R v Ambury[2012] QCA 178

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by her Honour, and with her reasons. 

[2] HOLMES JA: The appellant appeals his conviction by a jury of one count of maintaining a sexual relationship with a child and three counts of rape.  He was acquitted of a further two counts of rape, while another rape count was the subject of a nolle prosequi in the course of the trial, because it could not be established that the offence alleged had occurred within the jurisdiction.  The grounds on which he appeals are that the trial judge erred in admitting evidence of changes in behaviour of the complainant, F, as evidence of distress and in directing the jury that it supported F’s evidence; and that the guilty verdicts are unreasonable and inconsistent with the acquittals.

F’s evidence

[3] F was born in November 1992.  The appellant began to live with F’s mother in December 2003, and married her in July 2005.  The evidence was that F, his mother, his sister and the appellant had moved to a house in Warwick Road, Ipswich in mid-February 2005; that F’s sister moved out of the house soon after her sixteenth birthday in August 2005; and that F, his mother and the appellant moved to a house in Avon Street, Ipswich in 2008.  Count 1, the maintaining charge, was alleged to have occurred between 31 December 2004 and 5 June 2009.  The rapes left to the jury were alleged to have occurred in various intervals between those dates, at Ipswich.

F’s evidence of the offences

[4] F was a couple of days short of turning 19 at the time he gave evidence at the trial.  He said that when he was in the middle of grade eight and aged about 14, he and his sister, who was two years older, had an argument on the way home from school to the Warwick Road house.  It culminated in their each “dobbing” the other in for smoking.  Later that afternoon, F had been playing a computer game when, at the appellant’s suggestion, he joined him downstairs for a smoke.  After F had a cigarette, the appellant, who was sitting on a plastic chair, asked F to sit on his lap.  Although the boy refused, the appellant pulled him onto his lap and pulled his school shorts and underwear down, despite his protestations and his attempts at pulling his clothes back up.  The appellant penetrated F’s anus with his penis, which he pushed in and out.  That lasted for four or five minutes until they heard F’s mother call that dinner was ready.  The appellant told F to get off and pull his pants up.  The boy did so, then went upstairs to the toilet and wiped himself.  He saw that there was ejaculate on his leg and bottom and blood and ejaculate on the toilet paper.  That event was the subject of count 2 on the indictment.

[5] F said that a couple of weeks or a month later, the appellant again asked him to come downstairs for a smoke.  Again he asked him to sit on his lap, was refused, and pulled F onto his lap.  He removed F’s shorts and pulled down his own, then put his penis in the boy’s anus, pushing it in and out (count 3 on the indictment).  When the appellant had finished, he told F to “hop off”, and both pulled their pants up.  Again, F went upstairs to the toilet and found ejaculate on his leg and bottom and blood on the toilet paper.  His mother was home; he was not sure where his sister was.  According to F, in the course of that incident, the appellant said,

“Don’t tell anybody.  This is a secret between us, or your mum and sister will get hurt”.

[6] When F turned 16, he took a job working at a nightclub in Ipswich.  He and the appellant often went fishing together.  On one occasion when they went fishing at night, the appellant told F to sit on his lap and removed his track pants.  Again, he anally penetrated the boy.  It was painful and F cried.  (This event was the subject of count 5 on the indictment.) Later, it began raining and they returned home.  The family at that time was living in Avon Street, where they remained for between 18 months and two years.  While they were living there, F’s mother and the appellant had a baby daughter.

[7] F said that the appellant had sex with him every couple of days while they were living at Avon Street.  On no occasion did he consent to sexual intercourse.  F remembered a particular occasion when he and the appellant were cooking dinner on a barbeque in the carport at the Avon Street house.  The appellant took him by the waist and bent him over a car parked there.  He pulled down F’s shorts and underwear and penetrated his anus again.  F asked him to stop, saying he was feeling sick, but the appellant persisted.  The penetration was painful, and the appellant was holding F around his waist with some force; he noticed a bruise on the left side of his waist the next morning.  After a couple of minutes, the appellant asked whether F wanted him to ejaculate in his mouth or his anus.  F responded, “Nowhere”, but the appellant pulled him towards himself, pushed him down, put his penis in F’s mouth and ejaculated.  F spat out the ejaculate.  Both pulled their clothes up and they went inside for dinner.  That evidence was the subject of count 4, the first of the two counts on which the appellant was acquitted.

[8] The next incident of which F gave evidence occurred on a weekend when F and the appellant went camping and fishing.  It was the subject of count 6, in respect of which a nolle prosequi was entered because, on the appellant’s account, the camping trip involved was near Murwillumbah, while F could only say it was some one and a half hours drive from Ipswich.  At that stage both of them were working at the nightclub, F collecting glasses and the appellant as a bouncer.  They arrived at the camping ground in the evening, set up a tent, did some fishing and cooked dinner.  They had a large blow-up mattress on which they were to sleep.  That night the appellant rolled over to F, who was facing away from him, put his arm over him and began to kiss his neck and face.  He stopped briefly to turn off the electric lantern before resuming his activities.  He then rolled F onto his stomach, lay on top of him and had anal sex with him.  The next morning F got up early and did some fishing for about half an hour before the appellant woke and proposed that they leave straight away.

[9] The final incident of which F gave evidence was the subject of count 7, of which the jury acquitted the appellant.  F was asked to identify the last time that anything had happened between him and the appellant.  He responded that he knew it was at Avon Street and it was “the same thing over the car” but he could not remember other details.  At some point while they were living at that address, the appellant and F’s mother had separated, the appellant moving back to his parents’ house; this rape occurred  a couple of weeks before the appellant had moved out.  Questioned further, F was able to elaborate a little more.  He said the appellant asked him to have a smoke with him.  They went to the carport area of the house and the appellant pushed him against the car, again pulling his pants down and having anal sex with him. 

[10] F said that shortly after the appellant moved out of the Avon Street house, he told a former girlfriend that the appellant had raped him.  In November 2009, he told one of his mother’s former boyfriends and, soon after, his mother, of the rapes.  He was taken to the police to make a complaint.  F’s mother, however, said that he first told her that he had been abused by the appellant in October 2009, during a telephone conversation.  In the same conversation, she told him she had decided to stop the appellant from seeing their daughter.

F’s statements under cross-examination

[11] In cross-examination, F said that from the time the appellant started having sex with him, he no longer wanted to know him.  Notwithstanding, he had often gone fishing with him, taking every opportunity to do so.  When they were both working at the nightclub, the appellant had, on a couple of occasions, given him a lift home.  He said that he had made no attempt to see the appellant once the appellant and his mother separated.  When the appellant came to his baby sister’s first birthday party in September 2009, he stayed in his room most of the day with his girlfriend and another friend. 

[12] F was shown Facebook messages sent to the appellant in July 2009, apparently from him.  Those messages adverted to the family’s financial difficulties and the fact that F had just been laid off work.  Among other things, the messages said that F and the appellant were “like best friends”, that the family missed and loved him and that he belonged with them; and suggested that the appellant and F’s mother undertake conciliation.  F said that he did not remember any of the messages and that at about that time his Facebook and email accounts had been hacked by various friends.  The appellant and his mother both knew his Facebook password.

[13] Fagreed that he had told the first police officer to whom he reported the offences in November 2009 that they had occurred between 2006 and 2008.  He agreed also that he had not said to the officer who interviewed him anything about the appellant ejaculating into his mouth, nor had he mentioned it at the committal in December 2010.  It was something he had only remembered two or three days before the matter was originally to go to trial in early October 2011.  However, he said, it was something that had happened on a number of occasions at both Warwick Road and Avon Street.  When he recalled the matter in early October 2011, he made a statement in which he gave an account of anal penetration and the appellant ejaculating in his mouth, which he said had occurred at the Warwick Road house, not at Avon Street.

The medical evidence

[14] A doctor who had examined F in January 2010 said that F had told him that he had been sodomised over a period of about four years by his step-father.  He examined the boy’s anal area and found two short parallel well-healed scars next to the anal opening.  Such scarring could be found in the context of sodomy, but could also appear where there was significant constipation.  In the latter case, however, the tearing usually originated inside the anus as well appearing in the external skin.  He had not seen any scarring on F extending into the anal canal.  The colour of F’s scarring indicated that it was fully healed and at least 12 months old.  The doctor had examined notes made at the Ipswich hospital in respect of F’s attendances there from December 2004 through to March 2006.  On five attendances F was noted to be markedly constipated, and in late 2005 he was being treated with paraffin for the condition.  The scarring the doctor observed was consistent with the type of tears he would expect from resisted anal penetration, but he could not say absolutely that they were not caused by constipation. 

[15] F’s mother was asked about his treatment for constipation; she said she did not recall taking him for treatment for that condition or his ever suffering from it; she had taken him to the hospital for vomiting and diarrhoea.  F said that he had been treated as a small child for constipation but not since; in more recent times he had had occasional bouts of vomiting and diarrhoea.

The appellant’s evidence

[16] The appellant said that his relationship with F had been tense; F did not like being disciplined or doing chores.  F threatened suicide on a number of occasions, and, in one instance, tried to choke himself with a towel.  F often came downstairs to talk to the appellant when he was smoking there, but there was no sexual activity between them at any time.  From time to time F’s mother and sister joined them there.  When the family was living at Avon Street, the appellant smoked outside; once F turned 16 he was allowed to smoke with him.

The appellant’s submissions as to the unreasonable verdicts ground of appeal

[17] The appellant contended that the acquittals on counts 4 and 7 could not be reconciled as logical and reasonable.[1]  Their divergence from the other verdicts compelled a conclusion that F’s overall credibility was so diminished that the jury should have acquitted on other counts.  That factor, taken with a number of other aspects of F’s evidence, should, it was said, lead to a conclusion that the verdicts were unreasonable.  The other aspects included the fact that F willingly went alone with the appellant to various places including locations where he alleged he had been raped frequently: downstairs at Warwick Road; the carport at Avon Street; and fishing spots.  So, for example, after the first occasion of rape, F nonetheless went willingly downstairs with the appellant on a second occasion, although at that time there had been no threat made to him.  It did not seem that he was in abject fear of the appellant; in his own evidence he had said that he constantly argued with the appellant as well as with his mother. 

[18] F had failed to seek assistance from his mother or his sister, although one or both of them were on the premises during the rapes.  It was generally implausible, it was submitted, that the rapes at Avon Street occurred at a frequency of every day or every second day, and in particular it was unlikely that after years of sodomy F would have experienced the pain he complained of in respect of the count 4 rape.  And it was improbable that the appellant would have assaulted F under the house at Warwick Road, where there was a high risk of discovery; F’s sister had given evidence that she used to go downstairs to smoke.  It was also implausible that the rapes could have occurred in the manner described by the complainant, particularly those in which the appellant was said to have been sitting in a plastic chair.

[19] The messages which F sent to the appellant in July 2009 showed that he was upset when the appellant left the family; his explanation of his account being hacked was inherently incredible.  Other evidence showed that the content of the messages was consistent with what was happening in mid-2009, so as to confirm that they were indeed sent then: F had, in fact, been laid off in July 2009.  It was significant that the complaint to the police was made after the custodial dispute arose between F’s mother and the appellant over his access to their daughter, and its effect was to prevent the appellant from seeing his daughter.

[20] There were inconsistencies between F’s evidence and other evidence.  F and his mother had denied his history of constipation, although the medical records showed that it had occurred, and they should accordingly be regarded as willing to give untruthful evidence.  There was an inconsistency between F and his mother as to when she became aware of the rapes.  F said that he went to police with his mother’s then boyfriend in November 2009 and then revealed to her what had happened, but his mother said that he told her about the abuse during a phone call in October 2009.

Conclusions

[21] The test for whether jury verdicts manifest inconsistency is “one of logic and reasonableness”[2], but

“if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions are required, that conclusion will generally be accepted”.[3]

There were features of F’s evidence in relation to both counts 4 and 7 which may have caused the jury to question the accuracy of his recollection, without necessarily doubting his general honesty. 

[22] F admitted under cross-examination that he had not recalled the appellant’s ejaculating into his mouth until October 2011.  When he made a statement then about the occurrence, he said it had happened at the Warwick Road house, not at Avon Street.  Those features were sufficient to make the jury doubt that he could now recollect with accuracy the occasion the subject of count 4, without casting any larger shadow over his reliability.

[23] In relation to count 7, F began his evidence by saying that he could not remember details.  One of the few particulars he was able to give was that it was the last occasion of rape, and occurred shortly before the appellant moved out of Avon Street.  But under cross-examination, F agreed that he had previously said that the last rape he remembered occurred on the camping trip.  Those were matters which the jury may have considered affected the quality of his recall, as compared with his evidence on other counts; again, without necessarily reflecting on his honesty generally or his reliability in respect of the other offences of which he gave evidence.

[24] Nor, in my view, do the other features of F’s evidence to which the appellant refers lead to a conclusion that the verdicts were unreasonable.  It was plain that F did spend a great deal of time with the appellant, yet he denied sending the Facebook messages and averred that he had not wanted to associate with the appellant from the time of the first rape.  But the jury may have thought, with considerable reason, that their relationship was likely to have been somewhat more complicated than that.  There was an amplitude of evidence that F was a troubled and lonely boy; the jury could quite well have concluded that he was more dependent on the appellant’s affections than he was prepared to admit, without doubting the authenticity of his account of the appellant’s sexual dealings with him.

[25] Although the risk of discovery at Warwick Road was raised as militating against the probability of F’s account, the encounters he described there were relatively fleeting.  And the jury may have thought that F overstated the number of times sexual intercourse occurred at Avon Street, but nonetheless accepted his account of specific events.  The appellant’s suggestion here that F could not have found the rape the subject of count 4 painful after repeated experiences of sodomy had no basis in any expert or other evidence.  It was not put to F in cross-examination that the way in which he described the rapes as occurring was not physically possible; the jury were entitled to accept his account.

[26] As to other matters, the jury may have considered that the denial by F and his mother that he had suffered from constipation was no more than the product of a genuine lack of appreciation of what his treatment had been directed to; there was no evidence from anyone that the condition had been explained to them, as opposed to being recorded in the hospital notes.  The inconsistency as to when F’s mother was made aware of the abuse seems inconsequential; and it was a matter for the jury how much significance it attached to the fact that the complaint to the police was made in the context of a custodial dispute between F’s mother and the appellant. 

[27] Having regard to the jury’s advantage in having seen and heard F give evidence, I do not think that the identified weaknesses in his account must have led them to the conclusion that he was not a witness of credit.  They were entitled to accept and act on his evidence about the offending so as to be satisfied beyond a reasonable doubt of the appellant’s guilt of the counts of which he was convicted.  Nor does consideration of his evidence in the larger context of the whole of the evidence at trial give rise to a concern that that an innocent person may have been convicted. 

[28] There remains, however, the question of whether evidence as to an alteration in F’s behaviour ought to have been admitted, because it was potentially a significant factor in the jury’s acceptance of his evidence.

The evidence of a change in F’s behaviour

[29] Evidence of the change in F’s behaviour was led as demonstrating distress, which, it was said, was corroborative of his evidence as to the offences.  Before any assault by the appellant, F conceded,

“I was a bit angry...a bit of a bad kid.  I used to get picked on at school a lot and that used to make me a bit angry”.

There was a change after the appellant began to have intercourse with him:

“I started losing the plot real easy, arguing all the time with my mum and Chris.  We used [to] just fight about anything...”

Asked what caused the change, he said,

“I was just angry and hurt and upset about what happened to me, it was – everything was getting to me...About Chris having sex with me and getting picked on at school all the time, everything just got too much for me and I started losing the plot”.

[30] F’s mother and sister both gave evidence on the subject.  F’s sister said that while they were living at Warwick Road, F and the appellant got along well at first, but her brother’s attitude changed a month or two after the move.  He seemed angry and never wanted to be around the appellant by himself.  However, he went downstairs to smoke with the appellant almost every night.  She agreed that her brother was not very happy at school “[because] he was bullied a lot”.

[31] In about March 2005, F’s mother said, she began a job which involved night shifts.  About then, she noticed F changing, becoming very withdrawn, angry and aggressive.  He would ask her not to work night shifts because he did not want to be left home alone with the appellant; he seemed very upset.  On the other hand, she said that when the family lived at Warwick Road, the appellant and F would spend an hour or more under the house before dinner every day, smoking together.  While she was married to the appellant, he and F went fishing once a week or once a fortnight. 

[32] Under cross-examination, F’s mother agreed that she had taken him to hospital in January 2005, because he had threatened to kill himself, tying a towel around his neck.  Before they moved to the Warwick Road address, he had been bullied and teased at school and the bullying problems continued through 2005.  She agreed that a reference in the Ipswich Hospital notes to her starting a new job in May 2006 (which, in context, could only have been the one involving night shifts) was correct.  In re-examination, she said that F became more aggressive, withdrawn and upset after they moved to Warwick Road; he began harming himself and would beg her not to go out.  His behaviour improved when she gave up doing night shifts.

[33] No objection was taken to the evidence about the change in behaviour, but counsel for the appellant at trial submitted that the evidence was not sufficient to be regarded as corroborative.  The trial judge referred in her summing-up to the evidence that F’s behaviour became worse after the family moved to Warwick Road.  She directed the jury that if there were more than one inference reasonably open, they must draw the one favouring the appellant.  They could use the evidence as supporting F’s allegations only if they accepted the evidence of his mother and sister as reliable and if they were satisfied beyond reasonable doubt that the mood or behaviour change was the result of the offending.

The appellant’s submissions as to the behaviour change evidence

[34] The appellant submitted that the evidence of changes in F’s behaviour should not have been admitted.  Where the relationship between a condition of distress and the offence alleged was tenuous or remote, the duty of the trial judge was to withdraw it from the jury as a circumstance capable of amounting to corroboration:  R v Williams.[4]  This was such a case. 

[35] The appellant’s first point was that there was no clear temporal connection between the start of the offending and changes in F’s behaviour.  There was a variety of versions as to when the offending had actually started:  F had said it was when he was 14 years of age, in which case it could not have commenced before November 2006; that it began in the middle of grade 8, which meant that it had commenced in June 2005; that it had occurred from 2006 to 2008; and that it had happened when he had been living at Warwick Street for a couple of months, which would put it at approximately March 2005.  It was only the last which could be connected with the evidence of his mother and sister.

[36] The evidence of F’s mother was that his behaviour had changed in about March or April 2005, while his sister gave evidence that it altered a month or two after they moved to the Warwick Road address.  His mother appeared to think that the changes in her son were manifested about the same time she began the job which required her to work night shifts, but her concession of starting the new job in May 2006 made that evidence dubious.  Neither F’s mother nor his sister gave evidence of any particular distress witnessed on any occasion when, on F’s account, he had been raped.  F’s sister said he did not want to be with the appellant by himself, but in contradiction of that statement she gave evidence that F went downstairs nearly every day and night with the appellant.  There was nothing to link the evidence of the alleged changes in behaviour to the alleged offending.

[37] The appellant’s second point was that there was evidence of significant behavioural disturbance exhibited by F before any offending was alleged.  He had said himself that he had been “a bit angry...a bit of a bad kid” and the evidence was that he had threatened suicide in January 2005.  He had problems with bullying at school which began before, and continued throughout, 2005.

Conclusions

[38] In my view, it is far from established that evidence of general behavioural change of the kind relied on here is admissible to support a complainant’s account.  Counsel for the respondent was able to point to only one relevant authority: R v H.[5]  In that case, evidence was led about changes in a five-year old complainant’s behaviour about the time of the alleged incident of indecent dealing; his mother said that he began to wet his pants, his eating habits altered and he was unresponsive to her questions about what was wrong.  She had not, however, raised any of those issues with anyone else and there was no expert evidence to connect the child’s reaction with the alleged incident of sexual abuse.  This court concluded that no inference could reasonably be drawn of a causal connection between the matter of the complainant and the child’s condition.[6]  It may be seen that the behavioural change alleged, unlike what was described here, was specific and limited.  Nothing in that case suggests a broad view of what is available as corroborative evidence.

[39] However, it is unnecessary for present purposes to explore the limits of what may be led.  The appellant’s contentions about the absence of a clear causal relationship must be accepted.  The changes in behaviour which the Crown relied on were not linked to any specific incident of sexual abuse; there was considerable uncertainty about whether even a temporal connection between them and the commencement of the offending could be made; they reflected, at the highest, a worsening of an already present behavioural pattern; and there were inherent contradictions in what was said of F’s reluctance or otherwise to be in the appellant’s company.  The relationship between F’s behaviour and the offending is correctly described as “tenuous or remote”.  The evidence should not have been left to the jury as capable of corroborating F’s account.[7]

[40] Counsel for the respondent here suggested that the trial judge’s direction which, in essence, told the jury that they could use the evidence only if they were, in any case, satisfied beyond a reasonable doubt that the offending had occurred, effectively neutralised the evidence.  Although, in my assessment, the jury was entitled to accept and act on F’s evidence so as to make their verdict otherwise a reasonable one, this was, as counsel for the appellant said, a finely balanced case.  There is a real risk that a miscarriage of justice occurred because the jury regarded the evidence as lending support to F’s account; and one could not derive any confidence that they reasoned otherwise from the fact that the trial judge’s direction was, with respect, somewhat circular and confusing. 

[41] In my view, the appellant has made out this ground.  The appeal should be allowed, the convictions quashed and a re‑trial ordered.

[42] MUIR JA: I agree with the reasons of Holmes JA and with the orders she proposes.