R v Schell[2013] QCA 113

SUPREME COURT OF QUEENSLAND

1. WHITE JA: The appellant was convicted on 29 October 2012 after a short trial of one count of indecent treatment of a child under the age of 12 years.  The ground of appeal in the Notice of Appeal is that the verdict is “unsafe and unsatisfactory having regard to the whole of the evidence”^[1]; that is, it was “unreasonable, or can not be supported having regard to the evidence”.^[2]  A further ground of appeal was added by leave at the hearing:

“The learned trial judge failed to direct the jury in accordance with Zoneff v. The Queen (2000) 200 CLR 234 regarding the inconsistencies in the account given by the Appellant in his police interview.  This lack of direction left open the possibility that the jury used the alleged inconsistencies as evidence of a consciousness of guilt.”^[3]

2. An application to appeal against sentence was abandoned.

Circumstances of offending

3. The complainant was born in May 2000.  She was aged 11 years in October 2011.  She and her mother, older brother and two younger sisters were then living in the house of her mother’s sister (“Aunt”) in a suburb of Cairns.  Also living in the house were the Aunt, the Aunt’s six young children, her partner and her partner’s brother, the appellant.  The appellant had been living at that address since July 2011.  At the time of the offending he was helping the family with some domestic painting and to pack up preparatory to relocating.  According to the Aunt the appellant slept “At the back in the backyard in the shed”^[4], which was detached from the house.  He came into the house to use the kitchen, bathroom and toilet facilities.

4. The appellant’s male cousin also slept at the house the night before the offending conduct. The appellant was seen to have been drinking, and was described as drunk, the evening before the offence was allegedly committed. He said he was hungover in the morning.

5. The children of the house watched television in the garage, which was attached to the house at the front and open to the street. It was set up with lounges for that purpose.

6. On the morning of 27 October 2011, at about 11.00 am, the complainant was asleep on one of the lounges in the garage.  She awoke when she felt the appellant’s fingers touching her vagina.  That touching lasted about five seconds.  She said to the appellant “I’m telling on you” and went to find her Aunt.^[5]

7. The Aunt’s evidence was that her niece was “crying really hard”^[6] and initially could not get her words out.  When she could, she said “[the appellant’s] being disgusting”.^[7]  The Aunt asked what she meant and the child went through the action of putting her hand down inside the front of her shorts (and underpants) “towards her private”.^[8]  The Aunt told her to wait inside and confronted the appellant with the question: “What did you do to [the complainant]?”^[9]  He responded that he did nothing.

8. The Aunt returned to the house and rang the complainant’s mother who returned about 15 minutes later along with her uncle.  She confronted the appellant aggressively and attempted to hit him with a fence post.  He denied he had done anything.  Police were telephoned and attended at the house.  Subsequently the mother, the Aunt and complainant went to the police station where the complainant was interviewed.

9. The complainant’s nine year old cousin said that she had seen the complainant asleep on a lounge in the garage in the morning with the appellant sitting at a table near her.  No one else was then there; some of her siblings and cousins had been earlier, but had gone inside.  She saw the complainant come inside very distressed and heard her say that “[the appellant] was … being gross …”^[10]

10. The Aunt said that she had gone out to the garage a short time prior to the alleged assault and saw the complainant asleep on a couch. She saw no one else in the garage. She returned to her bedroom.

11. The appellant was interviewed by police that day. His interview was played to the jury. There were inconsistencies in his account which were queried by police in the course of that interview. The appellant denied touching the complainant on her “private parts”. He said he woke her up by touching her on the shoulder. He was wanting a particular DVD.

12. There was no implicating DNA on the complainant’s clothing.

13. The appellant neither gave nor called evidence.

Ground 1

14. No separate argument was addressed in respect of this original ground of appeal. The evidence was quite short and consisted of the complainant’s interview and
    pre-recorded evidence, the cousin’s interview with police, the Aunt’s evidence and that of the mother, and the interview with the appellant.  The jury asked to hear, and did hear, the evidence of the complainant and of the appellant again after they had retired to consider their verdict.

15. If they were persuaded to the requisite standard that the complainant was a reliable witness, and accepted the largely unchallenged evidence of the Aunt and the mother, then they were entitled to convict.^[11]  The evidence is more fully discussed when consideration is given to the additional ground upon which the appellant relies.

Additional ground – failure to give a Zoneff-type direction

16. Nowhere was it put to the appellant that he had lied when he said he had done nothing to the complainant. Nor did the prosecutor say to the jury that he had lied. However, the appellant contends that by focusing at some length on the inconsistencies in his interview with police, the prosecutor was inviting the jury, by implication, to conclude that he was lying about his conduct towards the complainant. In that circumstance, a direction of the kind recommended by the High Court in Zoneff was required to avoid impermissible reasoning to guilt by the jury about the appellant’s alleged lies. 

Zoneff v The Queen

17. The issue in Zoneff was whether or not an Edwards^[12] direction was called for.  In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said that, generally, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt.  Evidence of guilt in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth … would implicate him in … the offence”^[13], and then only if the lie in question was capable of bearing that character.^[14]

18. Their Honours then proposed the following direction where no Edwards-type direction is required but where the issue of lies has been raised:

“You have heard a lot of questions, which attribute lies to the accused.  You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately.  It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning:  do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”^[15]

19. Their Honours said that a direction in those terms might be adaptable to other cases:

“… in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.”^[16]

20. What is at the heart of a Zoneff-type instruction to the jury is whether, in the particular case, there is a risk that impermissible reasoning to guilt will occur if an accused is perceived to have lied, and, thus, a fair trial may not have been had.  It is important, when considering a complaint of this kind on appeal, to have regard to how the trial was conducted, the central issues identified for the jury in addresses and the requests by counsel to the judge about matters for inclusion in the summing up (or any redirections).^[17]

Prosecutor’s address

21. The appellant contends that the approach of the prosecutor in emphasising the inconsistencies and, by clear implication the lack of veracity in the appellant’s account, was calculated to put those inconsistencies at the forefront of their deliberations. It is necessary, then, to consider at some length the prosecutor’s address and to see whether that emphasis might lead to impermissible reasoning as to guilt.

22. The prosecutor gave the jury an outline of what he proposed to address, starting with the evidence of the complainant, which he told them was the focus of the trial. He said that he would then consider how her evidence fitted with the other evidence of what was going on in the house that morning. And, finally, would conclude with the appellant’s interview, demonstrating “that it was a wildly inconsistent interview and an interview that cannot be relied upon”.^[18]  In keeping with that approach, he said that a jury could convict the appellant if they considered the complainant’s evidence to be truthful, reliable and credible.  He noted, as was the case, that there was no challenge to the truthfulness of her evidence, but her reliability was in question.

23. The defence “case”, put to the complainant during cross-examination, was that she had been dreaming, that the appellant woke her up by shaking her shoulder, and that she got a fright and jumped up from the couch.

24. The prosecutor emphasised that the complainant was young and naïve in as much as she did not know the anatomical name for her vagina and had used finger actions to demonstrate to her Aunt what she said the appellant had done to her. He noted that on her evidence it was not a fleeting touch; the appellant’s hand had remained there for five seconds.  He pointed out that she consistently described the conduct to her Aunt as “disgusting” and to her cousin as “gross”.  The prosecutor said:

“Now, that type of conscious certainty, ladies and gentlemen, I’d suggest to you, is a child who is telling us exactly what happened to her.  She is not thinking it may have happened.  She knows it did; and she felt it for five seconds after she awoke.”^[19]

25. He referred to what was said to be an inconsistency between her evidence, that the hand had remained on her person for five seconds, and her response in cross-examination, that she agreed that she had jumped up straight away after she was woken. This was said to be no true inconsistency.  He emphasised that since there was no attack on the complainant’s honesty or truthfulness, had she been woken up by being touched on her shoulder she would have agreed, but did not.^[20]

26. The prosecutor then dealt with issues of preliminary complaint and explained that they would assist in determining whether the complainant was a credible witness. He emphasised that the graphic description of what had been done to her “was certainly not a dream”.^[21]

27. The prosecutor dealt with the issue of opportunity, in light of the number of people who were in the house, by raising the evidence of the complainant’s cousin and Aunt. The cousin said: she saw the complainant asleep on the couch; that the only other person in the room was the appellant; and while there were many young children around they were all asleep inside the home when the complainant came to her Aunt crying.

28. This led the prosecutor to the appellant’s interview where the appellant named a number of the young children who he said were present in the garage watching television when he went in to get a particular DVD.^[22]  Later in his interview he named more children.^[23]

29. An aspect of the evidence concerned the way in which the complainant was sleeping. Her cousin said she was on one side with a hand around her head and one hand off the bed. The Aunt had said that she was sleeping on her back as did the complainant herself. However, the appellant said that the complainant was curled up on her side with her knees up and her hand between her knees (which would have made the assault described difficult), a position which the complainant denied.

30. The prosecutor reminded the jury of the Aunt’s and the mother’s evidence that when confronted the appellant had said “I did nothing”. Yet he had told police that he had tapped the complainant on the shoulder and asked her for a DVD.

31. The prosecutor dealt with the DNA evidence and submitted that it was neutral.

32. Before turning to a more detailed analysis of the alleged request for the DVD the prosecutor said:

“Now, the cornerstone, ladies and gentlemen, of [our] justice system is that an accused does not have to come up with an explanation.  He does not have to give evidence within this Court.  It is for the Crown to prove, through their own witnesses, guilt beyond a reasonable doubt.  I simply want to establish for you that this particular interview was riddled with inconsistencies and you can simply set it to the side and you can examine the evidence of [the complainant]; [the Aunt]; [the complainant’s mother] …; and [the cousin].”^[24]

33. The following two pages of transcript are taken up with the prosecutor identifying the appellant’s varying explanations as to why he was in the garage attempting to wake the complainant to get a DVD.

• To the complainant’s mother while she was attempting to hit him, “Nah, I was going to ask her for a – for a DVD to watch”.^[25]

• He was going to the garage to get the DVDs from the TV where they are kept.^[26]

• He went in to wake up the complainant for “her mum to get a DVD for me”.^[27]

• When asked why he woke the complainant to get the DVDs if they were in the garage he responded, “No, her mum’s got it in the room”.^[28]

• When asked why he didn’t ask one of the other children to get him the DVD, he said the complainant was the only one there and the others were too small.^[29]

• When asked why he was waking the complainant so that she could ask her mother for a DVD when he knew that she had left the house, the appellant said that it was not the complainant’s mother but the complainant’s mother’s sister (the Aunt) who had the DVD.^[30]

• When asked why he did not then go into the house and ask the Aunt for the DVD, he said that he did not go into the house as a general rule.^[31]

• Police said that he had just told them that he had had a shower so he must have gone inside the house, to which the appellant responded that he swam outside from the house and only went inside when the Aunt and the mother were there.^[32]

The prosecutor commented, “So, you can see as he goes through his interview he’s simply making it up as he goes along” and “that was his last ditch attempt at that particular point.”^[33]  Adding, “So, again, he doesn’t really know what he’s saying to the police in a – well, certainly not in a consistent manner.”^[34]

34. The prosecutor reminded the jury that police had asked the appellant whether he had approached any other slightly older children to get him a DVD, in reply to which he said he had asked the cousin. Then the prosecutor referenced the cousin’s evidence that the appellant had never asked her for a DVD.

35. The prosecutor concluded:

“So, really, and to be fair, ladies and gentlemen, inconsistencies are a part of life, certainly in criminal trials and inconsistencies don’t mean an untruth, and that’s particularly so for matters that are less significant, but this goes to the heart of what he’s trying to say, why he was in the room and why he was touching [the complainant] and I’d suggest that you would find the particular conversation that he had with police unreliable and simply set it to the side.”^[35]

The prosecutor continued:

“So, there are seven or eight gradual differing versions in the one interview as to why he woke her up.  He said that the child had her hands between her legs, which is not the truth when considering the evidence – the whole of the evidence of the witnesses and that people were in the room and that, again, that is completely at odds with remaining witnesses.”^[36]

36. These final passages necessarily imply that the appellant’s account is unbelievable, fundamentally, because there are so many different explanations as to why he was touching a sleeping child at all. But the question is whether they were such as to require a warning about impermissible reasoning.

Defence’s address

37. In order to put the prosecutor’s address into context the defence address needs to be noted. Defence counsel focused on whether the complainant’s account was reliable and that the jury could not be satisfied beyond reasonable doubt that it was.^[37]  He said that the complainant’s honesty was not in issue, but that sometimes an honest witness could be mistaken.  He put the appellant’s explanation that the child got a fright when he woke her from her sleep and perceived that, or thought that, the appellant had done something to her when “in fact all he did was touch her on the shoulder”.^[38]  He did not seek to level any complaint against the Aunt or the mother for their response.  Counsel contended that the complainant responded to a leading question from her mother at the police station, because there was no time for her to reflect amongst the commotion and by then the “[die] had already been cast”.

38. Defence counsel then addressed the “so called inconsistencies” in the appellant’s version of events when he spoke to police. First, he noted that the appellant did not have to give an interview. Second, he asked the jury to bear in mind that the appellant was a Torres Strait islander man with minimal formal education. Accordingly, he appeared confused by the questioning and, at other times, he and the police seemed to be at talking cross purposes Third, there was some evidence to suggest that a particular video was in demand.  Counsel pointed out that despite the forceful questioning by police he was adamant about important matters. 

39. Counsel drew attention to the inconsistency in the complainant’s evidence as to how she woke and the absence of implicating forensic evidence. He referred to the bizarre nature of the appellant’s alleged conduct, in the context of an open garage facing the street in a house full of people, and in that he had made no effort to flee the scene. Lastly, defence counsel discussed the presumption of innocence, the onus of proof, and the requirement of proof beyond reasonable doubt.

Primary judge’s summing up

40. Apart from the contention that the primary judge ought to have given a direction similar to that proposed in Zoneff, there is no criticism of the summing up.  His Honour gave the usual general direction that witnesses may be honest but have a poor memory or otherwise be mistaken.  He continued:

“… and that is where the defence are coming from in this case, and the whole focus, as you heard from both counsel, will be on that issue of the reliability of the evidence of the complainant …”^[39]

While his Honour told the jury that they could have regard to the record of interview he warned them that the appellant was entitled to insist that the prosecution prove the case against him if it could.  He reiterated that it was the prosecution who bore the onus of proving guilt and no gap in that case could be filled by the failure of the appellant to give evidence.

41. Later in his directions when dealing with the issue of unlawfulness the primary judge said:

“No issue like that has arisen in this case.  But, again, there is nothing exceptional about that because of the way the case has been conducted.  In other words, the defence case is:  No, it didn’t happen.  The prosecution case is:  It did.”^[40]

The judge told the jury that, “as both counsel have quite properly put to you”, the case really came down to the reliability of the complainant’s evidence.  He said:

“Do you accept her evidence as credible and reliable with the focus on the way the case has been conducted for reasons I’ll touch on when I deal with their arguments?  Are you satisfied beyond reasonable doubt her evidence was reliable?”^[41]

42. His Honour explained preliminary complaint and how it could relate to the complainant’s credibility.  Having made some further remarks about the complainant’s evidence and inconsistencies, his Honour reminded the jury “where everyone is coming from”:

“… because the defence have not attacked her credibility, they have not attacked her honesty.  They have however raised issues in relation to reliability …”^[42]

43. The primary judge summarised carefully the cases for the prosecution and the defence, including the inconsistencies identified by the prosecutor. When he summarised the defence case he emphasised that the essential question in the trial was whether the complainant’s evidence was reliable and, at some length, reminded the jury of defence counsel’s response to the allegations about the appellant’s inconsistencies.

44. There was no application for a redirection.

Discussion

45. Was there a risk of a misunderstanding about the significance of possible lies, even though the prosecution had not overtly suggested that the appellant had lied because the truth would implicate him in the offence? There was, in my view, simply no basis for concluding that there was a risk of that kind.

46. This was because of the way the prosecution and defence cases were conducted – focusing firmly on the complainant’s reliability – and the nature of the evidence the prosecutor and defence counsel had to work with. It was essential to the prosecution’s case that the complainant’s evidence stood up to scrutiny. Accordingly, any direction about lies, of the kind suggested in Zoneff, would have been apt to distract the jury from the focus of the defence case that the complainant was an honest little girl, but was mistaken about what had occurred when she was roused from sleep by the appellant.  Even if it was appropriate to give a lies direction, it was a forensic decision, quite understandable in the circumstances, for the defence not to have sought it.  To discuss lies in light of the, at best, very muddled account of what the appellant was doing in the garage that morning would have drawn attention quite starkly to something that was the focus neither of the defence nor the prosecution case.

47. Not every suggestion by the prosecutor to the jury to reject an exculpatory statement by the accused, especially one made out of court, requires such a warning. It is otherwise difficult to see any occasion when a warning should not be given.

Decision

48. There was no error in not giving the jury a direction about lies consistently with that recommended in Zoneff to guard against impermissible reasoning.

Order

49. I would dismiss the appeal.

50. GOTTERSON JA: Iagree with the order proposed by White JA and with the reasons given by her Honour.

51. ATKINSON J: I agree with the reasons of White JA and the order she proposes.