SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with White JA's reasons for dismissing this appeal against conviction.

2. FRASER JA:  I agree with the reasons for judgment of White JA and the order proposed by her Honour.

3. WHITE JA:  After a trial, the appellant was convicted of two counts of indecent treatment of a child under the age of 16 (s 210(1)(a) of the Criminal Code) and one count of rape (s 349 of the Criminal Code) on 15 March 2011.  He was sentenced the following day to seven years imprisonment for the rape and three years imprisonment on each of the indecent treatment counts to be served concurrently.  He appeals against his convictions on the ground that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.^[1]  Such a challenge requires this Court to decide whether, on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged.^[2]

Circumstances of the offences and subsequent complaint and investigation

4. The complainant was born in November 1995. The date charged in the indictment for counts 1 and 2 was a date unknown between 1 January 2008 and 9 February 2009 and for count 3, between 1 January 2009 and 9 February 2009.  Counts 1 and 2 occurred on the same day and count 3 some months later and at a different place.  There were allegations of other, uncharged, discreditable conduct between the time of counts 1 and 2 and count 3.

5. On the afternoon of 9 February 2009 the complainant went to see the school chaplain, a woman to whom she had spoken on a number of occasions previously about personal matters. She told her that her grandfather had licked her vagina and that it had happened the day that the Year 8 students had started school that year.^[3]  She told the chaplain that the conduct had been occurring for some time, that she had wanted to tell her grandmother but felt that her grandfather was “always around” and that she had not been able to tell her parents about it.  The chaplain immediately stopped the conversation and took the complainant to the school guidance officer.  Complaint was made immediately to police and the complainant took part in a formal interview pursuant to s 93A of the Evidence Act within an hour of speaking to the chaplain.  It will be necessary to refer to that interview more fully. 

6. Very little background information was given about the complainant’s family to the jury. The prosecutor called only the complainant, the chaplain and a doctor.  The appellant did not give or call evidence.  Accordingly, what understanding there is can only be gleaned from fairly unstructured half sentences in the interview and the pre-trial recorded evidence from the complainant who was aged 13 at interview.

7. It appears that the complainant was living in the first half of 2008 with her mother, stepfather and younger siblings but visited her grandparents, of whom she was fond, from time to time, sometimes alone and sometimes with her younger sister. She said in cross-examination^[4] that she “got abused by [her] parents”^[5] and was put into foster care.  She lived with a family from Father’s Day until towards the end of 2008 and, with her siblings, went to live with her grandparents on 12 December 2008. 

8. Counts 1 and 2 occurred at a caravan park where the grandparents were then living, it would seem, in a small demountable home. About 7.30 pm the complainant and her grandfather were sitting together on a couch in the living area watching television – the programme was Funniest Home Videos.  At the end of the demountable was a bedroom with a door leading into the TV area.  That doorway was closed only by a “shower curtain”.  The couch was near that doorway.  The complainant’s grandmother had already gone to bed in the bedroom. 

9. The complainant described the appellant placing his arm behind her back, stroking her from her neck down her back to the top of her bottom.  She described his thumb as being where her ribs were.  That stroking continued for about five to ten minutes.  The appellant then moved the complainant around so that she was lying on the couch, pulled her pyjama pants down, spread her legs apart, and, whilst kneeling on the floor, starting licking her vagina.  The complainant described the action of his tongue circling her vagina externally and going up and down.  She did not feel anything going inside.  That activity lasted for about five minutes.  The appellant then stood up, pulled his penis out from the side of his boxer shorts, got on top of the complainant, put his leg over and inserted his penis into her vagina.  She said she knew that he had penetrated her because it hurt.  She described his penis as being hard and round “like the end of a hammer” with loose skin; she had not seen it because it was dark.  In response to questions in cross-examination she said that the appellant used no lubricant and agreed that there was “a fair bit of pain” but she did not cry out for her grandmother.  The episode continued with the appellant moving up and down for about five minutes or more.  The complainant tried to push him away, adding in her interview “… he probably didn’t know that I didn’t even like it.”^[6]  The appellant tried to kiss her on her face but she turned her head away.  As the appellant got off the complainant he asked, in a whisper, whether she was alright.  She said she did not clearly hear but answered, “Yes”.  He went into his bedroom.  After she went to the toilet she noticed that he had gone to sleep.  She then went to bed.

10. When asked how she felt about this incident the complainant answered:

“Um, I felt scared like, I was like, because at school we started to learn a bit about our bodies and the different ways of having sex and some things.”^[7]

11. After a break to change the tapes the interviewing police officers asked the complainant if there was anything else she wanted to talk about. She responded, “No”.^[8]  The complainant was then asked, “[H]as anything like that ever happened to you before?”^[9]  She responded, “No”.^[10]  The complainant was asked, “Has it ever happened … to you since?”  She responded, “Oh yes”:^[11]

“Like he, like um, a couple of times but it’s basically been the same thing … [b]ut at the new house.”^[12]

The police officer asked the complainant to pick another time:

“How many more times do you, do you reckon you want to, to um, how many things do you want to talk about?”^[13]

The complainant responded, “Probably just one more”.  The police officer asked, “[i]s there one more or is there, is there more that you, you just don’t want to….”^[14]  The complainant responded, “There’s more that’s happened”.^[15]  She said that it was exactly “the same thing” as in the caravan park. 

12. The complainant was asked to pick another time and tell everything about it. 

“COMPLAINANT:Alright recent one, three weeks ago, the Tuesday when school had to go back.  But I didn’t have to go back to school because I’m in grade nine so we go the next day after.

POLICE OFFICER:Mmhmm.

COMPLAINANT:Um I was home alone with poppy, and of course grandma had gone to work, [younger sister] had gone to school and the younger two, the babies, um had to go, was at nanna [other grandmother’s] I think.

POLICE OFFICER:Mmhmm.

COMPLAINANT:Yeah at Nanna [other grandmother’s] and um, it was like, it was fine like until like lunchtime and then poppy had the exact same look on his face.  Um and just like lay next to me in the bed, like on the bed sort of thing like watching TV, um then he came around and then basically did that exact same thing but I had underwear on underneath my clothes, underneath my pants, um and he just started to lick me.

POLICE OFFICER: Mmhmm and then what happened.

COMPLAINANT: Um well I was trying to push him away sort of thing, well I, I left it for a couple of minutes because I was like okay, okay what should I do sort of thing.  And then I thought to myself, well push him away and so I was like, I had his head because that’s all I could get to and I was trying to push it away.

POLICE OFFICER:Mmhmm.

COMPLAINANT:And I think he might have though[t] that I was trying to continue, like tell him to go longer sort of thing.

POLICE OFFICER:Mm.

COMPLAINANT:And um, and he kept going and I kept pushing him sort of thing and he kept going and I kept pushing him and he kept going and then he stopped after like the fourth time that I pushed him away an-, oh well tried to push him way.  And he just finished and he just asked me what did I want for lunch.”

They had lunch and played board games until everyone else came home. 

13. The police officer pressed for more details of this event. The complainant told him that they were in the house at the new address; she had been in her bedroom tidying it when she went to see what her grandfather was watching on television; he invited her to watch whatever she wished; he went outside for a smoke and then came back into the bedroom and lay on the bed. He got up, came around to her side, moved her legs around so that she was facing him, moved them apart with her pants down and started to lick her vagina. She described him doing this in the same way that he had done it the first time which she had earlier described.

14. The police officer asked “Now, you said there were other times where things have happened, do you want to tell me about the other times?”^[16]  The complainant answered, “No”, and added “[b]ut like, like I keep saying it’s the exact same”.  She mentioned only the one occasion when penile penetration occurred.

15. The complainant explained that she was having difficulties at the end of the school holidays, inferentially having arguments, and was going to ask to move. She explained:

“Um and then, then I thought to myself like, not just thinking of myself but what if he was one of those type of peoples and he could do it to [younger sister].  And that’s when I thought that it wasn’t, like that I would prefer to be unsafe and ke-, the oth-, the other three safe … instead of letting them be unsafe and me safe … So I was thinking more of them than me.”^[17]

16. On 4 March 2009 a general practitioner saw the complainant. He had no independent recollection of the consultation and relied upon the records of the practice. He had typed the notes of his interview with the complainant. However, he sent her for a mental health assessment by a nurse, presumably in the practice, but that did not occur until 9 March. The doctor gave his evidence by reading from the notes, including from the mental health assessment consultation. Those practice records did not go into evidence so it is not entirely clear which evidence he gave from his own consultation and which came from the consultation with the nurse. However, the doctor stated that “my” records indicated that the complainant had complained to him that she had been sexually assaulted by her stepfather. The doctor also confirmed in cross-examination that the complainant had declined to attend the hospital emergency department to be medically examined.  The doctor’s evidence was not admitted for recent complaint but rather to demonstrate inconsistency by reference to the stepfather allegation.

Cross-examination of complainant

17. The cross-examination of the complainant focussed on a number of discrete areas. Notwithstanding the indecent conduct, the complainant had wanted to leave the foster placement in 2008 and live with her grandparents. She explained, as mentioned, that she had been placed in foster care because “I got abused by my parents”^[18] but she preferred to be with her “parents or someone in the family”.^[19]  She agreed that she told “the Department”, at least after the events giving rise to counts 1 and 2 had occurred, that she wanted to live with her grandparents.  As late as 3 February 2009 she agreed that she told departmental officers that she wanted to live with her grandparents, that all was well, and explained this “inconsistent” attitude because she wanted to be with her younger siblings.  She also agreed that by February 2009 there had been a lot of arguments at her grandparent’s home, she believed that her younger sister was getting away with a lot more than she was allowed, and she wanted to return to her parents.  The complainant also agreed that in the past she had telephoned the department to complain about her foster care placement. 

18. The defence suggested to the complainant that the living conditions at the caravan park were so confined that if the rape occurred as and when described, the complainant must have cried out, inferentially, and her grandmother, being so close, would have heard and investigated. The complainant said she did not, at any time during the rape, cry out or scream.

19. Defence counsel below suggested to the complainant that the grandfather said it (referring to count 3) did not happen. She responded, “Well, I call him a liar.”^[20]

20. The complainant was asked about her refusal to undergo a medical examination. The cross-examination on this issue was as follows:

“Look, you remember they asked whether you wanted to be medically examined in respect of this? -- Yes.

And you didn’t want to be, did you? -- No, not really.”^[21]

The doctor’s evidence was:

“----- on the 9th of March 2009, she was not medically examined, was she? -- I – I – I didn’t’ – I didn’t examine her medically.  I normally suggest that they got [sic] to an emergency department, because I’m not trained to medically examine post sexual assault patients.

Okay.  Do you know if she ever attended upon any hospital or emergency section [sic] for that? -- No, she declined it as far as I remember.”^[22]

21. The complainant was further cross-examined on a second occasion, about two months later, about the suggestion that she had told the doctor that her stepfather had interfered with her.  This was the exchange:

“And you told him, during that consultation, that you had been – did you tell him, I mean, that you had been interfered with in the past by your stepfather? -- My stepfather?

Yes? -- No.

Right.  Did you have any discussion with the doctor about your stepfather? -- Not that I can recall, no.

You also, I suggest, on that day, told the doctor that your grandfather tried to rape you in January? -- Yes, I think so. 

And that was -----?-- It was a while -----

Pardon? -- That was a while ago.  I can’t remember fully, but I can kind of classify it.

Mmm.  But the doctor was carefully taking notes when you were speaking to him? -- Yes, I -----

And you accept that you told him that in January your grandfather had tried to rape you, is that right? -- I think so, along those lines, yes.

All right.  You didn’t mention anything else to him, did you? -- No.”^[23]

22. It was incorrect to suggest to the complainant that she had told the doctor that her grandfather had tried to rape her. The doctor was asked in cross-examination, after the reference to the complaint about the stepfather in the notes,

“At that stage didn’t say anything at all to you about her grandfather? -- Not so far as my records indicate.

Okay.  She was then sent off for a mental -----?-- Health care plan.”^[24]

The complaint about the appellant trying to rape her was contained in the nurse’s notes.  The doctor conceded in response to a very general question in re-examination that he might, sometimes, have made a mistake in his notes.

The approach on appeal

23. The most recent discussion by the High Court of the task which an appellate court undertakes when it is asked to determine an appeal which, as a ground, contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence is in SKA v The Queen.^[25]  Each member of the court^[26] agreed that the function to be performed by an intermediate appellate court is as stated in M v The Queen^[27] and MFA v The Queen.^[28]  Mr Heaton referred to the articulation in this Court in R v PAH^[29] by Mackenzie AJA which brings the several key passages in M and MFA together :^[30]

“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.  In most cases, a doubt experienced by an appellate court will be a doubt the jury ought also to have experienced.  Where a jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt experienced by the appellate court, the court may conclude that no miscarriage of justice occurred.  Where the evidence lacks credibility for reasons which are not explicable by the manner in which the evidence was given, the reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.

If the evidence, on the record itself, contains discrepancies, inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and set aside a verdict based on that evidence.  In doing so, the court is not substituting trial by the Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

24. In SKA v The Queen the plurality said:

“To determine satisfactorily the applicant’s appeal, the Court of Criminal Appeal [of N.S.W.] was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged…  [T]he Court of Criminal Appeal did not satisfactorily determine the date at which it was alleged that the applicant committed the offences…  Whilst it is true that an appellate court is not always bound to deal with all arguments put to it, this was a critical matter.  Second, this led the Court into error when considering the sufficiency of the evidence on which it was open to a jury to have concluded beyond reasonable doubt that the applicant was guilty of committing the 2006 offences.”^[31]

Their Honours continued:

“On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported… The reasons for judgment … do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence … and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.”^[32]

The appellant’s contentions, the respondent’s response and discussion

25. It is uncontroversial that the reliability and credibility of the complainant was central to the question of guilt. Counsel below sought, and the trial judge gave, an appropriate Robinson^[33] direction, as well as all usual directions about the assessment of evidence, including identifying inconsistencies and other weaknesses, about which there is no complaint.  The appellant points to a number of features in the complainant’s evidence which, he submits, impacted upon the complainant’s reliability and credibility.  Taken together, he contends, they would raise a doubt in this Court which ought to have been held by the jury such that there is a significant possibility that an innocent person has been convicted.  Those weaknesses may be summarised conveniently following Mr Heaton’s order in his written submissions.

26. (i)Timing – counts 1 and 2:  It is contended that there was considerable vagueness by the complainant in the timing of these offences and delay between their commission and complaint to police.  In the s 93A statement to police on 9 February 2009 the complainant said these events occurred about 12 months ago.  In cross-examination on 25 October 2010 she said they occurred in mid-2008.

27. The respondent points out that the reference to 12 months occurred in response to a question at the commencement of the complainant’s s 93A interview with police on 9 February 2009 - “So what have you come to talk to us about today [the complainant]?”  She responded, “… for the last twelve months my pop that I’m living with um, he, I, um have trying to have an affair sort of thing with me”.  Police did not probe her any further about the timing of counts 1 and 2.  Notwithstanding that the complainant said in cross-examination that the first incident occurred somewhere “around mid 2008”, it was not unreasonable to be untroubled by this “minor” inconsistency.

Discussion.

28. The suggested vagueness and/or inconsistency in the complainant’s evidence about the timing of counts 1 and 2, is minor, if it can be appreciated as an inconsistency at all. The complainant was not asked to remember with anything approaching precision in her interview with police when this incident occurred. For a 13 year old to say the incident occurred 12 months ago at the beginning of her interview rather than in mid-2008 which was the answer she gave when being fully cross-examined more than a year and a half later, is, at its highest, a minor inconsistency.

29. (ii)Timing – count 3:  The appellant says there are inconsistencies in the complainant’s evidence about when count 3 occurred.  In the s 93A statement she said it was “three weeks ago”, the Tuesday when school resumed but she did not have to go until the next day because she was in Grade 9.  In the pre-recording of her evidence on 25 October 2010 she said it occurred in the first or second week of the school year.

30. The respondent points out that the complainant was able to identify the timing of this event with precision when she was interviewed by police on 9 February 2009.  Twenty months later during cross-examination she said the first or second week of school.  It was in the first week of school and the inconsistency, again if there is one, was of a minor nature and readily explicable by the passage of time. 

Discussion

31. The complainant was quite precise about the date when she was close to the event. There was objective supporting evidence for her nomination of the Tuesday which happened to be 27 January.  There is no inconsistency of any moment.

32. (iii)Implausible allegation:  The complainant asked the department to be placed with her grandparents after the sexual abuse had allegedly occurred.  At a meeting on 3 February 2009 she met with departmental officers and expressed her wish to remain with her grandparents.

33. The respondent submits that the explanation in her s 93A statement that she was concerned for the safety of her sister and other siblings was a plausible explanation which would not lead to a concern as to her credibility.

Discussion

34. The contention that the complainant’s credibility was challenged because she was prepared to speak well of her placement with her grandparents after the abuse had occurred is a matter for careful consideration. The arguments which had soured the affectionate intergenerational relationship by the end of the summer school holidays had not been present earlier. The complainant had enjoyed being with her grandparents and had a loving relationship with them. She spoke of enjoying hugs with her grandfather before the indecent conduct occurred. Apart from the penile rape the conduct was not violent. She may have had mixed feelings about it. Furthermore, she positively did not wish for a foster home placement. She wished to remain with her siblings. Although this factor is a matter to be weighed carefully, the complainant has a plausible explanation for it.

35. (iv) and (viii)Further implausibility:  The appellant notes the complainant had regular contact with the department, had complained on earlier occasions if she was unhappy in her placement, but made no complaint prior to 9 February 2009 about the appellant.

36. The respondent submits that the complainant gave a plausible explanation for why she wished to move into her grandparent’s house - to be with her younger siblings. The mere fact a complainant delays in making a complaint of a sexual nature does not of itself destroy a complainant’s credibility and the jury were reminded of these matters by the trial judge.

Discussion

37. The complainant did have regular contact with the department and had demonstrated that she was able to voice her feelings of discontent with her placement on other occasions. For the reasons discussed above at [34] as well as, no doubt, the grave nature of the allegations, she may have hesitated to come forward.  The long and unhappy history of cases of indecent dealing with children demonstrates that there are some secrets which children, who are not even threatened, keep to themselves for many years.

38. (v)Motive to lie:  The complaint to the chaplain and police emerged in the context of conflict in the domestic environment in which the complainant was living with her grandparents and her desire to live elsewhere.

39. The respondent contends that the mere fact that there was conflict within the family does not detract from the complainant’s credibility since it is a not uncommon occurrence that complaints of a sexual nature can arise in times of conflict.

Discussion

40. The complainant did, it would seem, because of her disengagement with her grandparents by the end of the school holidays, wish to cease living with them. She did have a motive to lie but that motive must be weighed with the rest of her evidence.

41. (vi)Disadvantage to the appellant – refusal of medical examination:  The complainant refused to undertake a medical examination.  She was then only 14 and had alleged that she had been subjected to full penile penetration.  A medical examination, even many months afterward, may have been able to offer some evidence to assist the jury to determine the honesty of her allegations.  Her refusal to submit to a medical examination (potentially) deprived the appellant of an opportunity to disprove her allegations. 

42. The respondent points out that the complainant did not refuse a medical examination. It was not requested by the police. It was suggested by the doctor. Given her age, the respondent contends that it is unlikely that a medical examination would have disproved her allegations.  The trial judge directed the jury about this issue.

Discussion

43. The refusal of the complainant to undertake a medical examination is couched too highly by the appellant. The doctor had the barest of recollections and did not expand upon what he had said to the complainant. The cross-examination did not suggest that any explanation had been given to her about the appropriateness of an examination and how it might test her account or to balance issues of fairness. The examination was proposed about eight months^[34] after the alleged penile penetration.  Without probing the complainant further about sexual activity, or lack of it, little or nothing could be expected to be gained from such an examination.  This matter does not strongly challenge the complainant’s evidence.

44. (vii)Inconsistent account:  The inconsistencies identified by the appellant were the alleged complaint to the doctor when she said it was her stepfather who had assaulted her; making no allegation of sexual penetration, only oral sex, to the school chaplain; and her comment to the nurse that the appellant had only “tried” to rape her.

45. The respondent contends that it was open to the jury to accept that the doctor might have made a mistake when recording his conversation with the complainant. This was particularly so since the complainant consulted with the doctor after she had made her detailed complaint to police concerning her grandfather.  The use of the expression “tried” to rape her in January was said to be inconsistent with her statement to police.  The respondent contends that the act of oral sex in mid-2008 had led to penile sexual intercourse and it was not, thus, inconsistent of the complainant to have described what happened in January in that way.

46. The complaint of inconsistency is not strong. From the transcript the doctor did not present as an impressive witness. When contacted to give evidence on the afternoon of 14 March he was clearly unprepared. He said he did not have the records, suggesting that the prosecution had not sent them to him. The prosecutor told her Honour that he had spoken to the doctor some days earlier and had, at the doctor’s request, faxed the medical records and told him that he would be required to give evidence either on the Monday (that day) or the next day.  Although it appears that the doctor had previously been given those records another set was sent to him by the prosecutor.  The jury saw this exchange.  About 15 minutes later the doctor then commenced to give his evidence.  The complainant denied that she had told the doctor that it was her stepfather.  By then she had spoken to the school chaplain and had given her detailed explanation to police in her s 93A interview.  It seems likely that an error crept into the notes. 

47. It is also suggested that the complainant, not having told the school chaplain that she had been raped or that sexual penetration took place, was neither credible nor unreliable. The school chaplain was very clear that immediately the complainant mentioned that there had been oral sex she stopped any further conversation and took the girl to the school counsellor. 

Discussion

48. The evidence, such as it was, read by the doctor from the nurse’s notes, that she had been told by the complainant that the appellant had only “tried” to rape her, if correct, is explicable on the basis that oral sex had preceded the penile penetration for count 2 and there was nothing to suggest that it might not happen again.

49. (ix)Further implausibility:  The appellant contends that the complainant had demonstrated confidence in the school chaplain and had spoken to her on 12 prior occasions yet made no disclosures about sexual misconduct, rather she had mentioned that she was looking forward to moving in with her grandparents.

50. The respondent submitted that the complainant explained that she wished to be with her siblings, or at least with family. There may be many reasons why a child does not reveal sexual abuse immediately.

51. (x)Further implausibility:  The appellant points out that the complainant made no allegation that the appellant had told her to keep quiet about what was happening such as to explain her silence.  This has been discussed above at [37] about the complainant’s failure to complain.  It is a factor to weigh in assessing credibility.

52. (xi)Vagueness in the allegations:  The appellant argues that the complainant was unable or unwilling to give any detail of other occasions on which she said sexual abuse took place but resorted to vague generalisations and this significantly impacted on her credibility.

53. The respondent submits that it is not unusual for discredible conduct to be described in vague and generalised ways which is the reason it is not charged as discrete offences. The jury were directed that this evidence could only be used if they were satisfied beyond reasonable doubt that it had occurred. If they were not satisfied then it had a bearing on their acceptance of the evidence about the charged offences.

Discussion

54. The complainant said that this uncharged conduct occurred on three to four occasions at the caravan park residence. She clearly did not wish to describe it further with the police merely saying that it was exactly the same as the detailed description that she had given of the first oral sex encounter. This was a case where, if the evidence of the complainant reached the requisite standard in respect of the charged acts, these allegations would be accepted as being true.

55. (xii)Further implausibility:  The appellant points to the unlikelihood that an act of vaginal penetration took place in the confined space of the caravan when the grandmother was near by.

56. The respondent notes that the complainant said she had made no sound when penetration took place. The trial judge alerted the jury to this aspect of the evidence.

Discussion

57. It was not incredible that the complainant did not cry out. The appellant’s activity before penetration may have lubricated the complainant’s skin sufficiently to prevent extreme pain leading to involuntary cries.

Viewing the video of the s 93A interview

58. Mr Heaton referred generally to the demeanour of the complainant in her interview with police and asked the Court to view the whole video recording to assist it in discharging its task in reviewing the whole of the evidence. When pressed for any particular demeanour which might illuminate the challenge to her credibility he referred to her evidence appearing at p 24 of Exhibit A. The transcript of that evidence is set out at [12] above.  Ms Loury, for the respondent, did not seek to dissuade the court from viewing the video.

59. In SKA the appellant contended that the Court of Criminal Appeal erred in not viewing the video recording of the complainant’s evidence.  Simpson J, with whom the other members of the court agreed, concluded that viewing the recording might create an imbalance given that it would not be viewing the evidence of other witnesses.  The applicant and a number of other witnesses had given evidence on contentious matters.  French CJ, Gummow and Kiefel JJ concluded that:

“The correctness of her Honour’s observation, as to the potential for an undue focus upon the complainant as a witness, which might result from viewing the video recording, cannot be doubted.”^[35]

Their Honours commented that since only the complainant’s evidence-in-chief had been recorded the video may “not have been a fair representation of her evidence as a whole”.^[36]  Such a concern would not generally be an issue in Queensland where the whole of a child complainant’s evidence will be recorded and played in that form to the jury.  So far as this appeal is concerned, there is no “balancing” to be done as there was virtually no contradictory oral evidence.  The doctor gave his evidence by telephone.  However, on the desirability of an appellate court being assisted by viewing video recorded evidence their Honours said:

“The account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of the evidence.  It is to be expected that if there is something which may affect a court’s view of the evidence, which can only be discerned visually or by sound, it can and will be identified.  Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence.  There must be something in the circumstances of the case which necessitates such an approach.”^[37]

60. The applicant in SKA had relied upon certain speech patterns of the complainant as indicative of uncertainty.  Of that submission their Honours said that they “were evident from the transcript”.^[38]  Crennan J found it unnecessary to deal in any detail with the viewing of the video

“… because there was no identification by the applicant’s counsel of any forensic purpose to be served by having the Court of Criminal Appeal view the video recording, a course which defence counsel had not urged upon the court.”^[39]

61. Mr Heaton submitted that the conduct of the complainant at that point in the interview in clapping her hands and lying down on the couch when asked to give details of another occasion of sexual abuse was extraordinary and ought to have suggested the unreliability or want of credibility in her evidence. The Court viewed that part of the video. The child does throw herself on to the couch in a recumbent position. She puts her hands in the air and covers her eyes and speaks from that position. To the extent that this Court can interpret such demeanour it could mean that the complainant was embarrassed at discussing such intimate things with two strangers, it could demonstrate how young and immature she was and unfamiliar with discussing such matters, it could have suggested that she regarded it all as something of a game, or it could have suggested none of those things but something else to the jury.  Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy:^[40]

“… in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis on such appearances.”

62. If an appellant wishes this Court to view pre-recorded evidence it should identify the forensic features to be gleaned from such a viewing with some precision. In this case the evidence about which the jury had to make assessments of credibility was almost exclusively that of the complainant, (putting to one side that of the doctor; the chaplain was not challenged) such that an imbalance would be unlikely. Nonetheless, there should be some articulated basis for the Court to view the video evidence. Without some identification of what to look for in terms of the effect of the viewing upon an appreciation of the transcript of the evidence, it may well end up being an unfocussed diversion of resources.

Conclusion

63. When the weaknesses in the complainant’s evidence as identified by the appellant are carefully examined they are, at best, minor inconsistencies or raise questions for which the complainant offered a plausible explanation. The assessment of the complainant’s answer that she did not cry out in the course of count 2 was a matter which the jury, with their collective life experiences, were well able to assess. Her demeanour at the commencement of her description of count 3, to which Mr Heaton drew attention, was susceptible of several interpretations which the jury were charged with assessing.  They were armed with all necessary warnings which the long experience of courts deems necessary.^[41]

64. This is not a case where the record of the evidence contains discrepancies, displays inadequacies or lacks probative force in such a way, making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.^[42]  The evidence does not demonstrate that the verdicts of the jury are unreasonable or cannot be supported on the whole of the evidence.

65. I would dismiss the appeal.