SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  The appellant was convicted on 28 May 2009 after a trial in the District Court of three counts of indecently dealing with a girl under 16 years of age and one count of indecent assault.  In counts 1 and 2 there were circumstances of aggravation that the complainant was under 12 years of age.  The offences in counts 1 and 2 were alleged to have occurred on a date unknown between 31 August 1969 and 10 November 1972.  The offence the subject of count 3 was alleged to have occurred on a date unknown between 31 August 1969 and 10 November 1974 and the count 4 offence was alleged to have occurred on a date unknown between 1 January 1975 and 10 November 1977.  The complainant was born in November 1960.

[2] The grounds of appeal are that the jury's verdicts were contrary to the evidence, unsafe and unsatisfactory.  The appellant's argument is based on inconsistencies between the complainant's evidence on the trial on the one hand and a statement made by her to police officers in December 2007; complaints made to a distant relation, Miss Matthews; to her husband; to Mrs Beattie, a friend of the complainant's parents; and to Mrs Forsdyke, a friend of the complainant's parents.

[3] Six of the complainant's siblings and brothers-in-law gave evidence of the good character of the appellant and swore, in effect, that the complainant was a habitual liar.

The complainant's evidence-in-chief

[4] In her evidence-in-chief the complainant swore to four occasions on which she was sexually interfered with by the appellant at the house of the appellant and his wife.  On three of these occasions the complainant was in bed wearing a nightdress without underwear when the appellant entered the room, inserted a finger or fingers in her vagina and moved it or them around.  On the first of these occasions (count 1) the complainant had been sent to the appellant's house after having been accused by her parents of stealing money out of a money tin.  She thought she was in Grade 2 at primary school at the time.  Having regard to her date of birth she must have been between eight and twelve at the time of the incident.

[5] On the second occasion (count 2) the complainant had been sent to the appellant's house over an incident in which a neighbour had offered her some money to show him her "girlie bits".  She had taken the money and ran off with it without honouring her side of the bargain.  On this occasion the appellant's handling "just seemed to be faster or more fingers".

[6] On the third such occasion (count 3), speaking of the appellant, the complainant said:

"… he touched me and [the appellant's wife] came in and she said, [the appellant's name], and he said, 'I'm just checking to see if she is nice and warm.', and I recall her saying, 'Your coffee is made.'"

[7] The appellant thought that at the time of this incident she was in her first year of high school.  When her sister spoke to the appellant, "She was in the door, in the doorway of the bedroom."  The complainant described the movement of the appellant's fingers in her vagina as being like "a corkscrew".

[8] The remaining indecent act (count 4) took place when the complainant was in hospital, aged 15 or 16.  She had had renal surgery and was lying on her side with drains and tubes coming from her back.  In the course of a visit by her mother, sister and the appellant, she swore that the appellant had squeezed her pubic mound, saying, "'You need to behave yourself', or, 'You need to stop being silly', something along those lines …".  Immediately before being questioned about the count 4 incident, this exchange took place:

"So, we've spoken about these three incidents now.  Apart from these three incidents, did these types of things occur at a regular occasion?--  Yes.

And how regular would it have been?--  It happened all the time, every time I stayed there it just seemed all the time."

The complainant's record of interview of 23 December 2007 and her evidence on the committal hearing

[9] In cross-examination, the complainant confirmed that in her statement to police officers she identified the count 2 incident as the first time on which she had been interfered with by the appellant.  She confirmed that she was satisfied that in giving her statement she "had been as accurate as possible in respect of the detail".  She accepted that she never maintained that she had been subjected to penile penetration by the appellant and that, in giving her statement to police, she had specified the four incidents the subject of the counts on the indictment as the occasions on which she had been interfered with by the appellant.

[10] The complainant accepted that at the committal hearing she had said that there was "another incident before the money tin incident".  When taxed with that she said that "… if I can't remember it, I can't talk to you about it" and that she remembered it only "Terribly vaguely".

[11] The following exchange in relation to her evidence on the committal hearing occurred during her cross-examination:

"The question was, 'Well, how many times do you remember there being a big tickle?'  'Very clearly – very clearly – very clearly three times, and I remember not so clearly a couple of times more'?--  That's right.

How does that sit with your evidence that it was happening all the time?--  Because I was a child and it felt like it was all the time.  Every time I was there, it just felt like it was all the time."

[12] The "big tickle" was a description given to the insertion of a finger or fingers in her vagina.

[13] Asked what was happening in her family at the time she made her complaint to police in December 2007 she said:

"My mother had died that year and I had made a promise to myself that when my mother and father were dead, that I would do something because they were old and they love [the appellant] and they couldn't go through this."

[14] In cross-examination she said that her mother was 87 years of age when she died and that she had made "this complaint" to her mother before her father died.  Her father died in 1998. 

Evidence of the persons to whom complaints were made

[15] Mrs Beattie gave evidence of being told by the complainant of an occasion on which the complainant was in a room at the appellant's house when he "came in and I think he started to get a bit friendly and at the same time [the appellant's wife] opened the door and I think he nearly got caught but nothing was said and we just let it go."  Pressed to state what she could recall of the words used by the complainant she said, "Nothing occurred.  I think it might have been on the way of going on, starting and it was stopped by [the appellant's wife] coming in through the door." 

[16] The complainant's husband gave evidence that over the last 30 years he had had a number of conversations about the appellant with the complainant.  The evidence-in-chief in this regard included:

"And what was it that you - that she told you that he was doing to her?--  He was interfering with her.

Did she give you any details about what sort of interference there was?--  Yes.

…

Well, would you be able to comment what words she used when she---?--  Making - making my wife perform oral sex on him a number of times over the years when she was a child.

Did she tell you how old she was when these things were happening to her?--  Not really, no.

Apart from this oral sex - were those words that she used, oral sex?--  Yes.

Apart from that, what other things did she tell you about?--  He was using his fingers in - using his fingers on her, inserting his fingers in her vagina.

Did she tell you how often that would happen?--  She can't - wouldn't - couldn't recall all the time.  Couldn't recall.

Did she tell you whether that was happening at the same time when she was talking about the oral sex?--  Yes."

[17] Miss Forsdyke said that the complainant "blurted … out of the blue" to her that the appellant had sexually assaulted the complainant when she was about 12 or 13.  In cross-examination, Miss Forsdyke said that the complainant had said that she had been assaulted "more than once".  It was put to her that in giving her evidence at the committal hearing, she had answered "No" to the question, "She didn't [tell you] how many times she was interfered with?"  Miss Forsdyke said she didn't recall telling counsel that.  She was then asked, "So is it the case that she didn't tell you how many times she was interfered with?"  She responded:

"Okay, well, I know two - well, as I said then, you know, like today, I know of at least once, so - but, you know, I just did not go into the whole thing in detail with her."

[18] Miss Matthews, a distant relative of the complainant, gave evidence of having been told by the complainant that the appellant had interfered with her "most weekends as a child when they were sent over to stay at this particular family's residence."  She swore that she was told by the complainant that she was "raped" but that the complainant didn't go into any further detail about what had happened.

[19] Miss Hobson, a child safety officer, gave evidence that in assessing the complainant's suitability as a prospective foster carer "Sometime in the 90s" she was told by the complainant "that she had been sexually abused by a member of her family."  She could not recall whether it was a brother-in-law or a brother but recalled that "it was an older person".

Relevant principles

[20] The test to be applied by this Court in determining whether the verdict is unsafe or unsatisfactory is not in doubt.  It is the test formulated by the majority in M v The Queen.[1]In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ, said:[2]

"Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen.  That test was accepted and applied by this Court in Jones v The Queen.  In M, it was pointed out that it was once common for expressions such as 'unsafe or unsatisfactory', or 'unjust or unsafe', or 'dangerous or unsafe' to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law.

Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'"  (footnotes deleted)

[21] In their joint reasons in MFA v The Queen, McHugh, Gummow and Kirby JJ said:[3]

"The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'.  In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:

'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.'''

The respondent's submissions

[22] Counsel for the respondent submitted that the complainant gave her evidence forthrightly, that her evidence "conveys the impression of appropriate levels of surrounding detail to critical events", that she made appropriate concessions and dealt well with cross-examination.  It is submitted that her account was supported by the complaints to Mrs Beattie, Miss Forsdyke and her husband.  In relation to the latter, it was submitted that the complainant was not asked about oral sex and it may be that in referring to oral sex the husband misunderstood something said by the complainant.  In relation to Miss Matthews' evidence, it was submitted that "some non-lawyers use the expression [rape] as a generic reference to unwanted sexual contact" and that although Miss Matthews no doubt understood the allegation as being one of penile penetration, the complainant may not have meant that.  It was submitted also that inconsistency about the order in which the incidents occurred and about her description of other uncharged incidents, was explicable by the antiquity of the events in question.

Consideration

[23] To my mind:  the relating of the four specific incidents to police officers in 2007 without a suggestion of other sexual misconduct; the expansion of her evidence on committal to encompass digital penetration on a couple more occasions (not remembered "so clearly") and the evidence on trial that it "happened a lot", necessarily casts considerable doubt on the reliability of the complainant's evidence.  In this regard it is relevant to bear in mind the complainant's evidence to the effect that she had "made a promise" to herself to "do something" about the appellant's conduct once her parents died.  It is thus reasonable to expect that the complainant would have given extensive thought to her long deferred complaint before making it.  It would thus be surprising that if the complainant had a recollection of a more general pattern of abuse at the time of her first complaint she did not divulge that to the police officers who interviewed her.  That doubt about the complainant's reliability is strengthened when regard is had to the evidence of the complaints made by the complainant.

[24] It is difficult to regard the evidence of her husband of being informed by the complainant that the appellant made her perform oral sex on him "a number of times over the years when she was a child" as arising from a misunderstanding of accounts of digital penetration given by the complainant.  The husband's recollection was that he was told that digital penetration happened as well as the oral sex.

[25] Mrs Beattie was informed of an occasion, which appears to relate to count 3, in which the complainant described to her in some detail an attempted sexual dealing which was aborted when the appellant's wife came to the door of the bedroom in which the complainant was lying.  The giving of such an account by the complainant sits uneasily with a recollection of many occasions on which digital penetration occurred or even with a clear recollection of three occasions on which the complainant was digitally penetrated by the appellant.

[26] Miss Matthews' evidence of being told that the complainant had been raped by the appellant when she was about 12 or 13 at the appellant's house is also inconsistent with the complainant's account of the four specific incidents spread over a lengthy period when she was aged between about 10 and 15.  The use of the word "rape" is troublesome also.  That was not a description, it would seem, provided to the police.  It was not used by the complainant in evidence and it may be doubted that, at least at the time of the events in question, digital penetration was likely to be described by the complainant as rape.  Miss Matthews confirmed in cross-examination that the complainant made it clear that her reference to rape meant penile rape.  The force of that evidence however was somewhat diminished by Miss Matthews' evidence that the complainant did not "go into the gory details" of the appellant's alleged conduct.

[27] The fact that the complainant may have impressed the jury as a credible, convincing witness was not sufficient to overcome the doubts necessarily caused by the escalation in the alleged frequency of the alleged indecent dealing, by inconsistencies in the various complaints and the inconsistencies between the complaints, the statement to police and the complainant's evidence on the trial.  If the complainant had a recollection at the time of first being interviewed by police officers of being regularly interfered with by the appellant it is unlikely that she would have failed to have spoken about it.

[28] The complaint evidence shows that the complainant gave very different accounts at different times of the nature and frequency of the misconduct she was alleging.  It may have been possible for the jury, having heard all the evidence and having seen and heard the complainant, to have concluded beyond reasonable doubt that there had been some sexual impropriety on the part of the appellant.  I am unable to conclude, however, that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of the specific offences charged.

[29] The matters identified above combine to demonstrate that the complainant was an unreliable witness, not merely as to peripheral matters but concerning matters central to the prosecution case.  Regardless of how well the complainant gave her evidence and acquitted herself in cross-examination that unreliability remains.  In that regard, the limitations inherent in basing an assessment of credibility on demeanour are now well recognised.[4]  There were no objective facts which supported the complainant's evidence.  Before and after her complaint to the police there were very substantial inconsistencies in her accounts of relevant events.  In these circumstances the jury's advantage in seeing the witnesses and hearing the evidence cannot have sufficed to enable the jury to be satisfied beyond reasonable doubt that the offences alleged were committed.

[30] There was also the complainant's own concession that she had been "disruptive in [her] family all [her] life" and the strong evidence by a number of family members as to her general lack of veracity.  This evidence, even though much of it came from persons hostile to the complainant and favourably disposed to the appellant, required that her evidence be approached with caution.

[31] There was another aspect of the case which gives rise to concern.  Defence counsel, in cross-examining the complainant's husband of her complaints to him about the appellant's sexual misconduct asked, "Did she tell you anything else?"  The answer was:

"There was a case where she said she was taken home by [the appellant] and [the appellant's wife] approximately around her 10th birthday - I believe it was before approximately her 10th birthday - where she was bleeding between the legs and she had bruises between her legs."

[32] Having received this answer, defence counsel said, "I have nothing further".  There was no re-examination.

[33] Defence counsel had been told by the prosecutor before commencing his cross-examination that the complainant had made such a complaint to her husband but that the evidence would not be led because of uncertainty "as to the type of activities that may have caused the injury and/or the bleeding."  He had reason to believe that the answer would not be given.  Considerable discussion took place between the primary judge and counsel as to the appropriate course to follow.  Defence counsel was told that if he intended to submit in addresses that the evidence showed the complainant to be unreliable as she had not given any such evidence herself, the primary judge would permit the complainant to be recalled to give further evidence.

[34] Defence counsel intimated at one point in the discussion that he might apply to have the jury discharged.  Eventually, the matter was left on the basis that counsel would consider their respective positions overnight.  The next morning the primary judge was informed that defence counsel would not seek to have the jury discharged and that he would not address on the subject evidence.  The primary judge said that the jury would be directed that they could not use "any complaint evidence as truth of the facts and that its purpose will be to assess credibility or the lack thereof through inconsistencies or consistencies, and in those circumstances it seems to me that if there is disadvantage, it is for the prosecution."  The subject evidence was not referred to by counsel or the primary judge in addresses.

[35] In my respectful opinion, the subject evidence was, potentially, highly prejudicial to the appellant.  It was given by the complainant's husband as part of his account of what he had been told by the complainant about the appellant's sexual interference.  Because there was no direction in relation to the evidence and no submissions on it, there is no reason to suppose that the jury would have drawn any inference adverse to the complainant from her failure to mention the matter in her evidence.  The conventional direction, which the primary judge gave, as to the limited use to which such evidence could be put was insufficient, in my mind, to defuse the evidence.  It was open to the jury to conclude that it amounted to unchallenged evidence corroborating, in a general way, the complainant's account that she had been indecently dealt with.  The evidence was irrelevant.  There was nothing which established a material connection between it and the complainant's evidence of the appellant's sexual misconduct.  There is considerable merit in the submission by counsel for the respondent that the appellant is bound by the way in which his counsel conducted his case.  No doubt for this reason the point was not a ground of appeal.  I do not consider however that the evidence is irrelevant to the question of whether there has been a miscarriage of justice.

Conclusion

[36] For the above reasons, I would allow the appeal, order that the convictions be set aside and direct that a verdict of acquittal be entered.

[37] FRASER JA:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with those reasons and with the orders proposed by his Honour.

[38] CULLINANE J:  I have read the reasons of Muir JA in this matter and agree with those reasons and the orders proposed.