SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The appellant, who is presently detained as a classified patient in an authorised mental health service, was convicted of one count of taking a child under 12 for immoral purposes and one count of rape.  The complainant, B, was a nine year old girl.  On 6 September 2008, she was with her father watching buskers in the Fortitude Valley Mall and left his side briefly to fetch a straw for her drink from a nearby shop.  The case against the appellant was that he had taken her from the Mall to his nearby hotel room and forced her to suck his penis.

[2] Section 219 of the Criminal Code creates the offence of taking a child under a prescribed age for the purpose of doing a prescribed act.  It also makes it an offence to entice away a child.  At the outset of the trial, the Crown prosecutor particularised the taking of B as the appellant’s compelling the child to go with him by indicating that he had a knife.  It was, the prosecutor emphasised, a case of taking by threat, not by inducement.  Similarly, in his closing address, the prosecutor reiterated that the Crown case was that the child was taken by the threat of the use of a knife, not through any enticement; it was a forcible taking. 

[3] The appellant appeals the convictions on the ground that the verdicts were “unsafe and unsatisfactory” (or, in terms of s 668E(1), unreasonable).  He also contends that the trial judge made a number of errors: failing to exclude part of B’s recorded police interview; failing, in his summing-up, to identify the real issues for the jury and to relate the evidence in the case to those issues; failing to give a Robinson[1] warning; and failing to make available to the jury two discs containing closed-circuit camera footage of the appellant and B, and to inform the jury that it was entitled to have those discs played while considering its verdict.

The effect of the appellant’s detention for assessment

[4] The first issue which arose on the appeal was the effect, if any, of the appellant’s detention for assessment at The Park Mental Health Service.  He had been moved there after his conviction while awaiting sentence, pursuant to a custodian’s assessment authority made under ch 3 pt 3 of the Mental Health Act 2000.  Section 64 of the Act specifies the persons to whom that part (headed “Persons having a mental illness in lawful custody”) applies.  The only part of s 64 capable of applying to the applicant reads as follows:

“a person in lawful custody who –

...

(b) has been committed for trial or sentence on a charge of an indictable offence and is in custody pending the person’s appearance at a criminal sittings of the Supreme Court, District Court or Childrens Court for the charge ...”

Section 75 of the Act was the provision of particular concern here; it provides that on a person becoming a classified patient (as a prisoner taken to a mental health service for assessment becomes, until the happening of one of a number of specified events),

“… proceedings for any offence, other than an offence against a Commonwealth law, against the person are suspended until the person ceases to be a classified patient”.

[5] Both counsel on the appeal drew these provisions to the Court’s attention, although neither contended that they were necessarily applicable.  The issues raised were whether the appellant fell within the description in s 64(1)(b) so as to make him a person whose assessment could be authorised and, if so, whether his appeal was suspended by virtue of s 75.

[6] It seems to me that the better view of s 64(1)(b) would be to read it as embracing the appellant’s situation: that he has been committed for trial (a trial which has in fact taken place) and remains in custody pending his appearance at a criminal sittings of the District Court for sentence on the charges.  That seems more consistent with the purpose of the Act, which includes the involuntary assessment and treatment of persons with mental illnesses,[2] a purpose to be achieved by the Act’s provision for the “detention ... assessment and treatment of persons having, or believed to have, a mental illness”.[3]  The alternative would be to regard the appellant as falling into a hiatus in which, despite his possible mental illness, there was no means to ensure his removal for assessment while incarcerated.

[7] But I do not find it necessary to reach a concluded view on the matter because, in any case, it seems to me that an appeal against conviction or sentence does not constitute “proceedings for any offence ... against [a] person”.  It is a matter of ordinary language; and there is no occasion to reach a different view, given the concern of the Act, articulated in s 4, with the safeguarding of the rights of persons with mental illness.  One could see, consistently with the policy of the Act, why a classified patient should be protected from the continuation of proceedings against him; but it does not follow that that person’s rights of appeal should be suspended (although it might, in some circumstances, be appropriate to adjourn the appeal of a person suffering mental illness).  My conclusion, then, is that this Court can properly proceed to deal with the appeal.

The complainant’s evidence

[8] The Crown case relied heavily on B’s evidence, which was before the court in the form of a video recording of her police interview and her pre-recorded trial evidence.  The interview was recorded on the day of the alleged offences. Unfortunately, the quality of the tape is poor; it is intermittently too grainy to make anything out; and B has her back to the camera for much of the interview.  B, who otherwise seems from the tape a cheerful, forthcoming child, made it clear that she was not at ease talking about her experience that afternoon.  Her account emerged in the interview in a disjointed, non-sequential way, with some odd details; it is difficult to understand the order and location of the events described. 

[9] B began by saying that she had been having fun with her father at the performance when “the man took me”.  He had put her in a room, and asked her if she wanted a milkshake, which she refused.  She ran out and got into a lift; the man told her what number to press.  The lift went down; she ran out of it and knocked on doors, but no-one answered.  She thought she heard the man coming, so she hid.  Then she saw a sign saying “Enter” and went to it, but could not open the door.  She looked under a mat, however, and found a key which opened it, then put it back under the mat, closed the door and ran out.  A woman helped her, and they found her father. 

[10]  Asked to describe the man, B said he was black-skinned “like my mother” (who had, in fact, olive skin), with brown or blue eyes.  He was wearing a black jacket and had brown hair.  There was a desk in his room, and he had cigarettes.  He had two knives in his room and one in his pocket; she made a drawing of them in the course of the interview.  The man had picked one up; she described it as brown with “sharp things” (presumably serrations).  Elaborating on her statements about what had happened when she first saw the man, she said that he offered her a milkshake, but she had just had a drink and she said, “No”.  He stepped on her foot and made it sore. 

[11]  B made a curious statement about having three lipsticks and being about to use one, but putting it back in her pocket because the man was “nearly done”.  Asked what had happened then, she said he had told her to suck him; but this had happened in his room.  Directed back to the time when she had first seen him, B said that he had been staring at her and at the band playing.  She wondered if he was going to steal the money the band had collected; later, when he “stole” her, she thought he was a “child-stealer”.  On the subject of what had happened in the man’s room, she said that he had popped her blister with a knife, indicating a blister on her hand.  Later she repeated that he had told her to “suck his noogie” (a word she used for penis).  She demonstrated to the police officer how he had put a knife to the back of her neck, under her hair.  He had one glove on when he did that.  The man told her to get out when she screamed, so she ran away and got into the lift where she pressed the down button.

[12]  B was asked again to expand on what had happened when she first encountered the man.  She said that he had told her he had a knife in his pocket.  She was scared and thought of running away, but he grabbed her by the hand.  She was wearing her great-grandfather’s military ribbons and the man took hold of them.  They went in an elevator.  He pressed the number.  They went to a room where he had unlocked the door, and once inside, he relocked it. 

[13]  The police officer asked her to tell him everything about that.  The passage which follows in the transcript of the recording is controversial.  B continued,

“Then, he told me to suck you know. 

...

And I didn’t do it.  I screamed.  He told me to do it and I screamed once and then he, I hurt it (these words are not entirely clear) and I (the words which follow are either ‘I did it’ or ‘I didn’t’).  I was scared and then um he said more. 

…

And I screamed he said to get out.”  (Words in italics added).

[14]  Later, B reiterated that the man had told her to suck his “noogie”.  After saying that her mother had some “sexable” movies for the purposes of her work which she, B, did not watch, she volunteered that the man told her to “take off [her] clothes and hop on the bed.”  She added that the man had chains in his room.

[15]  B gave evidence some 14 months after the events.  She had just turned 11.  The prosecutor questioned her and received responses as follows: 

“Now, you’ve talked about this man’s rude part, did he say anything about his rude part when he was with you in the room?--  He told me to suck it.

And did you actually suck it?--  Yes.

Did his penis go inside your mouth at any stage?--  Yes.”

B identified the drawing she had made during the police interview of three knives,  one serrated, two unserrated.  She said that the serrated knife was on the desk in the room to which the man took her, as was another long, unserrated knife which she had drawn with dots on its handle.  The man had had a long knife without serrations in his hand. 

[16]  Cross-examined, B said that the man had not offered her a milkshake and there had been no such conversation.  She went with him because he said he had a knife in his pocket and that if she did not go, he would hurt her.  She had had a blister on her big toe which he stood on, popping it.  She thought, but was not sure, that the man might have grabbed her by the arm when she was still in the street.  The knife he showed her in the street had a zig-zag on the blade, which she had not been able to draw.  The man had not had a glove on in the street, but he had produced a black glove from his pocket when she was in the room with him.  When she was in the room he had told her to get down on her knees.  She confirmed she had seen some chains in the room, but she could not remember if they were big or small.  She thought they were grey in colour.  It was put to her that the man had not shown her his penis and asked her to suck it.  She said that it was true.  To a further suggestion that she had not been with him long enough for that to have happened, she responded, “I did - yeah, I actually did suck his you know”.

Other evidence

[17]  Mr Foo, who had in 2008 worked as general manager of the hotel to which B went, knew the appellant and confirmed that he was a resident there in that year.  Occupants had keys with which to let themselves into the hotel.  According to Mr Foo, it would have taken about a minute for an individual to let himself in through the front door and, if the lift were immediately available, to get to the appellant’s room.  A police offer gave evidence that in the week before the trial (in February 2010) he had ascertained that it took between 32 and 48 seconds to walk from the door of the appellant’s room, take the lift and reach the exit door to the Mall.  Rather surprisingly, there was no objection to the latter evidence, despite the absence of any confirmation that the lift was the same one operating two years earlier, or was in the same condition.

[18]  Mr Hammid, a security officer at the hotel, said that on the day in question he saw the appellant enter the hotel with a small girl behind him.  Mr Hamid described their entrance,

“He just opened the door – the girl was dancing, actually, walking up dancing, and I thought she was his daughter.”

The appellant had unlocked the door, held it open to allow the girl to enter and then walked in behind her.  Mr Hammid saw them get into the lift.  Later he saw the child again with her (real) father, crying and in a terrified state.  In a conversation about what had happened, she pointed at her father’s groin and said, “Can you suck?”

[19]  A café manager working in the Mall said that she had encountered B crying and running in the Mall.  She had considerable difficulty calming the child, who told her that “a man up there” (pointing to the hotel) had put a knife to her throat and said that if she didn’t suck “his thing”, he would kill her.  She began to take B towards the police station, but met the child’s father en route.  B’s father, too, described her distraught state when he found her.  He said that she told him, “some guy took her”; she had to follow him.  He thought that she had said the man had a knife and threatened that he would use it if she did not come.  She also had used the words, “I want to show you something”. 

[20]  B’s father said that he and the child went then to the hotel, where she pointed at the stairs and said that the man had taken her “up there”.  At the front of the hotel they spoke to Mr Hammid, who asked B what colour skin the man had and she indicated that it  was similar to his (Mr Hammid’s), skin which was dark.  B’s father could not recall anything else she had said at that stage.  He took B to the Fortitude Valley Police Beat where she was interviewed.  B’s father described her usual temperament as “charismatic” and “very happy-go-lucky”.

[21]  Police officers went to the hotel.  The appellant’s room was empty, but they remained there until he returned at 7.00 pm.  He told them that he had been drinking for three days, had blackouts and could not remember anything.  One officer said he smelt of alcohol; the other recalled an unpleasant body odour as if he had not bathed for several days.  They did not find a glove or any knife on him, although a single unserrated knife was found in his room.  A swab was taken of its blade, but it did not yield any evidence.  No chains were located in the room.

[22]  The appellant was examined that night by a forensic medical officer.  The latter noted a very small superficial abrasion on the appellant’s penis, which he considered had occurred within the last day or two.  He also observed that the appellant was smelly and unclean.  DNA samples were taken.  A partial profile of female origin was extracted from DNA taken from the appellant’s penis but it was not that of B; it belonged to an unknown female.  B was also examined that evening, in her case by a paediatrician who recorded that she had a blister on her hand, from which there was no bleeding or discharge, and an abrasion on her toe, which might have been produced by someone standing on it.

[23] A disc of footage from a closed-circuit camera on the Mall was tendered and became Exhibit 9.  That footage shows the appellant emerging from a shop with B just behind him.  The appellant walks relatively quickly along the crowded Mall with B about a metre behind him, apparently hurrying to keep up.  The appellant does not, at any stage, look behind, nor does B draw level with him.  When the appellant reaches the end of the Mall, he veers to the right, going to the hotel entry, without looking behind him.  B, on reaching the same point, looks to see where the appellant has gone, apparently catches sight of him and turns sharply to the right to follow him. 

[24]  A second disc, from closed-circuit cameras in the hotel, became Exhibit 10.  The footage from the hotel cameras similarly shows the point at which the appellant moved to the right to enter the hotel and B had to change course to follow him.  They enter a covered beer garden area, with the appellant striding about a metre and a half to two metres ahead of B, while she walks briskly behind him, past a musician and drinkers at the tables.  The hotel cameras show the appellant and B arriving at 14:28:12 (or 2.28 pm and 12 seconds), and also show the appellant leaving the hotel at 14:31:38 (or 2.31pm and 38 seconds).  It was not established that the times shown were precisely accurate, but it was accepted that they indicated the time lapse involved; in other words, that the appellant had left the hotel 3 minutes and 26 seconds after his arrival.  There is a glimpse of B shortly afterwards, apparently in the beer garden area, but it is too brief to glean anything of her state from it.

The summing-up

[25] The trial judge gave a series of conventional directions before commenting on the questions the prosecutor had asked B about whether she had sucked the appellant’s penis.  There was, his Honour instructed the jury, no value in B’s answers, because of the leading nature of the questions, and they could not be used as evidence.  The learned judge gave the jury a Markuleski[4] direction before turning to the elements of the offences.  He reminded the jury that the prosecution case was unequivocally that the child was taken away forcibly by means of the threat of using a knife for the purpose of unlawfully and indecently dealing with her.  He referred the jury to the evidence which was what the child had said herself, and cautioned them that what she had said to her father about being taken was hearsay and could not be relied on as evidence.  But although in the jury’s absence his Honour had expressed the view to counsel that on viewing the camera footage, it would be “very hard to find that there was a taking”, he did not make any mention to the jury of the footage’s significance.

[26] There was, the learned judge pointed out, no contest about B having gone to the hotel room with the appellant; the prosecution’s submission was that that could only have been for the purpose of a proposed indecent dealing.  His Honour advised the jury to focus on whether there was a taking in the way he had described.  If the jury found, on the evidence, that B had been with the appellant in the hotel room, the next question was whether anything had happened there; that was the subject of the second count, of rape.  In a passage criticised by the appellant here, his Honour said this:

“The prosecution case does rely virtually entirely on the complainant, so you must scrutinise her evidence carefully.  There is nothing, though - however, about her evidence which means that you could not accept it.”

[27]  The learned judge explained that penetration to the slightest degree was sufficient to establish rape.  He concluded this part of his summing-up by posing a series of questions to the jury for them to answer:  whether B had come into contact with the appellant; under what circumstances she had gone to the hotel; did she go to the appellant’s room; if so, what had happened in the appellant’s room.  Oddly, although the learned judge had expressed the view in the absence of the jury that his impression was that B had said she “didn’t” [suck the appellant’s penis], he did not give the jury any direction as to the importance of reaching a conclusion as to what the child had actually said.  To the contrary, in the context of instructing the jury as to possible alternative verdicts on the rape count (attempted rape or indecent dealing), he made the following remarks:

“So, in this case, for example, depending on the facts you might find, the attempt was made out but the entire offence was foiled, that was rape, because the child was able to get away before anything happened, although, of course, that’s not her evidence.  She says the act actually happened.  So you see that will depend on the view of the facts that you find.” (Italics added.)

[28]  His Honour gave directions on preliminary complaint (as made to the woman who assisted B in the Mall and to Mr Hammid) as well as the relevance of B’s distressed condition.  He summarised the Crown and defence cases, accurately, with respect, describing the defence as having made three points:  that there were too many inconsistencies in B’s evidence for it to be accepted; that the short interval of time involved made it impossible for events to have happened as she described; and that there was no forensic evidence to support B’s claims. 

[29]  After the jury had retired, there was some discussion as to which exhibits should accompany them into the jury room.  Exhibit 9, the footage from the Mall, was not mentioned.  Of Exhibit 10, the footage from the hotel camera, his Honour said that it was,

“unhelpful because they simply can’t play it anyway.” 

Remarkably, defence counsel responded,

“I think it’s particularly unhelpful, your Honour.  It contains no information that they can reference anything from – the times have been made pretty clear to the jury in your Honour’s address and my friend’s and my own speeches.”

The position seems to have been that the discs containing the footage could only be played on a computer and none was available to the jury during their deliberations.  The result was that they did not have the opportunity to see either Exhibit 9 or Exhibit 10 again, nor were they reminded that they could have access to those exhibits.

The taking for immoral purposes count

[30]  The appellant’s contention was that a jury acting reasonably, having seen the evidence of B hurrying along behind the appellant, and heard Mr Hammid’s evidence that she had arrived at the hotel “walking up dancing”, could not have found that B had been taken under any sort of threat.  This is not a case in which the jury had an advantage not available to this court in assessing the crucial evidence; and having viewed the footage, I think the appellant’s submission must be accepted.  B’s demeanour does not suggest fear, but rather, an eagerness to keep up with the appellant.  Her gait along the Mall is not quite the dancing of Mr Hammid’s description, but there is energy and purpose in her step. 

[31]  As counsel for the appellant pointed out, had B at any stage wished to part company from the appellant, all she had to do was stop walking.  He was not looking behind and would not have seen her do so.  There was no shortage of people around from whom she could have sought help, and her behaviour in her recorded interview and her father’s description of her suggested that she was an outgoing, confident child.  The footage suggests that she is following the appellant by choice; it would be open to infer that there had been some enticement to her which accounted for her eagerness to follow him, but that was not the Crown case.  I do not think it was open to the jury to be satisfied beyond a reasonable doubt that B was taken by the appellant under threat.  I would set aside the verdict on that count as unreasonable, and would enter an acquittal.

The rape count

[32]  The appellant’s argument as to the unreasonableness of the rape verdict was two-pronged.  The passage in the interview where B said the words which might have been “I did” or “I didn’t” was evidence of such poor quality that it ought to have been excluded (despite the absence of any objection) in the exercise of the discretion created by s 98 of the Evidence Act 1977 (Qld) (on the ground that its admission was “inexpedient in the interests of justice”) or the common law discretion to exclude evidence as unfair, preserved by s 130 of the Act.  Alternatively, the evidence was so uncertain that taken with the other implausible aspects of B’s evidence (as to being taken by threat from the Mall, having her blister popped by a knife, having found a key with which she escaped from the hotel, wanting to apply lipstick and seeing the single glove and chains) any conviction on it was unreasonable.

[33]  But, it seems to me, the contentious passage in the recorded interview was properly left for the assessment of the jury.  It could form its own opinion of what the child said, and, in doing so, was entitled to take into account that what she said immediately following the disputed answer:

“I was scared and then, um, he said more.”

Although his counsel suggested that might merely have meant that the appellant had said something else, it seems much more likely to have related to the appellant’s demanding more of whatever B had been obliged to do at that stage.  If B’s words were, indeed, “I hurt it”, they are suggestive of some physical contact with the appellant’s penis.  The challenged portion of the interview was not the only evidence capable of supporting a conclusion that the rape had occurred.  The learned judge’s direction to the jury that they should not make any use of B’s answers in the pre-recorded hearing about whether she had actually taken the appellant’s penis in her mouth was over-generous.  Although the weight to be given to those answers was lessened by the fact that they were made in response to leading questions, they were not without any probative value. 

[34]  So too, B’s volunteered statement in the course of cross-examination that she “actually did suck his you know” was evidence which might be regarded with some caution, given the sequence in which her answers had emerged, but it was not entirely without weight.  I do not accept that the trial judge was obliged in the exercise of his discretion, either under s 98 or at common law, to exclude the evidence, or that its admission gave rise to a miscarriage of justice.  And although there were indeed some odd elements in B’s account which could give a jury pause, they were not fatal to acceptance of what she said about the incident giving rise to the rape count.  In my view, it was open to the jury to convict on that count.

[35]  Unfortunately, however, a combination of considerations leads me to the conclusion that the verdict on that count should be set aside and a new trial ordered.  Firstly, whether B said, “I did” or “I didn’t” in relation to whether she had sucked the appellant’s penis was crucial.  Plainly, if jury members held a doubt on the subject and thought that B might have said “I didn’t”, it was not open to them to be satisfied beyond reasonable doubt of the rape count; the answers B subsequently gave in her pre-recorded evidence would not have been such as to overcome that initial denial.  The learned judge, however, instructed the jury that B’s evidence was that “the act actually happened”, although this plainly was controversial.  The jury should have been told that it was essential that they come to a clear view that the words used were “I did it” before they could convict. 

[36]  Secondly, it was, in my respectful view, an error on the part of the learned judge to tell the jury that there was nothing about B’s evidence which meant that the jury could not accept it, when there were a number of peculiarities in it which, at least, warranted consideration.  Thirdly, the jury’s view of B’s reliability might well have been influenced by a re-viewing of the Mall and hotel camera footage.  Counsel for the respondent pointed out that they had seen the footage contained in Exhibit 9 twice, and that in Exhibit 10 three times.  But the material should have been made available to jury at the time when they were deliberating, and they should have been told of its availability.  The net result of those errors has been to produce a miscarriage of justice.

Orders

[37]  The verdict of guilt on the count of taking a child for an immoral purpose should be set aside and an acquittal entered.  The verdict of guilt on the count of rape should be set aside and a new trial ordered in respect of that count.

[38]  FRASER JA:  I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour.

[39]  WHITE JA:  I have read the reasons for judgment of Holmes JA and agree with the orders proposed for those reasons.