R v NM[2012] QCA 173

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I have had the benefit of reading the reasons of Fryberg J.  I agree with his Honour’s analysis of the compass of s 4A of the Criminal Law (Sexual Offences) Act 1978 and with his Honour’s conclusion that the evidence of MS was not about the commission of the offence and should not have been admitted; but that no miscarriage of justice resulted from its admission.  I agree too, for the reasons his Honour has given, that the appellant has failed to make out the ground that the verdict was unsafe and unsatisfactory (or, more properly, unreasonable).

[2] I would make some comment on one matter, however.  As Fryberg J points out, s 668D(1) of the Criminal Code provides for appeal on a question of law as of right, as opposed to appeal on “a question of fact alone, or question of a mixed law and fact”; in the latter case, either the leave of the court or the certification of the trial judge is required.  It was raised in the course of the hearing of this matter that leave had not been sought or obtained to bring the “unsafe and unsatisfactory” ground of appeal.  Counsel for the appellant undertook to file an application for leave to appeal. On reflection, I do not think that was necessary.

[3] Rule 65 of the Criminal Practice Rules requires an applicant for leave to appeal to file a notice of application for leave stating the grounds of the appeal.  The prescribed form, as for an appeal not requiring leave under r 66, is form 26.  The appellant had used that form.  It is headed “Notice of Appeal or Application for Leave to Appeal Against Conviction or Sentence (for appeals other than under the District Court Act 1967, s 118)”.  The form requires the appellant or applicant to indicate whether it is conviction, sentence or both against which he desires to appeal.  The grounds to be set out are those which say why the conviction should be quashed.  Nothing indicates any distinction to be made in the form itself between an application for leave to appeal against conviction or an appeal against conviction.

[4] I note too, that for some years this court has generally permitted appeals involving questions of fact to proceed without requiring argument on, or dealing separately with, the application for leave.  Indeed, it is not obvious from the Queensland Reports that there ever was any practice of requiring separate argument on the point. And varying practices may be observed over the 1950’s as to whether the leave question was dealt with at all. R v Redgard,[1] for example, was an application for leave to appeal against a conviction of indecent assault on the basis that the verdict was “against the evidence and the weight of evidence” and unreasonable.  The Court of Criminal Appeal dealt with the application and the appeal itself together, granting leave and allowing the appeal.  In contrast, in R v Ross, Thomas McCarthy and Ada McCarthy,[2] the appellants relied on an “unreasonable” verdict ground, but also on grounds concerning the question of corroboration.  The court held, in the case of the appellant Ross, that the uncorroborated evidence of accomplices was not sufficient to satisfy a jury beyond a reasonable doubt.  No reference was made to any need for leave to appeal, nor was it considered. 

[5] R v Nichols, Johnson and Aitcheson[3] represents a mixed approach: the appellants appealed against their convictions of manslaughter on grounds that there was no evidence to support their convictions and that the jury could not properly have come to the conclusion that the elements of the offence were made out.  Mansfield CJ and Matthews J made no reference to any application for leave to appeal; the only order made was to dismiss the appeals against conviction.  In contrast, Stanley J referred to appeals and applications for leave to appeal at the commencement of his judgment but did not subsequently advert to the question of leave in a lengthy judgment, simply reaching the conclusion that the appeals should be dismissed.

[6] The question of leave where an appeal ground involves a question of fact has seldom exercised the court in the intervening decades: rare examples of its being raised are R v May, Monaghan, King and Rees[4] and R v C[5]. In neither was the application for leave considered separately from the court’s examination of the merits of the appeal.  More commonly, this court does not advert to the application but deals directly with the appeal grounds raised, implicitly extending leave in the process.  That approach is practical and saves time; I do not think any change in it is warranted.  Indeed, it may be appropriate that a legislative amendment reflect that reality.

[7] However, since the leave issue was raised in this case, I agree with the orders proposed.

[8] FRYBERG J: On 25 November 2011 the appellant was convicted in the District Court at Townsville of two counts of indecent treatment of a child under the age of 12 in his care and a further count of indecent treatment of the same child after she had turned 12.  On the previous day the Crown had filed a nolle prosequi in relation to a further charge of observing the child in breach of privacy.  The convictions were based on majority verdicts of the jury given at the end of a three day trial.  Five days after his convictions he filed a notice of his desire to appeal to this court against his conviction and it is that which is now to be determined.

[9] The notice of appeal contained four grounds, but the appellant abandoned the second and third of them.  The grounds argued were:

“1.His Honour erred in ruling the evidence of [MS] admissible as preliminary complaint.

4.The conviction was unsafe and unsatisfactory.”

Ground 4 was based on the alleged unreliability of the complainant’s evidence.  It involved no question of law.  Consequently, no appeal lies on the ground as of right.  Leave to appeal is necessary.[6]

The circumstances of the alleged offending

[10] The first two counts on which the appellant was convicted were alleged to have occurred at Rasmussen (a suburb of Townsville) on the same occasion, late at night on a date unknown between 10 June 2005 and 12 June 2006.  Count 4 was alleged to have taken place on a date unknown between 31 May 2009 and 1 April 2010 at Mt Morgan.  The complainant was the applicant’s stepdaughter.  She was born on 11 June 1997 and was therefore eight years old on the first occasion and 11 or 12 on the second.  She was 13 when interviewed by police on 12 May 2010 and 14 in August 2011 when her evidence was pre-recorded.

[11] Her evidence in chief was given by way of verification of what she had said in the interview which was recorded pursuant to s 93A of the Evidence Act 1977.  In his outline of submissions, counsel for the appellant summarised her evidence in chief relating to the first occasion thus:

“d)The first incident she said happened late at night when everyone was asleep.  She said the appellant entered her room and was touching her.  She said that she was asleep in her room which she shared with her sister.  She said that the first thing she remembered was she was lying in her bed and she felt someone pull down her shorts and touch her.  When pressed by police for further detail she said that the appellant pulled down her shorts and her underpants and then ‘like he was touching me down there, like lifting my legs up and pulling them apart’.  She said that the appellant then started kissing her vagina and that his hand touched her on the vagina.  She further said that she didn’t know what part of her vagina the appellant licked and that as far as the appellant’s hands were concerned she didn’t know what he was doing, he was just touching her.  This part of the first incident particularised count 1.

e)The complainant said the appellant then pulled down his pants and she saw his penis.  She described it as straight.  She said she turned away and the appellant then said, ‘It’s alright.  Just touch it.’  She said, ‘No’.  The appellant then grabbed her hand and put it on his penis.  She described his penis as ‘really sticky and slimy’.  The complainant also said that she couldn’t see in the room as there was no light but that she knew it was the appellant because it sounded like him.  This part of the first incident particularised count 2.

f)After this she said that the appellant pulled up his pants and told her she could go back to bed but she could not tell anyone what had happened.  She said that after the appellant left she woke her younger sister and asked to sleep with her, which she did for the rest of the night.  She did not tell anyone what had happened.”

[12] Counsel summarised her evidence in chief relating to the second occasion thus:

“i)The final particularised count related to an incident that happened in the lounge room at the house they were then living in.  She said that she was in the lounge room watching a movie by herself while her mother, the appellant and others were drinking outside.  She said the appellant came in from the veranda drunk and pulled down his shorts.  She saw his penis and said ‘What the hell are you doing?’  He tried walking towards her and she quickly ran out, putting on her shoes and a jumper.  She said she went to a friend’s house nearby and told her friend what had happened.  She then lived with her friend for a time after that but did not return to living with her mother.”

[13] The appellant accepted that under cross-examination her account of the incidents was broadly similar to that which she gave in evidence in chief.[7]

[14] At the trial the appellant neither gave nor called evidence.  His case was that the alleged events never happened.  It was put to the complainant that she was lying and her character was put in issue.  It was suggested that she invented the first incident in an attempt to avoid moving with the family from Townsville to Mt Morgan.  The complainant's mother agreed in cross-examination that she and her sister Karen had discussed with the complainant whether the appellant had sexually assaulted her prior to moving to Mt Morgan:

“MR HIBBLE: Yes. I will. Can I suggest to you that – that Karen asked [the complainant] this question, ‘If [the accused] sexually assaulted you then you need to tell us because [the accused] is going to get into serious trouble if he did that to you and we'll have to tell the police.’?-- Yeah. Yeah, you know, I can recall that, yeah.

And [her] response, I want to suggest to you, is that she started crying, and she said, ‘Mum, I lied because I didn't want to move here’?-- Yeah.

Is that what [she] did?-- Yeah.”

Presumably the jury disbelieved her; the complainant denied uttering the italicised words and Karen was not called as a witness.

Preliminary complaint

[15] Immediately before the prosecutor opened the case, the jury were sent out to enable two questions regarding the admissibility of evidence to be argued.  Both questions could have been determined before the trial began pursuant to s 590AA(2)(e) of the Criminal Code.  In the event the jury were left to cool their heels (and to have lunch) from 11:41am until the court resumed sitting just before 2:30pm.  No explanation for the failure to deal with these matters before the trial began is apparent from the appeal record.  There may have been reasons which prevented that course from being followed, and I therefore intend no criticism of the parties in this case.  It is however appropriate to observe that lawyers involved in criminal trials have a duty to ensure that the trials proceed expeditiously, with minimal inconvenience to juries and witnesses.  In addition, determining points on a pre-trial application enables the judge to prepare for the application and to reserve the decision if necessary.  When matters can be resolved before trial under s 590AA, counsel and solicitors should be astute to have them so resolved.  I see no reason to assume that the jurisdiction to order costs against a lawyer personally is confined to the civil side.

[16] The only one of the questions which is now material is the admissibility of the evidence proposed to be adduced by the Crown from MS, the complainant's grandmother.  That evidence was about a complaint of sexual interference made by the complainant to the grandmother.  As evidence of the truth of what was said by the complainant, it was inadmissible as hearsay.  Unless it was admissible in relation to the complainant's credit under s 4A of the Criminal Law (Sexual Offences) Act 1978, the Crown could not lead the evidence (it was not suggested that it was admissible at common law as fresh complaint).  I assume that the onus lay upon the Crown to prove that the elements of the section were satisfied.[8]

[17] Section 4A provides:

“4AEvidence of complaint generally admissible

(1)This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.

(2)Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

…

(6)In this section—

complaint includes a disclosure.

preliminary complaint means any complaint other than—

(a)the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

(b)a complaint made after the complaint mentioned in paragraph (a).”

[18] Unfortunately, the Crown did not call the witness to give the evidence on the voir dire, as might have occurred had the matter been dealt with at a pre-trial hearing.  Instead, it placed before the judge a statement obtained from the witness on 12 May 2010, 18 months earlier.  It seems to have been assumed that the witness would give evidence in accordance with the statement. 

[19] Again unfortunately, no copy of the statement appears in the appeal record; it was not marked for identification.  Some idea of its content can be gained from what counsel said in submissions.  It appears that MS stated that in 2009, before Easter, she had a discussion with the complainant.  Presumably as the result of something said by the witness, the complainant said, “All right then, I'll tell you.”  Thereafter, she said to MS, “I was in the room asleep and then [the accused] came in and started putting his fingers in my pants.  That woke me up.”  The complainant did not specify when that event occurred.[9]

[20] His Honour was also given a transcript of the recorded police interview of the complainant.  Her subsequent pre-recorded evidence comprised a simple verification of the contents of the recording, which was tendered, and cross-examination.  Presumably his Honour also had a transcript of that evidence, but he was not referred to it in the course of the argument and did not refer to it in his reasons for his decision.

[21] The prosecutor submitted that the proposed evidence referred to a disclosure made by the complainant about the alleged commission of each of the offences charged in counts 1 and 2 on the indictment.  Those charges had been particularised.  Regrettably, the particulars are not in the appeal record.  Indeed, there is nothing in the record to indicate that they were ever given to the judge in writing.  That was another lapse by the prosecution.  Whenever the Crown delivers particulars of a charge, they should be filed or at least provided to the judge so they might be marked for identification.  In the event there was no challenge at the appeal to the description of them given to the trial judge by counsel for the accused:

“Particulars in relation to counts 1 and 2 are essentially that, late at night, after the complainant watched TV, the accused, who was effectively the stepfather, came into her bedroom.  He pulled her pants down and then performed an act of oral sex on her.  He then had the child play with his penis, and that is count 2, the procuring. That incident, on the dates currently on the indictment, is said to have occurred in the quarter of July to September 2005.”

[22] The defence submitted that what was said to MS could have been about one of numerous uncharged acts of sexual interference to which the complainant had referred in her evidence.  The court could not be satisfied that the complaint fell within the requirements of s 4A.  The defence rightly did not submit that under the section admissible evidence was limited to showing how and when a complaint was made, but not including the content of the complaint.[10]

[23] The task for the prosecution was therefore to demonstrate that when she spoke to her grandmother, the complainant was talking “about the alleged commission of the offence”.  “About” is a word of connection, in this context suggesting connection of subject matter.  “Commission of the offence” is a composite phrase.  It is capable of a narrow reading by which it would be limited to the doing of the precise act or the making of the precise omission rendering the doer or maker liable to punishment.[11]  It should not be given such a reading.  It would be inconsistent with the width of the word “how” and, more importantly, it would render the section of little practical utility.  People (or at least non-lawyers) do not usually talk with such artificial precision.  To the extent that the complaint includes evidence of the sequence of events surrounding the conduct constituting the offence, its content is made admissible by the section.  As McMurdo P has written, “The legislature, in enacting s 4A, plainly intended that the jury have the full context of any preliminary complaint or disclosure so as to most accurately assess the credibility (or lack of credibility) of the complainant and the complaint.”[12]

[24] Identification of the ambit of surrounding events referred to in the complaint which are made admissible by the section is a question of fact which will depend upon the circumstances of each case.  The controlling element is “about”.  There must be demonstrated connection of subject matter.  The connection may be demonstrated by commonality of time, place, event or conduct.  I agree with what was said by Chesterman JA in 2011:

“The authorities referred to by Ann Lyons J, R v AW [2005] QCA 152 and R v CAU [2010] QCA 46 … decide that the ‘how and when’ of a preliminary complaint about the alleged commission of the offence includes matters beyond the bare account of the offence.  For example, evidence of threats made by an accused in order to prevent the making of a complaint, and the context in which the complaint was made, as well as the substance of the complaint itself, are within the ambit of s 4A.  The evidence must still be ‘about the alleged commission of the offence’ with which an accused is charged.”[13]

[25] In a trial for a sexual offence, evidence of uncharged acts of sexual abuse by the accused against the complainant may be admissible for the purpose of explaining and rendering intelligible the complainant's account of the charged acts, or to show that he or she was not purporting to describe an isolated event if otherwise his or her account might appear implausible.[14]  It does not follow that references to uncharged acts in a complaint are “about the alleged commission of the offence”.  On the contrary, such references will normally not answer the statutory description.  Exceptional cases may exist where the uncharged acts form an integral part of the charged act (eg indecent dealing by touching immediately before an act of rape).  The courts do not encourage prosecutors to split up what is essentially one integrated course of conduct into multiple offences.  No bright line test can be stated save by reiterating the terms of the section.

[26] In the present case the conduct complained of comprised “putting his fingers in my pants”.  There was no indication in the complaint of when that conduct occurred, and it was made some 3½ years (give or take) after the offences were allegedly committed.  Moreover, the conduct complained of differed from the conduct particularised.  The latter involved removal of the pants, oral sex and procuring an act by the child.  To overcome those difficulties the prosecution relied upon the transcript to amplify the particulars.  There was no objection to that course.  The Crown submitted that the evidence showed there was touching in addition to oral sex on the occasion of the offence alleged.

[27] The evidence upon which the Crown relied was this:

“SCON OAKES: Yep, okay.  So tell me the first thing that you can remember about [the accused] coming into the room.

COMPLAINANT: Um, when I was just laying down, I felt someone touching me, like, pulling my shorts down.

SCON OAKES: Mmm-hmm.

COMPLAINANT: And then he just touched me down there and I got really scared and then soon as he got out of the room I slept with my sister.

…

SCON OAKES: Mmm-hmm, okay, all right.  You said to me that you could feel he was pulling your shorts down?  Yeah?  Just tell me everything about that part.

COMPLAINANT: Well, he was pulling my shorts and my pants down and I got really scared.

SCON OAKES: Mmm-hmm.

COMPLAINANT: And, um, he started lifting – he was touching me down there, like, lifting my legs up, pulling them apart.  And then he started kissing me but I tried to pull away from him and then he just pulled down his shorts right in front of me.

…

SCON OAKES: Can – tell me – tell me more about that, what did he do with your legs?

COMPLAINANT: Like, he lifted it up and then he spread it apart.

SCON OAKES: Your legs?

COMPLAINANT: Yep.

SCON OAKES: Mmm-hmm.  Okay.  And then what did he do?

COMPLAINANT: And then he started, ah, licking me down there.

SCON OAKES: Okay.  I know it’s hard to talk about, Tegan, okay, but when you say ‘licking me down there’, what part – what was he doing with – what part of his body was he using?

COMPLAINANT: His mouth.

SCON OAKES: Mmm-hmm, yep.  And what was he touching on your body?

COMPLAINANT: His hand.

SCON OAKES: Yep, mmm-hmm.  So his hand, where was his hands touching you?

COMPLAINANT: On my private part.

SCONE-OAKES: Mmm-hmm.  You – you call it your private part, Tegan, have you got another name for that part, just so I know what you’re talking about?

COMPLAINANT: Vagina.”

[28] There was a difficulty with that submission.  As counsel for the accused pointed out, at the outset of the interview, asked to tell the interviewing officer “everything about your mum’s husband”, the complainant said, “And probably when I was, like, eight or something he touched me, and then he just kept going until last year and then I wanted to be with my grandparents.”  In addition, later in the interview she referred to a time when she was 10 when he “kept on doing it”, indicating that the appellant touched her again.  Counsel submitted that his Honour could not be satisfied that the complaint referred to a charged act rather than to the uncharged ones.

[29] The trial judge ruled the evidence admissible in relation to count 1, holding that in the interview, “reference is made to both touching of the vagina and oral contact in the context of one transaction, namely that constituting count 1”.

[30] When MS was called before the jury, she was not asked and did not say when the complaint was made to her.  That left open the possibility that it was made after the complainant gave a formal witness statement to a police officer.  If that happened, it would not be admissible because it would not fall within the definition of preliminary complaint in s 4A.  Defence counsel did not attempt to use this omission to have the question of admissibility reopened, and disclaimed any such point in the appeal.  That was sensible.  There is no reason to suppose that the matter would not have been clarified on the voir dire, had application been made.  The omission was nonetheless unfortunate.  It meant that the prosecution failed to lead evidence in one of the two categories specifically permitted by the Act (when the complaint was made) and it left the way open for the jury to assume that the complaint was made much earlier than in fact it was.  Nothing now hangs on this.

[31] The other thing evidence of which s 4A makes admissible is how the complaint was made.  On that topic MS testified:

“Did - did [the complainant] tell you something about something that happened between her and - and [the accused]?-- Yes.

What was that?-- Well, I asked her a question.  She stayed at my place for about two weeks.

What did she say, MS?-- And I called her in the room and I asked her what was going on, why didn’t she want to go home to her mother.

What did she actually say to you, MS?-- Well, she wouldn’t say for a while and then she said well mum wants [the accused] and I don’t want to say anything but I'll tell you.  She said that [the accused] was going into her bedrooms, into their bedroom and things were happening and she woke up.

Did she say what things?-- Yes, she said that he was putting her - his hands down her pants and she woke up.

Did she say anything else?-- I can't remember.”

Then, in cross-examination:

“And you asked her [the complainant] then, did you tell your mum what happened?-- Yes.

Yes. And then did [she] respond, ‘I told her the next morning but she didn’t believe me, she just gave me money to go the shop’?-- Yes.”

[32] The last answer provided a reference point: the event which was the subject of the complaint occurred the night before she told her mother what happened.  In her police interview the complainant had said that she complained to her mother “when he first started”, “after that first time”.  She said her mother didn’t believe her, that she told her mother a second time and “just kept telling her”.  Somewhat inconsistently, she had also said that at the end of the occasion giving rise to counts 1 and 2, the appellant told her not to tell anyone, threatening that if she did something would happen, and, she said, “then I got really scared so I didn't tell anybody”.  The inconsistency was resolved in her cross-examination:

“And you say that just out of the blue he came into your bedroom at night and did the things you've described to the police?-- Yes.

And you didn’t - did you complain to your mum?-- Yes.

That's the next morning?-- No.

When did you complain to your mum about that incident?—A couple of years later.

Why did you wait a couple of years to complain to your mother about what this man had done to you in that - in that room?-- Because he told me not to tell and I was really scared.”

[33] While the complainant's cross-examination did not conclude the matter (MS might have been wrong in her version of what the complainant said about the timing of the complaint to her mother), it made it very difficult to conclude that the event of which she complained to MS occurred on the night of the incident from which the first two counts arose.

[34] The respondent submitted that on the evidence, the only occasion of touching alleged to have wakened the complainant was the one the subject of counts 1 and 2.  It submitted that the complaint should therefore be understood as relating to that occasion.  That submission is unpersuasive.  The circumstances surrounding the uncharged acts were (rightly) not investigated in detail and it would be wrong to assume that none of them involved waking the complainant during the night.

[35] The ground of appeal here under discussion alleged error in the trial judge’s ruling that the evidence of MS was admissible as preliminary complaint.  In my judgment, such an error occurred.  Strictly speaking the appeal would lie not against the ruling itself, but against the subsequent admission of the evidence.  I see no reason to confine a determination of the correctness of the admission of the evidence to the materials put before the judge at the time his ruling was made or even to the facts which were established at the time the ruling was given.  I hold that the Crown did not prove that the complaint to MS was about the alleged commission of the offence by the defendant.  The evidence was not admissible under s 4A.

Miscarriage of justice

[36] The appellant submitted that the admission of the evidence of MS amounted to a substantial miscarriage of justice.  The respondent submitted that even if MS’s evidence was wrongly admitted, the appellant was not disadvantaged thereby.

[37] The trial judge directed the jury in conventional terms, making it clear that MS’s evidence of the complaint made to her could only be used in relation to the assessment of the credibility of the complainant.[15]  He directed them that inconsistencies between the account given to MS and the complainant’s evidence might cause them to have doubt about her credibility or reliability.  He had told them that they could not regard the things said by MS as proof of what actually happened.  There is no complaint about this aspect of the summing up.

[38] The essence of the complainant’s evidence has been set out above.[16]  The only point of consistency between it and what she told MS is that the appellant put his hand in her genital region.  In the circumstances of this case that does not demonstrate consistency with her evidence so as to embellish her credibility.  The inconsistencies were substantial.  In her evidence she said that he removed her pants, whereas to MS she said that he put his hand inside her pants.  She made no mention to MS of his licking her on the vagina, nor of his placing her hand on his slimy penis, matters of far greater moment then putting his hand inside her pants.  Of course the verdict on count 1 necessarily meant that the jury accepted her credibility notwithstanding the inconsistencies.  They were entitled to do so; they may have felt that a young girl, even one who had admitted to using foul language and lying, would be embarrassed at having to recount those lurid details to her grandmother.  The point here is that it was open to the jury to find or not find inconsistency between the two accounts.  It was not open to them to find consistency.

[39] It should be pointed out that the judge also left to the jury the question whether the statement to MS reflected the nature of the complaint in count 1.  That was in effect the same issue of fact as determined the admissibility of the evidence.  In the light of his Honour’s ruling on admissibility, he was in my judgment correct to do so.  The ruling gave the jury a further opportunity to disregard MS’s evidence.

[40] In my judgment his Honour’s ruling gave rise to no miscarriage of justice.  Ground 1 fails.

Unsafe and unsatisfactory

[41] The appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt because in cross-examination, the nature and extent of the alleged sexual abuse increased substantially by comparison to what had been alleged in her interview with the police; and because despite its moderate tone, she walked out of the room during the cross-examination.  It will be observed that both of these reasons relate to the complainant’s credibility.  Doubtless that is because, as the appellant submitted, her “credibility and reliability … was the paramount consideration for the jury”.

[42] In support of his submission the appellant cited the decision of the High Court in Mv The Queen.[17]  There the Court held that it is sometimes possible to resolve questions of a witness’s credibility by reasoning which is independent of the witness’s demeanour.  In such cases an appellate court is bound to apply its own view on the question:

“It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”[18]

Although it was not explicitly spelt out, the implication of the submission was that the two matters relied upon were evident on the record, and were such that, even making full allowance for the advantages enjoyed by the jury, there was a significant possibility that the appellant was innocent.

Changes in evidence

[43] In her interview with the police the complainant referred to uncharged events.  She said that the appellant touched her when she was approximately 8 years old “and then he just kept going until last year”.  (She turned 12 in 2009.)  The effect of that statement was somewhat negated when the police officer later asked her, “I know you mentioned to me that when you were 10 he just kept on doing it, yeah?  So were there lots more times?” and she answered, “No, not that I can remember”.  Regrettably, the question misstated her age, but it is not unreasonable to assume that she was unable to remember any other specific incidents.

[44] That remained the position when she was cross-examined 15 months later.  She made no attempt then to gild her answers with additional detail.  Nor, it seems to me, did her answers squarely convey any allegation of increased frequency of sexual encounters.  The question arose in the context of her cross-examination about complaints made to MS and to her mother.  Her evidence was:

“Okay.  So you didn't - you didn't - you didn't tell MS that [the accused] came in and started putting fingers in your pants and that woke you up.  You didn't tell MS that?-- No, I just told her that he touched me.

Touched as in one touch?  Or did you say that he'd been touching me?-- Yes, he's been touching me.  Yes, I told her that.

…

So when you told your mother, there'd only been once incident, hadn't there?  That is, he'd come into your room when you were about eight, licked your vagina and got you to touch his penis.  There'd only been that incident, hadn't there?-- No.

Well tell me-----?-- He's done it a few times.

Well, tell me about the other occasions then?-- He's just been touching me down there like every single night.

Every-----?-- Every time everybody went to sleep.

What, he would just come in in the middle of the night and touch you on your vagina?-- Yes.

You never told that to police, did you?-- No, but I've told the police that he's always been touching me.

Mmm.  But you're now saying that he came in almost every night and touched you on the vagina?-- Well not every single night.

Well, once a week, twice-----?-- I don't know, I was - I was only little.

But are you saying that he came in on more than one occasion, which you've described to the police, and touched you on the vagina?-- Yes.”

[45] That evidence demonstrates an exaggeration made under pressure and promptly withdrawn.  It does not in my judgment demonstrate a substantial increase in the nature and extent of alleged sexual abuse.

The complainant's walkout

[46] I have viewed the recording of the complainant’s cross-examination.  It clearly shows that the complainant was under stress and repeatedly tearful from the start of the cross-examination to the time she stood up and walked out.  Twice there were pauses initiated by the judge to enable her to regain her composure.  She frequently buried her head in her hands on the table so that only the top of her head was visible.  She seemed to be an unlettered girl; she did not understand the meaning of “occurred”.  She seemed to become exasperated or even frustrated by the questions.  After 29 minutes of questioning she said, “I give up.  I want to go” and walked off camera.  Her demeanour when she walked out seemed to show a strong desire not to undergo any further questioning.

[47] The appellant submitted that the substantial expansion of the extent of her allegations in cross-examination ought to be seen in the light of her behaviour in walking out of the room during cross-examination.  That behaviour as I saw it certainly damaged her credibility.  However I am unable to see that it had any particular impact or relevance to the passage of exaggerated evidence set out above.  The alleged exaggerated evidence came 55 minutes after the walkout.  I do not see that the behaviour cast any light on the allegations, nor did it have any significant effect on the probative force of her evidence.

[48] Ground 4 in the notice of appeal should be rejected.

[49] I should add that I have not attempted to make my own assessment of the complainant’s credibility on the evidence taken as a whole and I have not looked at the recording of the police interview.  It was not submitted that the weight of the evidence necessitated a reasonable doubt as to the complainant’s credibility, so I see no reason to do so.  It is clear that on paper, the evidence raised numerous doubts about the complainant’s credibility.  The jury must have been aware of these doubts, from their observation of the cross-examination, the addresses and the summing up.  There is no reason to doubt that they took them into account.  Were such a submission to be made, it would be necessary to consider the proper application of the passage cited above to the question of a witness’s demeanour where, in a case such as the present, the whole of the witness’s evidence has been video recorded.  In such a case the jury is in no better position to assess demeanour than an appellate court.

Orders

[50] I propose the following orders:

1. Grant leave to appeal on the ground that the convictions were unsafe and unsatisfactory.

2. Appeal dismissed.

[51] MARTIN J:  I agree with the analysis by Fryberg J of s 4A of the Criminal Law (Sexual Offences) Act 1978 and the conclusions that flow from that analysis to the effect that the evidence should not have been admitted but that no miscarriage of justice resulted from its admission.  I also agree, for the reasons given by Fryberg J, that the appellant has failed to make out the ground that the verdict was unsafe and unsatisfactory.

[52] With respect to the effect and requirements of s 668D(1) of the Criminal Code, and the consideration given to them by Fryberg J, I agree with the reasons of Holmes JA on those matters.

[53] Otherwise, I agree with the orders proposed by Fryberg J.