R v RAK[2012] QCA 26

SUPREME COURT OF QUEENSLAND

[1] FRASER JA: I agree with the reasons for judgment of North J and the orders proposed by his Honour.

[2] WHITE JA: I have read the reasons for judgment of North J and agree with his Honour’s reasons and the orders which he proposes.

[3] NORTH J: On 16 December 2010, the appellant was convicted upon a verdict of a jury on two counts of Indecent Dealing with a Child under 12 Years of Age.  The complainant child was his daughter born on 6 November 1997.  The appellant was acquitted on a third count of Indecent Dealing with the same child.  All offences were alleged to have occurred between 1 January 2006 and 26 June 2008.  On both counts, the appellant was sentenced to three years' imprisonment, the terms to be served concurrently. 

[4] The appellant appeals against both convictions and has sought leave to appeal the sentences imposed on the grounds they were "manifestly excessive".  It is necessary to address the appeal against convictions before considering the sentence.

Grounds of Appeal

[5] At the hearing of the appeal, the appellant relied upon the following grounds[1]:

"1.The verdicts of the jury were unreasonable and cannot be supported having regard to the evidence, in particular the inconsistent evidence of [the complainant].

2.The verdicts of the jury were inconsistent in a manner which no reasonable jury who had applied their minds properly to the facts in the case could have decided. 

5.Irrelevant and inadmissible material in the Police Interview with the complainant …. was led before the jury, thereby resulting in a miscarriage of justice."

The Evidence of the Complainant

[6] The complainant was born on 6 November 1997.  She was approximately ten years of age at the time of the three offences charged against the appellant.[2]  When she was interviewed by police officers, the day after she first complained of the offences she was ten years of age.  She was twelve years of age at the time her evidence for the trial was pre-recorded.

[7] In short, her allegations were that at night the appellant would come into her bed, which she sometimes shared with her sister, L, and would engage in intercrural sex with her. 

[8] Of the first charged occasion, she said that "he put his penis in between my legs and put his leg over the top. … I was awake and he kept on wiggling around."  She went on to say, "I felt his penis between my legs and I woke up because he was pulling down my pants".  She said it was "around my vagina, but it was um, under my pants."  When asked how she knew that it was her father's penis, "because it was soft and squishy and it was in between his legs, and in between mine".[3]

[9] Of the circumstances concerning the second offence charged in Count 2, the complainant said:

"He came in behind me again, and he started pushing in towards me and putting his leg over the top of me and putting his penis in between my legs and like, he tried to hug me but his leg was over the top of me and one of his arms was underneath me and the other over the top of me, and I was lying on my side, facing L.  L was facing the door and Dad was facing me and he was sort of breathing in and out and his penis was going in further and all the time he breathed and I don't really remember much about it, except for-, I fell asleep after he came in, and when I woke up, he wasn't there anymore."[4]

[10] Concerning the third occurrence charged in Count 3, she said that her father "breathed in and out, his penis went in and out".[5]

[11] Despite the complainant's evidence that she shared her bed with her younger sister when these events occurred, her sister's evidence was that she was unaware of it.  The complainant did not say that her sister witnessed these events.

[12] It will be seen from the above that the case for the prosecution depended upon the reliability of the complainant's evidence.

[13] The accused did not give evidence.

Grounds 1 and 2 - Appellant's Submissions

[14] Counsel for the appellant, in both his written and oral submissions, was disposed to make the same submission in support of both grounds.[6]  He did not submit that, as can occur where credibility is critical and the complaints are largely uncorroborated, the acquittal on Count 1 was inconsistent with the convictions on Counts 2 and 3, thus demonstrating from that stark inconsistency that the convictions are unsafe and unsatisfactory as was held by the High Court in Jones v The Queen.[7]  This was for good reason, for here there is an apparently straight forward explanation for the jury acquittal on Count 1.[8]  In her Record of Interview with the investigating police officers, the complainant said that the first dealing was after March or in April 2007 and that on that occasion she was sleeping in a white bunk bed but in her pre-recorded evidence she said that it occurred at the end of 2007 in a different bed and one that was blue.[9]

[15] The attack on the convictions as unsafe and unsatisfactory focussed upon the inconsistent evidence of the complainant and other features of her evidence that, it was submitted, made the convictions unsafe.  Counsel relied upon the inconsistency in the account of the time and circumstances of the offence alleged in Count 1 as an instance of the unsatisfactory nature of the complainant's evidence. 

[16] Other features of the evidence were also relied upon which included:

(a)That her awareness of the events was troubling, in respect of the first incident, she said she was only "half awake the whole time" but when her father came in she fell asleep and then woke up when he left; in respect of the second incident, she described herself as being "sort of very drowsy … sort of about to fall asleep" and that she "fell asleep for a little while, and then I felt him go away".  In respect of the last incident, she told the police at her Record of Interview that she only just remembered it yesterday.[10]  The complainant acknowledged in her pre-recorded evidence that her memory seemed to improve with time.

(b)The complainant described the appellant's penis on the first occasion as being "soft and squishy".[11]  Therefore, it was submitted, it was unlikely the appellant would have been able to thrust his penis between her thighs without an erection.

(c)In the interview with the police officers, speaking of the second incident, the complainant said when she woke up there was "yellowish white sticky stuff" on her pants;[12] yet her evidence was that the appellant usually came into her around 10 o'clock and on one occasion at 12 o'clock.  Thus it was submitted, her evidence ran contrary to "ordinary human experience" viz that ejaculated semen dries quickly and would not be sticky after several  hours.  Reference was also made to evidence that the complainant told her mother that "sometimes he pees in the bed"[13] but, it was pointed out, there was no evidence that semen stains were ever observed on the complainant's pyjamas, night attire or on the sheets.

(d)On occasions when the complainant alleged these events occurred, she said her sister, L was in bed with her, yet at no time did L awaken; nor did she see or feel any of the incidents; further, the complainant confided in neither her sister, L nor her mother until the evening of 24 June 2008, after she had read a book on child development which also contained a discussion on sexual intercourse.

(e)There were inconsistencies in the complainant's account of the number of occasions of sexual activity with her by the appellant.  In her pre-recorded evidence, she said there were, in addition to the three charged incidents, three other incidents, although she said she "would not be able to remember exactly",[14] she said they occurred over a five month period at the end of 2007 and the beginning of 2008.  This evidence, it was submitted was inconsistent with other evidence of comments apparently made by the complainant.  According to Mr and Mrs F,[15] the complainant told them sexual activity occurred "50 times last year and 30 times the year before".  She told them that the appellant had stood beside her bed and masturbated and that she made a gesture of masturbation described by Mr F.  According to their evidence, she said that her brother, J, had seen this, a matter that J denied in his evidence.  The complainant said nothing of this activity in either her Record of Interview or her pre-recorded evidence. 

(f)The complainant told her mother that when the appellant came into the bedroom, he would say that "he's lonely" and pull her panties down[16] but she did not mention this in either her interview with the police or in her pre-recorded evidence.

[17] Anticipating that the Crown might submit that the inconsistent evidence of the complainant would be explained as that which one might expect from a young witness, counsel referred to the comments of Thomas JA in R v G; ex parte AG[17]:

"It might therefore be said that the inconsistencies are not greater than might naturally be expected from so young a complainant.  But therein lies the danger of a prosecution which, in the end, is based solely upon such evidence.  When that version is contradicted by other evidence of equal or greater objective probability, such inconsistencies can undermine a tenuous case.  The complainant was, of course, only eight years old at the relevant time, and nine years old when she gave evidence.  There is a natural tendency to make allowances in favour of children, but in assessing the probative value of evidence as a basis for convicting an accused person, one must be careful not to lean over too far in favour of a child complainant, thereby unbalancing a fair assessment of the evidence."

[18] Counsel submitted that in the circumstances of the inconsistent verdict, the inconsistent evidence concerning the time of the occurrence of the alleged offence in Count 1 and the inconsistencies and exaggerations or vagaries he relied upon that the convictions were unsafe and unsatisfactory following the judgments in this Court in R v P[18] and R v R[19] where this Court has followed the decision of the High Court in M v The Queen[20] where, in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ their Honours said[21]:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

…

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."

Grounds 1 and 2 - Crown Submissions

[19] The respondent submitted that the complainant presented as a frank and open witness and that the detail given possessed a "string of truth" containing "childlike" descriptions about old concepts and activities.  It was further submitted that the inconsistencies that did exist in the telling of her account were explicable on the basis of misunderstanding, lapse of time or the environment in which the descriptions were given.  Further reliance was placed upon the complainant's descriptions of the activities of the appellant, when discussing Counts 2 and 3, she mentioned the appellant's heavy breathing and his thrusting his penis between her legs.  On the occasion of Count 2, she awoke the next morning to find yellowish/white sticky stuff on her pants.  It was submitted that her knowledge of ejaculation and sexual arousal could only be explained by witnessing those acts.[22]

[20] Concerning the submissions of the absence of discovery of any ejaculate or semen stains on clothing or bedding by those doing the laundry, it was pointed out that household chores were shared between the complainant's mother and the children and for that reason it is easily explicable that something might not be noticed.  To the like effect, the criticism of the complainant's evidence that the appellant's penis was "soft and squishy" on the occasion of the circumstance of the first count can be explained, it was submitted by reason that it is not clear what part of the penis made contact with the complainant at the stage she is referring to and also that the complainant did not say that the appellant ejaculated on that occasion.  Nor did she describe heavy breathing on that occasion.

[21] With respect to the submission that the complainant's state of awareness during the acts suggested her recollection might be unreliable, the Crown pointed to the evidence that the events occurred late at night, between 10 pm and midnight, and submitted that it was not unlikely that a young girl would be drowsy at that time.[23]

[22] It was submitted that the complainant's initial accounts to her mother, brother and younger sister were essentially consistent with the version she gave to police.[24]  In the same vein it was submitted that the inconsistencies as suggested as a result of the evidence of Mr and Mrs F might be explained by the circumstances in which the discussions took place which would have been dramatic for the complainant and novel to the F's.  It is possible, it was submitted, that the complainant is referring to her brother only having observed the appellant masturbating and not herself.  In cross-examination Mr F was asked about his subsequent conversation with the complainant's brother which evidence suggested this explanation.[25]

[23] It was conceded that the complainant changed her estimate about the frequency of events but it was submitted that is a matter that is notoriously difficult for young children to calculate.[26]  Significantly, having had time to reflect upon the matter, she reduced the number at the pre-recording.  That stated reduction at the pre-recording was capable of reflecting favourably on her credibility, indicating an apprehension by her of the seriousness of the proceedings and determination by restricting herself to matters that she could recall.

[24] It was submitted that these various inconsistencies were referred to by his Honour in his summing up to the jury.  The jury enjoyed the distinct advantage of having observed all the witnesses when making their assessment as to the weight to be given to the contended variations in the complainant's evidence. 

[25] Further, it was submitted, there was evidence before the jury which it was entitled to conclude supported the complainant's evidence.  The complainant's younger sister confirmed the appellant did come into the complainant's bed at night, although she only witnessed the appellant scratching the complainant's back.  It was not suggested in cross-examination to the complainant that the appellant did not at times sleep in her bed. 

[26] More significantly, the appellant's flight from the house was capable of constituting an admission.  The F's were friends of the appellant.  There was evidence that the appellant and Mr F shared a close relationship.[27]  An innocent man could well have been expected to vehemently deny the allegations, there would be no reason to fear any violence being inflicted upon him, consequently his flight could properly be attributed to guilt and shame.

Grounds 1 and 2 - Discussion

[27] Following the authority of M v The Queen[28] this Court must consider whether "upon the whole of the evidence it is open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" bearing in mind the matters emphasised.

[28] In R v BAT[29] Keane JA (with whom McPherson JA and Douglas J agreed) said[30]:

"[27]The appellant advanced the proposition that the discrepancies and implausibilities in the complainant's evidence were such that they must cause this Court to entertain a reasonable doubt about the guilt of the appellant.  Therefore, so the argument goes, the jury acting reasonably, should also have entertained such a doubt.  The appellant relied upon the decision of the High Court in M v The Queen in this regard.  Two things may be said in relation to this argument.  First, M v The Queen was not a case in which the reasonable doubt which the majority of the High Court considered should have been entertained by the jury was based solely on discrepancies and implausibilities in the evidence of the complainant.  The complainant's evidence in that case was directly contradicted by the evidence of the accused, who was not shaken in cross-examination, and the complainant's evidence was also undermined by the evidence of a medical practitioner who examined her.

[28]Secondly, in M v The Queen, the majority recognized that the advantage enjoyed by a jury in seeing and hearing the evidence may be capable of resolving a doubt that might arise as to whether a court of criminal appeal can feel confident in holding that a verdict is not unsafe or unreasonable.  Since M v The Queen, it has been consistently held by this Court that inconsistencies and deficiencies in a complainant's evidence may reasonably be regarded as of little moment by the jury who has seen the complainant and enjoyed the advantage of observing her reactions and responses when tested with these inconsistencies and discrepancies."

(Footnotes omitted.)

[29] The complainant gave evidence which was not contradicted in the circumstances that applied in M v The Queen.  The jury had the advantage of seeing the complainant give evidence, of observing her reactions and responses when she was tested.  In his directions to the jury his Honour, the learned trial Judge, referred to the various inconsistencies.  In the circumstances the resolution of whether her evidence was capable of persuading a jury to the requisite standard was essentially a jury question.[31]  I have reviewed the evidence and conclude that it was open to the jury to be satisfied beyond reasonable doubt of the evidence given by the complainant discussed above.  When her evidence together with the circumstance of the appellant's flight after he was denounced by his daughter is considered, Iconclude that it plainly was open to the jury to be satisfied by reasonable doubt of the appellant’s guilt.

Ground Five

[30] At the hearing, counsel for the appellant pointed to some questions and answers contained in the complainant's interview with the police admitted under section 93A of the Evidence Act 1977. 

[31] The police interview, after a series of questions and answers concerning the circumstances of the complainant's complaint to her mother, asked the complainant what she thought "of this whole thing" to which she responded, "it's scary".  This was followed by a question from the police officer:

"[H]ow would you feel if Dad did go away for a little while?"

To which she replied:

"I guess I would feel a bit safer."

The complainant went on by way of an afterthought or elaboration:

"[‘C]os he was always really angry when he came home."

[32] This passage of questions and answers was irrelevant and potentially prejudicial to the appellant.  No objection was taken to it at trial.  If objection had been made, no doubt it would have been excluded though coming at the end of the interview.[32]

[33] In order to address this ground, several matters should be pointed to.  The prosecution did not present as part of its case that the complainant lived in fear of her father because of his sexual misconduct.  There was no suggestion of coercion or force or intimidation.  While this serves to highlight the irrelevance of the questioning, the potential for prejudice to a fair trial is reduced when this is recognised.  Moreover, after making the comment about her father's anger when he came home, the complainant went on to put it into context of the appellant being angry if dinner was not ready or if the children were being lazy.  So the potential prejudice of the comment about "safety" can be seen in a more benign light than if considered out of context.  Further, at the pre-recorded evidence the complainant's counsel (not counsel on the appeal) explored the issue of the appellant's anger and his discipline of the children in cross-examination of the complainant.  It is possible to explain the failure to object upon a forensic decision to explore a possible motive for the complainant's accusation against her father.  That nothing may have come of that tactic can be seen from the complainant's answer when this issue was explored by counsel at trial.

[34] The failure to object meant that the issue is whether there has been a "miscarriage of justice" rather than an "error of law".[33]  When seen in the context of the trial and the use made of some of this evidence by trial counsel, together with the evident care taken by the jury in the deliberation upon the evidence, it cannot be said that there was a "miscarriage of justice".

Application for Leave to Appeal Against Sentence

[35] A sentence of three years' imprisonment on each of the two counts was imposed.  The learned sentencing judge set an eligibility for parole date after serving eighteen months.  In his sentencing remarks he noted that the appellant had shown no remorse, that the convictions had followed a four day trial which involved lengthy cross-examination which he criticised as "vexatious".  His Honour noted that the Victim Impact Statement indicated the effect of the trial had had a significant impact upon the complainant.

[36] At the time of sentencing the appellant was 40 years of age, he was 37 years of age when he committed the offences.

[37] At the hearing of the appeal, the learned counsel for the appellant was content to rely upon his written outline of argument.  Counsel contended that the appellant should not have been punished more severely because of the conduct of the trial by trial counsel.  He submitted that "while the conduct was reprehensible and a major breach of trust," there was no breach of the integrity of the complainant's body nor was there any violence nor use of threats with the consequence that the conduct was at the lower end of the range of offending.

[38] Counsel submitted that the appropriate range was in the vicinity of eighteen months to two years' imprisonment and that a sentence of two years' imprisonment might have properly been imposed.[34]

[39] Counsel for the respondent submitted that the appellant's abuse of trust had a devastating impact upon the complainant and her family, with the consequence that she had undergone counselling and psychological treatment and had required medication.  He referred to the Victim Impact Statement and the effects the appellant's conduct had had upon the family. 

[40] In argument he referred to R v UA[35] which was an appeal against conviction and sentence by an appellant who was convicted of similar offences to the matters the subject of this appeal in respect of his daughter who was seven years old at the time of offending, in which a sentence of two and a half years' imprisonment was imposed.  Giving the reasons of this Court Keane JA[36] observed[37]:

"The breach of trust involved in his offending conduct was egregious … The sentence which was imposed was, in my respectful opinion, distinctly moderate, bearing in mind that it was imposed after a trial and in circumstances where the appellant's lack of remorse was evident."

[41] I am not persuaded that the authorities relied upon by the appellant indicate that the sentence imposed was manifestly excessive.[38]  In the circumstances of the appellant's disgraceful conduct involving his daughter, and his evident lack of remorse, it cannot be said that the sentence imposed was manifestly excessive.

[42] I would refuse the application.

Orders

[43] The orders I would make are:

1.The appeal against conviction be dismissed.

2.The application to appeal against sentence is refused.