R v Hansen[2012] QCA 156

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted by a jury of two counts of rape of a ten year old child, the first count involving digital penetration of the anus, the second digital penetration of the vagina.  He appeals those convictions on the grounds that they were “unsafe and unsatisfactory” (or, more correctly, in the language of s 668E of the Criminal Code, that the verdicts were unreasonable); that the trial judge misdirected the jury by giving an inadequate Robinson[1] direction; and that a comment by the trial judge concerning the Crown’s failure to comply with the rule in Browne v Dunn[2] might have led the jury to infer that a similar approach should be taken to the appellant’s evidence.

[2] The complainant, M, was a 10 year old girl.  On 25 January 2011, she and her mother and step-father, Mr and Mrs A, were staying at the house that the appellant occupied with his de facto wife.  They were all friends; the family had often stayed overnight at the house before.  On this occasion, the adults had been drinking alcohol, including the appellant.  He had drunk, he said in evidence, about 15 mid‑strength beers and a couple of rums.  M was put to bed in her pyjamas (consisting of a singlet and shorts) on a mattress on the floor in a bedroom.  Two other little girls aged four or five were sleeping in a bed in the same room.  The room was lit by a lamp.  Mr and Mrs A slept in an adjoining spare room.  They went to bed about 11.30 pm or midnight.

[3] Mrs A’s evidence was that she got up not long afterwards to go to the toilet and, glancing into the room where M was sleeping, saw the appellant in a kneeling position halfway up M’s mattress, with his back to the door.  M’s head appeared to one side of the kneeling figure; she asked for a drink.  The appellant got up, turned and started walking towards the door.  Mrs A said that he had a “subdued, stunned look”.  She fetched some water; when she returned with it, M asked if she could sleep with her.  They moved the mattress into the room Mr and Mrs A were occupying, and the child slept there.

[4] The following day, M made allegations of assaults by the appellant to her mother and step-father.  The day after, 27 January 2011, she gave an account to a police officer about what had happened and was examined by a doctor.  On 28 October 2011, her evidence was recorded for the purposes of the trial.  The appellant relies on what are said to be inconsistencies between those various versions to assert that, on the whole of the evidence, it was not open to the jury to be satisfied beyond a reasonable doubt of the appellant’s guilt.

M’s complaints on 26 January 2011

[5] Mrs A said that at about 6 am in the morning of 26 January, when they woke at the appellant’s house, M jumped onto the bed she and her husband were sleeping in.  The child asked whether the appellant was drunk the previous evening and said that she did not want to sleep over at the house again.  Mrs A asked what had happened; M said that the appellant had touched her on her bottom and “giney” (the word she used for vagina), pointing to that area of her body.  Mr A also gave evidence of the conversation; his recollection was that the child had referred to her “giney” and pointed to it.  They left the house almost immediately, Mrs A driving M home while Mr A (who was living elsewhere) travelled separately.  In the car, Mrs A said, M asked again if the appellant had been drunk and repeated that he had touched her on the “giney” and on the bottom.  She said she had woken up with the applicant touching her, and that although she had asked him to stop, he “just kept going.”

[6] In the course of the day, Mrs A and Mr A separately spoke by telephone to the appellant.  To each he said that he had not touched the child but had gone into the bedroom to settle one of the other children.  M had woken and asked him to tickle her feet, which he had done.  Both Mr and Mrs A said that the child did not, in fact, like having her feet tickled.

[7] Later in the day, Mrs A said, she got M to lie down on a couch in the position she had been in on the mattress at the appellant's house, patted her on the bottom and asked whether that was what the appellant had done.  The child replied, “No, it was inside my shorts, Mum”.  Mrs A held her hand over the child’s vaginal area and asked if the appellant had held his hand like that; the child responded, “No, inside my shorts, Mum, and put his finger down there”.  Mrs A stopped her at that point and told her not to say any more.  Mr A said that that afternoon, with Mrs A present, he asked the child again what had happened and she said that the appellant had touched her.  He explained that it was a serious matter and could cause a lot of trouble.  Her response was to repeat that the appellant had touched her “on [her] vagina”.

The s 93A statement given on 27 January 2011

[8] Mrs A contacted the local police station and, as instructed, took M to be interviewed there the following day.  The interviewing police officer commenced by asking the child what she had come to talk about.  M responded in this way:

“I woke up and then [the appellant] was sitting at the end of the bed.  And he was just rubbing my butt and um, I woke up and I was like and he said do you want me to stop now?  And I said yeah.  But he kept on going.  And then um, I tried to go back to sleep but he kept on going but then after a while he sort of, he started um, he um, started feeling my vagina... Instead.  And then I, um, I asked him to stop so he did.  And then he said close your eyes and put your hand out and I did.  And then he put something on my hand and I don’t know what it was.  And then, and then he st-, and then he said do you want me to stop?  And I said yes again.”

Then, M said, her mother appeared and she asked for a drink.  Later, M volunteered some times involved in the incident.  She could see one of the other children who, she thought, had woken up at about 2 am.  The appellant, she said,

“was doing it from like one and then I went into Mum’s bed about four…. I woke up at one and I don’t know how long before that he was doing that.”

She had asked the appellant what time it was, and he had told her that it was around one o’clock.

[9] M was asked to tell the interviewing officer exactly what was happening when she woke up:

“[M]:  Um, he was st-, he was, I woke up and he was rubbing my butt.

[Interviewing officer]:  Tell me more about when he was rubbing your butt.

[M]:   Um, he was just sitting there and, and then I woke up and he’s like do you want to stop?  And I said yeah, I said yeah, please.  And then he said okay, but he didn’t stop, he kept on going.  He, he was acting like he never heard what I said.

[Interviewing officer]: Okay. So when you say rubbing your butt, tell

me more about the part where he’s rubbing your butt?

[M]:  Um, my butt cheeks and inside my butt.

[Interviewing officer]: Mmhmm, yep.  What about the rubbing, tell me about the rubbing?

[M]:  Um, he was rubbing and then later on, um he was rubbing with his fingers and then later on he um, he put his finger down my butt.”

[10] M said that she was not wearing underwear beneath her pyjamas.  The rubbing was inside her shorts.  M had attempted to divert the appellant by asking him questions, for example about whether the other children were awake; although he answered her, he continued with what he was doing.  While he was rubbing inside her bottom, the appellant had asked if she wanted him to stop and she said she did, but he kept on going and then began to rub inside her vagina using a finger.  He inserted his finger too far and it began to hurt.  He asked again if M wanted him to stop.  This time, on her affirmative answer, he did and then told her to close her eyes and put her hand out.  He put something on her hand but she did not know what it was; it was bristly.  Then her mother arrived and she asked for the water.

The medical examination on 28 January 2011

[11] On the following day, M was examined by a paediatric registrar at a children’s hospital.  The doctor gave evidence: she said she saw no sign of injury to the genital or anal tissues, but that did not establish that penetration with a finger had not occurred.  It was possible that there had originally been evidence of minor injury that was no longer visible two days after the event.

[12] The doctor had used a document headed “Alleged Sexual Offences Examination Protocol” to record M’s history and the details of the examination.  In it, she noted a history of “alleged digital penetration of vagina...rubbing between buttocks and painful digital penetration of vagina”.  Under the heading “Type of Assault”, she had ticked “vaginal”, but had left “anal” unchecked.  The doctor said that she took the history recorded on the form from the police (the name of the interviewing officer appeared on the form), although she also took some further history from M herself in order to be more specific about symptoms.  She did not recall asking M if there was any penetration of her anus, and the child did not give that information.

Pre-recorded evidence 28 October 2011

[13] M’s evidence was taken in a hearing recorded prior to the trial.  She had turned 11 by then.  She said that she did not see the appellant come into the room because she was asleep.  She first noticed him kneeling at the bottom of her bed, rubbing her bottom.  She asked him to stop but he did not; instead he “got a finger, or a couple, and sticked it up [her] bum hole”.  He had rubbed her vagina and put a finger in it.  She asked him questions to distract him, but they had no effect.  M did not remember his doing anything else, although when reminded, she agreed that after everything else he had told her to close her eyes and put out her hand.  He then put something in it which was bristly or rough, but she could not remember its shape.

[14] In cross-examination, M repeated that the appellant had been kneeling, rubbing or massaging her “butt”, before putting his fingers into her “butt hole”.  The latter act lasted for about 30 seconds and was quite painful.  He twisted his finger around.  Then he started rubbing her vagina, stopped briefly and began again before putting his finger (or possibly more than one finger, she did not know) into her vagina and turning it around.  That lasted for about 30 seconds too, before he told her to put out her hand and closed her eyes.  Some reliance was placed on this sequence of questions and answers.

“Now you said that these things were happening at about – or started happening at about 1 o'clock?-- Yes.

And do you remember telling the police officer that you went into your mum's room at about 4 o'clock?-- Yes.

And that it was about 2 o'clock when you saw [one of the girls] wake up?-- Yes.

So all of these things happened for about three hours?-- Yes.

Is that right?-- About that.”

(The question put to the child about going into her mother’s room at about four o’clock was inaccurate.  What she had said was that she went into her mother’s bed at about four.)  M said she had not called out at any stage; she explained in re-examination that that was because she was afraid of waking up the adults, who were drunk, and getting into trouble.

The defence case

[15] The appellant gave evidence.  He said that he had gone into the children’s room because the two girls sleeping in the bed had woken up.  He settled them, and as he was walking past M’s mattress, she grabbed his foot.  He looked back and heard her say what he thought was “tickle my feet”.  He went to the edge of the mattress and felt her feet; they were cold, so he tucked them in, and he used the sleeping bag under which she was sleeping to cover her exposed shoulder.  He had not touched her anywhere other than on the foot.  M woke, and her mother had entered the room.

The “unsafe and unsatisfactory” ground

[16] The appellant contended that inconsistencies between M’s versions of what happened rendered the convictions unsafe.  In her first two accounts, given on first waking on the morning of 26 January and in the car trip home with her mother, she made no mention of penetration, instead saying she had been touched “on” the bottom and vagina.  Her third account that day, to her mother, did suggest penetration, but only of the vagina.

[17] In her first account to the police officer on 27 January, M initially referred to the appellant rubbing her “butt” and feeling her vagina; it was not until some time subsequently in the interview, when the police officer said “Tell me more about when he was rubbing your butt”, that the child gave details of penetration.  Even then, the answers given were in response to the police officer’s repeated adjuration “tell me more”.  It was possible, the appellant submitted, that the child felt that the details she had given thus far were inadequate and that she felt compelled to invent more information.  The development of the child’s account in that way, it was said, should have raised doubt in the minds of the jury.

[18] The doctor’s notes, in failing to contain any account of anal penetration, added to the doubts raised by previous versions.  In the pre-recorded hearing, M gave under cross-examination on the topic a description of the appellant twisting his finger around in her anus and in her vagina, which she had not previously been given.  There were, it was said, other inconsistencies in M’s evidence.  In the s 93A statement, she said initially that the appellant was kneeling at the end of the mattress.  Asked whether he had moved at the point he asked her to put out her hand, M said he did not, then said “I think he moved, I don’t know.”  In evidence she said he had changed his position, moving to the side of the bed where the window was.  There was also the passage in cross-examination, set out above, in which M agreed that she had said in her s 93A statement that the behaviour occurred over a period of about three hours, although she otherwise estimated that she had been penetrated for about 30 seconds each time.  These things, it was submitted, raised a significant possibility that an innocent person had been convicted.

[19] I do not think that the variations in M’s accounts are correctly characterised as inconsistencies.  Rather, there is an increasing amount of information given.  M’s parents did not try to elicit detail from her; indeed, on the third occasion, when the child disclosed that the appellant had “put his finger down there”, her mother told her not to say any more.  The fact that M did not volunteer more information about what must have been, if her account were true, an embarrassing and shocking experience at the hands of her parents’ friend is not surprising.  Nor is it necessarily the case that she appreciated the significance of digital penetration as opposed to digital fondling, so as to appreciate the need to explain the different aspects of the encounter to her parents.  It is not at all remarkable that more detail emerged in the police interview.

[20] M was consistent in alleging that the assaults involved both her bottom and her vagina.  She began the police interview with a general description of the event and on further questioning by entirely non-leading questions, she expanded on what that had involved.  The police officer’s “tell me more” questions were not repetitive but sequential.  Asked to say more about when the appellant was “rubbing [her] butt”, M again gave a broad description; asked to tell more “about the part where he’s rubbing your butt”, she seems to have taken the police officer rather literally and described the parts of her bottom that the appellant had rubbed.  Asked next about the rubbing itself, she gave the further detail of the appellant rubbing with his fingers and then putting his finger into her bottom.  Her answers were distinct and responsive to the questions.

[21] The fact that the doctor took a history which did not include reference to anal penetration is attributable to the fact that the police officer did not give that information.  The doctor did not recall asking M about the topic, and it is not surprising that a ten year old did not volunteer the information if it was not sought.

[22] It was suggested that the passage in cross-examination set out above at paragraph [14], concerning the timing of events, cast some doubt on M’s credibility.  But the question asked of the child did not reflect what she had actually said; it is unclear whether her reference to going to her mother’s bed at about four o’clock was to the move of her mattress into the other bedroom or to what happened when she got up on the morning of the 26th January.  The proposition that “all of these things happened for about three hours” was so entirely unspecific that nothing can be made of the affirmative answer;  there is no way of knowing what M thought was encompassed in “all of these things”.  The child could well have been talking about events between the assaults and getting up the next day.  M’s statements about time are unclear and unhelpful, but that is the fault of the questioner, not the child.  They do not affect her credibility.

[23] The appellant submitted that other matters should have added to doubt about M’s account: the assaults were said to have taken place in a room lit by a lamp with the door open and other children sleeping, with M’s parents nearby.  The lounge room was close, and the lights were on there.  One might easily conclude however, that disinhibition produced by excessive alcohol consumption was enough to counteract all of those disincentives to misbehaviour.

[24] Generally, M’s account as to the assaults on her was consistent.  She did not contradict herself.  I have watched the video footage of the child’s police interview and her evidence given in the pre-recorded hearing.  There is nothing to raise concern in either.  Neither the content of M’s evidence nor her demeanour in giving it is such as to raise a significant possibility that the appellant was wrongly convicted on either count.

The Robinson direction

[25] Before the summing-up, the prosecutor raised the possibility of the judge’s giving a direction of the kind discussed in Robinson v The Queen.[3]  The learned trial judge indicated his intention to give a direction dealing with the loss through delay of the opportunity for obtaining possibly exculpatory evidence (more of the kind considered in Longman).[4]  He discussed the issue with counsel.  Counsel for the appellant raised the failure of the police to take samples from the child’s clothing, the appellant’s clothing and the bedding.  He did not suggest any other subject for the direction.

[26] The learned judge did give a direction that the jury should scrutinise M’s evidence with particular care and act on it only if convinced of its truth and accuracy because the appellant had lost the opportunity to disprove the allegations, for a number of reasons.  The first was that the doctor had not examined M until about 60 hours after the offences were alleged to have occurred.  In consequence, his Honour pointed out:

“the absence of even a minor injury to her vagina is of less significance than it would have been if this was found to have been the case within a shorter period of time after the alleged offence.”

His Honour went on to refer to the doctor’s evidence about the rapidity of healing and the fact that evidence of a minor injury might not be visible two days on.

[27] The appellant argued that the comment suggested that the delay disadvantaged the Crown rather than the appellant.  But what his Honour said was logical: the absence of a minor injury to the vagina assisted the defence, but less so than it would have done had that result been achieved shortly after the alleged commission of the offence.  It is improbable that the jury could have regarded it as directed to the Crown’s position when the learned judge made the reference immediately after, and in the continuing context of, pointing out that the appellant had lost the opportunity to disprove the allegations.

[28] The second reason his Honour gave for the warning was that M had bathed, so that the absence of relevant DNA had lost its significance; and the third was the failure of the police to take possession of her clothing, the bed clothes or the appellant’s own clothes, which meant that the appellant had lost the opportunity to disprove the allegations by showing that there had been no transference of DNA.  His Honour concluded by saying,

“that’s why I tell you that, as a matter of law, you need to scrutinise her evidence with great care and it is only if, after you consider it with that warning in mind, and all the other evidence that you are convinced of its truth and accuracy, that you would arrive at a conclusion of guilt.”

[29] The appellant argued that the direction was deficient because it did not raise M’s youth or the inconsistencies in her evidence as giving rise to the need for caution.  He placed particular reliance on this passage from Robinson v The Queen:

“[T]here were particular features of the case which demanded a suitable warning…. they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant’s evidence as to whether penetration occurred.”[5]

[30] The passage cited from Robinson does no more than identify features in the particular circumstances of that case which warranted a warning.  (In Robinson the complainant was eight when the alleged offence occurred; he did not tell his mother about it until three years later.)  It does not prescribe such a warning every time the complainant is of tender years; indeed, such an approach would run foul of s 632(3) of the Criminal Code.  Pressed as to why the age of the complainant in this case warranted a warning, counsel for the appellant contended that there were indications in the evidence that she was “suggestible”; she had responded to the police officer’s “tell me more” line of questioning by volunteering new information.  But I do not see why M should be regarded as suggestible simply because she answered the questions asked; certainly she was not adopting anything suggested to her.

[31] Counsel for the appellant also pointed to an answer given at the very end of the police interview: the officer asked:

“And you said that this has never happened before?”

to which M responded:

“Not to me.”

It was suggested the answer implied that M had heard some other account of misbehaviour by the appellant, and adopted it.  That, I think, is to read an extraordinary and entirely unwarranted amount into a simple and straightforward answer.

[32] Counsel for the appellant also submitted that the warning was required because M had been in what he said was the “twilight state” identified in Longman and Tully vThe Queen,[6] between sleeping and waking.  In Longman, Deane J observed that a lengthy delay (twenty years, in that case) between alleged offence and complaint was of concern because of the possibility that a half-asleep child might be fantasising; a possibility which could be resolved by contemporaneous questioning.[7]  In Tully, the ‘twilight state’ was mentioned in passing by Crennan J, once referring to its mention in Longman, and once to say that there was no contention about it in Tully.  Again, one would be hard put to infer from those references some general principle about warnings when the initial assault is of a sleeping child.  And there was simply no suggestion made to M at the trial here that she was in some state of confusion by reason of having been woken from her sleep.

[33] M was ten years old at the time of the events in question, and was intelligent, articulate and coherent.  She made a prompt complaint and was giving evidence about the matter relatively soon afterwards, at the age of 11.  There was nothing in those circumstances to raise particular concern so as to require comment.  I do not think the failure to refer to M’s age as warranting caution gave rise to any risk of a miscarriage of justice.  And as I have already observed, I do not think there were significant inconsistencies in the child’s evidence which required a Robinson warning.

The Browne v Dunn reference

[34] Counsel for the appellant at trial (not counsel who appeared at the appeal) did not, in cross-examining M, put the appellant’s instructions that he had not touched her anywhere other than her feet.  In the course of his summing-up, the trial judge, in explaining to the jury that counsel’s questions were not evidence, said this:

“In this case, the Prosecutor, as he is obliged to do, in cross-examining Mr Hansen, put a number of suggestions to him about what the prosecution says happened.  Those were suggestions which were consistent with the complainant's evidence.  I'm sure you'll remember him putting those propositions yesterday afternoon.”

His Honour went on to explain that it was the appellant’s answers denying the correctness of the propositions which were evidence, not the statements contained in the questions.

[35] This was akin, the appellant suggested, to what occurred in R v MAP.[8] There, the trial judge pointed out to the jury in his directions that it had not been suggested in cross-examination of the complainant that the accused did not digitally penetrate her.  The jury were not told that a possible reason for the omission was that counsel had overlooked the point.  In that case, this court concluded that the comment “could have been understood as an invitation to the jury to draw an inference adverse to the appellant on a crucial issue.”[9]  It was possible that it had resulted in the appellant’s conviction of the rape of the complainant, in contrast to his acquittal at the same trial of the rape of another woman.  Here, the appellant submitted that the jury might similarly have thought it should draw an adverse inference to the appellant on the critical issue of whether he had touched the appellant anywhere other than her foot.

[36] I do not think there is any resemblance between the circumstances in this case and those in R v MAP.  Here, the learned judge made a passing reference, in a completely different context, to the prosecutor’s being obliged to put things to the appellant.  Defence counsel in cross-examining M put matters consistent with the appellant’s evidence, which presumably were his instructions: asking the child if her feet were cold and if she remembered touching the appellant on his leg and asking him to do something with her feet, or having her feet tucked in by the appellant.  He did not formally put it to M that the appellant had not touched her anywhere but her feet, but nothing was said of that omission, and it seems highly improbable that the jury noticed it, let alone cross-referenced against it the judge’s allusion to the prosecutor’s obligation.  The notion that the jury might have regarded the judge’s comment as somehow inviting it to draw conclusions adverse to the appellant is fanciful.

Conclusion

[37] None of the grounds of the appeal against conviction is made out.  I would dismiss it.

[38] GOTTERSON JA: I agree with the order proposed by Holmes JA and with the reasons given by her Honour.

[39] PHILIPPIDES J: I have had the advantage of reading the judgment of Holmes JA and agree with the order proposed.