accounts cannot stand together.  While the jury might have been disposed to regard the complainant as the more reliable of the two witnesses, there was no rational basis on which the jury could have excluded beyond reasonable doubt the possibility that L's evidence of the account given by the complainant to L was accurate.  If L's evidence was accurate the complainant's evidence against the appellant could not be accurate.  However credible the complainant may have appeared as a witness, and however favourably the jury may have been impressed by her demeanour, these considerations cannot afford a reasonable basis for the wholesale rejection of L's evidence which is necessary if the verdict is to be sustained. 

[32]  In summary, the vagueness of the complainant's evidence as to when the offences were said to have occurred, the lapse of so many years since the occurrence of the events complained of, the absence of any real attempt on the part of the complainant to explain that extraordinary delay or her belated decision ultimately to complain to the authorities, and, most importantly, the serious discrepancies between the evidence of the complainant and the evidence of L mean that I am unable to exclude the significant possibility that the appellant has been wrongly convicted. 

Conclusion and order

[33]  Even though the assessment of the complainant's reliability was undertaken by the jury in the light of the strong directions of the learned trial judge, and even bearing in mind that the learned trial judge's directions were apt to ensure that every point reasonably arguable for the appellant was squarely raised for the consideration of the jury which can be taken to have weighed each of those points in their assessment of the complainant's reliability, there remains, in my respectful opinion, a significant possibility that an innocent person has been convicted.  Accordingly, the appeal must be allowed.

[34]  I would order that the appeal be allowed.  The conviction must be quashed and a verdict of "not guilty" entered. 

[35]  MUIR JA:  I agree with the reasons of Keane JA and with the orders he proposes.

[36]  P LYONS J:  I have read the reasons for judgment of Keane JA and agree with the order proposed by his Honour and his reasons.