R v VI[2013] QCA 218

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  On 10 September 2012, the appellant pleaded not guilty in the Brisbane District Court to indecent treatment of a child under 16 (count 1) and rape (count 2).  After a four day trial, the jury convicted the appellant of count 1.  They also found him not guilty of rape (count 2) but guilty of the alternative charge to count 2 of indecent treatment of a child under 16.[1]  He was sentenced to 12 months imprisonment, suspended after serving six months for an operational period of two years.  He has appealed against his conviction and applied for leave to adduce further evidence.  The further evidence he seeks to lead in this appeal came to the attention of his counsel late in the trial, after the jury had retired to consider their verdicts.  In January 2013 he was granted bail pending appeal.

[2] There are two grounds of appeal.  The first is:

"There has been a miscarriage of justice occasioned by the failure of trial counsel for the appellant to seek instructions from the appellant on information the Crown witness, [LT], was capable of giving evidence which could exculpate the appellant and by trial counsel's failure to apply for a mis-trial upon being informed, before the delivery of verdicts, that the witness, [LT], may have been capable of giving evidence exculpating the appellant".

The second is:

"There has been a miscarriage of justice because the fresh evidence of the witnesses [KT] and [LT] suggests that there is a significantly [sic] possibility that, had that evidence been presented at trial, the appellant would have been acquitted".[2]

[3] Before directly discussing these issues, it is helpful to refer to aspects of the evidence and to events which occurred towards the end of the trial.

The relevant evidence and events at trial

The complainant's evidence

[4] The complainant gave evidence under s 93A Evidence Act 1977 (Qld) by way of two statements to New Zealand police on 12 July 2011 and 9 August 2012, when she was aged 12 and 13.  She also gave pre-recorded evidence at trial under s 21A Evidence Act when she was 13 years old.

[5] In the first police interview, she said that in the school holidays in January 2011, when she was 12 years old, she was staying with her aunt, KT, and her uncle, EW, in the Brisbane house of KT's parents.  KT's sister, LT, was also staying there with her five children, aged 14, 12, 10, six and four.  The complainant's mother and brothers had left Australia to return to their home in New Zealand.

[6] One evening, her uncle was preparing to go to his poker night and the complainant was playing video games with her cousins.  She became angry and took a thin mattress into another lounge room and watched TV.  After about 10 pm she fell asleep.  She woke up to see her uncle and his friend (it is uncontentious that this was the appellant) sitting on chairs in the lounge room drinking beer and watching TV.  Her uncle was drunk but she did not know if the appellant was drunk.  She went back to sleep.  When she next woke, it was "really dark".[3]  She was lying on her side and the appellant was lying behind her, facing the same direction.  She could feel his chest against her back.  His arms were around her and he was "feeling" her.[4]  His hands were down her pants.  He was "touching… [her] private parts"[5] for a few seconds.  "[H]is finger was…going up through [her] private area" and "inside" her vagina[6] in a manner she had heard her friend describe as "fingering".[7]  She felt sore, "gross" and "yuck" because she did not like being touched in that area.[8]  He then slid his hand up and squeezed her breasts "really hard."[9]  She was not sure whether she was thinking it or actually hearing it, but she was pretty sure he kept whispering to her, calling her "girl", and then he said "do you know what I'm gonna do to you"?[10] She pretended to be asleep.  She moved around a little bit and the appellant walked away.  When she heard him at the kitchen fridge she walked quickly and quietly upstairs.  She did not think she would tell her aunt straight away because she was embarrassed.  She tried to go into the room where LT and LT's daughters were sleeping.  KT saw her and asked what she was doing.  She cried and told KT what happened.  LT came out of her room and also asked what happened.  KT told LT and all three went into another room to talk.  KT and LT comforted her and used her uncle's laptop to distract her.  Her uncle was drunk and when KT attempted to wake him he fell off the bed with a huge thump.  KT and LT then went downstairs.  The complainant took the laptop into her cousins' room because she did not want to be alone.  She fell asleep and did not see the appellant again.

[7] The next morning, KT told the complainant's uncle what had happened.  KT was making pancakes and the cousins were preparing to go to the movies.  KT asked the complainant which of them would tell the complainant's mother.  The complainant said that she did not want to tell her mother as she did not want family conflict over her uncle's failure to protect her and she was embarrassed.  The complainant did not tell her cousins.  She kept busy to "get [her] mind off it."[11]

[8] In her second police interview, she said that she first told KT and then "at the same time" told LT.  KT and LT then told her uncle.[12]  After she returned to live with her mother in New Zealand, she told her best friend, TD.  TD, with the complainant's permission, told the complainant's other close friend, BS.  The complainant next told her teacher, DL, either in person or over the internet.  DL told the Deputy Principal who contacted the police and the complainant's mother was informed.

[9] When the complainant was talking to KT and LT, she was crying and felt dirty; she wanted to have a shower but did not want to wake her cousins.  Even after she watched a movie on the laptop she "just kept crying for ages."[13]  She finally fell asleep "once all the tears were gone."[14]  When she went downstairs the next morning, as soon as her uncle saw her he picked her up and hugged her.  They were both crying.  He said that he would "never let it happen to [her] again".[15]  When her cousins asked her what was happening, she told them to leave because she did not want to tell them.  She did not speak to her uncle about what happened because he was a male and she was embarrassed.

[10] On her return to New Zealand, she did not tell anyone for "ages".[16]  She told TD in the second term of school, under the shelter area at their high school.  She was too embarrassed to actually talk about it, so she wrote a note, showed it to TD, and then destroyed it.  She was on the brink of crying.  TD asked her if she wanted TD to tell anyone.  At first the complainant declined because she did not want anyone else to know.  TD asked if she should tell BS who came over and hugged the complainant.  It is unclear whether the complainant was saying that it was on that occasion or a different occasion that TD told BS.  The complainant did not tell BS about it, but she told her about a dream she had at BS's house.  She did not give any further explanation about the dream.

[11] She thought she probably told her teacher, DL, a few weeks later.  They were in a classroom at break time with TD and BS who were supporting her.  She was crying because although she did not want to tell an adult, she knew she had to "[b]ecause of the … dreams and that."[17]  After the complainant told DL, she also told her cultural teacher, NH, and the Deputy Principal.  Either the school or the police informed her mother.  The complainant did not speak to her mother about it as she "can't really speak…to her about those things."[18]

[12] The complainant's further evidence, cross-examination and re-examination were pre-recorded on 31 August 2012 and were to the following effect.  She told KT and LT "that there was a man downstairs and he had been touching [her]".[19]  KT and LT took the complainant into another room and about five minutes later they went downstairs.

[13] She could not remember exactly what she wrote to TD about what happened, but it included that:

"[she] was at her uncle's house in Brisbane and [she] had been sleeping in a different room to [her] cousins, and at a late time of…night…[she] woke up and saw [her] uncle with [the appellant] and they were drinking, and then [she]…went back to sleep, and then… [she] woke up and [she] could feel someone's hand down [her] private area and in [her] chest area as well."[20]

She did not keep the note.

[14] Some time later, when both TD and BS were present, she spoke to her teacher, DL, about it.  She did not say much; TD and BS gave DL the details.  She just said that she could "feel someone touching [her] and [she] was in Aussie".[21]  She told NH, her cultural teacher, and the Deputy Principal basically what she had told TD.

[15] When cross-examined, she agreed that she did not know the person who touched her and she did not see his face.  The room was very dark; she had her back to this person and she did not know what he was wearing.  She remembered clearly his hairy arms, but she could not otherwise describe him.  She accepted that she had assumed that the person who touched her was her uncle's friend whom she had earlier seen drinking with her uncle.  She was not sure if she heard this person whisper "girl" and seemed to concede that this may have just been in her mind.  Her pants were not ripped off and she would not have told anyone that they were.  She did not fall onto the ground and she would not have told anyone that she did.

[16] She had heard the word "rape" before this incident occurred because one of her friends had been raped.  She did not know if the man's use of his finger on her was rape.  She denied telling her friends she was raped.  She would not have used the word "rape" to describe "fingering".[22]  She told KT and LT that she was "fingered", not raped.[23]

[17] She understood the difference between trying to do something and actually doing it.  The offender actually put his hand down her pants; this was different from trying to do this.  She denied she told KT and LT that the person was "trying" to put his hand down her pants.[24]  She could not stop the offender from putting his hand down her pants.  She did not tell anyone that she was able to stop him putting his hand down her pants.  She did not remember any conversation with KT about whether the offender "went all the way" or whether he did anything else to her.[25]

[18] She denied that there was a big party at the house on the night of the offences and did not tell anyone there was.  She and her cousins were "hanging out" in one room while her uncle was at poker.[26]  Her two male cousins aged 14 and 12 were downstairs in another room when she went to sleep.

[19] When she returned to New Zealand, she did not tell anyone about what happened until she told TD in second term.  Apart from when she was with TD, BS and her teacher, DL, she did not think she told BS anything about it.  She certainly did not speak to BS many times or in detail about what happened.  She agreed that she spoke to BS at BS's house about a dream she had in New Zealand which was similar to the alleged offending.  She dreamed that she was standing at the bottom of the stairs of her New Zealand home.  She was in her mother's body and was looking up at her own body standing at the top of the stairs.  There was a person standing behind her mother's body at the bottom of the stairs, touching her.  His hand was "around [her] down her pants."[27]  She could not see the person's face.  She was yelling "[h]elp" to her body at the top of the stairs, but her body was just staring at her.[28]  She did not know whether the person behind her was standing or sitting but the person was touching her, the same way that the person touched her in Australia.  She accepted that, other than the manner of touching, the dream was quite different to what had happened in Australia.

Preliminary complaint evidence

[20] KT gave evidence that in January 2011 she was living in Brisbane with her partner, EW, and their three children.  KT's sister, LT, and LT's five children, and the complainant were also staying there.  The appellant had been friendly with EW for about four years.

[21] One night, EW went out and KT and LT stayed home with the children.  When KT went to sleep, the children were playing videogames.  EW woke her up to let him in early the next morning as the sun was starting to rise.  Everyone else in the household was still asleep.  The complainant was on a mattress in the downstairs lounge.  After letting the intoxicated EW in the back door, KT went straight back to bed upstairs.  KT ignored EW as she was annoyed that he was out so late.  About 20 minutes later, KT was awoken by the sound of the complainant crying near her bed.  They had the following exchange:

KT: "Hey, why are you crying, what's wrong?"

The complainant: "There's a man downstairs."

KT: "What man?"

The complainant: "There's a man downstairs.  He was trying to touch me."

KT: "Are you sure it's not a ghost or something like that?"

The complainant: "No, there's a man downstairs."[29]

KT got out of bed, but was hesitant to go downstairs.  KT and LT met in the hallway and KT told her what had happened.  KT told the complainant to stay upstairs and she and LT went downstairs.  KT saw the appellant sitting on the couch with his head tilted back.  KT shook him and it took a few minutes to wake him.  The appellant asked: "Who are you and where am I?"[30] KT asked if he had seen a little girl, but he was still trying to wake up.  He was "really intoxicated and he smelt like alcohol really bad."[31]

[22] KT returned upstairs and took the complainant into another room and asked her what happened.  The complainant said the man tried to touch her; he tried to put his hands down her pants.  She crossed her legs to stop him.  KT asked if anything else happened.  The complainant said: "No, that was it."  KT asked if she was sure that he did nothing else and that he did not "go all the way".  The complainant responded: "No, he didn't."[32]  The complainant was crying, shaking and looked scared.  She would not look at KT or LT and did not want to sleep in the room by herself.  She slept in the bedroom with her cousins.  KT went back to sleep.  In the morning, KT and EW woke at about 8.30 or 9.00 am.  KT told EW what happened and EW went downstairs.  KT followed about 10 or 15 minutes later.  EW and the appellant were talking in the lounge room.  About five minutes later, the appellant said goodbye and left.

[23] LT gave evidence that in January 2011, she and her five children were staying in Brisbane with KT, EW and their children, her brother and his partner and the complainant.  When LT went to bed on the night of the incident, EW was at home and all the children were downstairs playing and watching TV.  At about 4.30 or 5.00 am, LT heard noises downstairs.  A few minutes later, she saw something run past her door and then heard the complainant and KT talking.  LT got up and saw KT and the complainant talking in KT's bedroom.  KT and the complainant came into the hallway.  The complainant said: "There's a man downstairs."  KT asked: "Are you sure? You're not dreaming?" LT said: "What man?" They asked if she was sure it was not her male cousins.  The complainant replied: "I know what the boys look like.  It's not the boys, it's a man."  KT and LT again asked if she was sure and the complainant replied: "He's downstairs."[33]  LT agreed to go downstairs with KT.  The complainant said that the man had touched her breasts and tried to spread her legs open.  They again asked whether she was sure there was a man and that she was not dreaming.  The complainant was crying and replied: "No, there was a man."[34]

[24] KT and LT went downstairs.  They saw a man whom LT did not recognise sitting on the couch in the lounge room.  He spoke to KT.  His speech was very slurred.  KT and LT went back upstairs and KT again asked the complainant what happened.  The complainant was "a bit shaken, still crying."[35]  She said that the man "grabbed her boobs and tried to pull her legs apart and she pretended she was asleep".[36]  They asked her how she got away and she replied: "He went off to get a drink" and that's how she got upstairs.[37]  KT and LT kept asking if she was sure.  KT and LT then returned to their beds.  LT thought the complainant then probably slept in LT's bed.  LT and the complainant did not discuss the incident further.

[25] During cross-examination, LT accepted that when she and KT went downstairs the man was clearly asleep and it took KT a couple of minutes to raise him.  He appeared disoriented and did not seem to recognise KT.  LT accepted that the sound she had heard earlier that morning could have been no more than someone moving on the leather couch.  When KT first asked the complainant what happened, the complainant said she woke up because she felt someone touching her and trying to put his hands down her pants.  When KT asked the complainant how she stopped him, the complainant replied that she crossed her legs, jumped up and ran upstairs.  KT asked the complainant whether the man went all the way, and the complainant said no.  KT again asked the complainant whether she was sure.  KT sought to reassure the complainant.  LT had no other detailed conversations with the complainant about what happened.

[26] TD gave evidence under s 93A Evidence Act by way of a statement to New Zealand police in August 2012 and pre-recorded evidence at trial under s 21A Evidence Act when she was 13 years old.  In her police interview, TD said that one day in second term in 2011, at about 1.00 pm during lunchtime, TD was in the school library and the complainant was crying outside.  TD sat down next to her and asked what happened.  The complainant said that she would write it down.  TD went inside the library and left the complainant with TD's cousin, F.  TD did not see the complainant write the note.  F and another friend, M, ran into the library and handed her a note from the complainant in a code they often used, "Pig Latin".[38]  Although TD could not recall the exact words, she knew that it said that when the complainant was at her uncle's house in Australia, the complainant was "raped" by her uncle's friend at night-time.  TD then went outside, sat down and asked the complainant if she was ok.  TD could not see her face because she had her head down, her hair was over her face and she was crying.  She looked "really sad and angry".[39]  She was unsure whether they spoke at that time because the complainant did not want to talk.  She thought she threw the note in the bin.  Months later when TD was at the complainant's house, she thought that the complainant may have said that she had told her mother about it or that her mother knew about it.

[27] In cross-examination she said that the complainant was her best friend and they really only had one discussion about the incident in the second term of 2011.  She agreed that she told the police that the complainant told her that the "guy came into her bedroom…and raped her."[40]

[28] BS gave evidence under s 93A Evidence Act by way of a statement to New Zealand police in August 2012 and pre-recorded evidence under s 21A Evidence Act when she was 14 years old.  In her police interview, BS said that at the beginning of 2011, a few weeks after the complainant returned from Australia, she, BS and TD were sitting in the hallway outside a class room.  The complainant said she needed to tell BS something but she was having difficulty and was nervous and crying.  BS could not recall the words she used but she told her that when she went to Australia in 2011 she was raped.  BS hugged her.  The complainant initially told only her and another friend, but then the complainant decided she wanted to tell a teacher, who in turn involved the police.

[29] The complainant and BS spoke about the incident "a lot of times" in 2011.[41]  On one occasion after their initial discussion at school, the complainant was sitting with BS in BS' bedroom.  BS couldn't remember the exact words the complainant used, but she told her that she

"was in a room by herself and while her… uncles and friends were…drinking…in some other room or somewhere else…one of the friends came into her room, the one that she was sleeping in…[a]nd started doing things to her…[S]he said that he did like stick something up her but she's not sure what it…[w]as."[42]

They also talked about it when the complainant and BS were walking around the school grounds on their own.  Every time they talked about the incident, the complainant was awkward; it was "kind of obvious" that she did not want to talk about it.[43]  BS kept bringing it up to "get to… the bottom of things" and to "hear [her] out just so [she] knows that someone's here to… listen to what she's got to say."[44]  It got easier to talk about, "going over the whole thing…[a] million times."[45]

[30] In cross-examination BS confirmed that she has been good friends with the complainant for a while and that the complainant had spoken to her about the incident quite a few times.  She accepted that although she told police the first conversation they had about it was at the beginning of 2011, it was possible it was in the second term of 2011.  She confirmed that the complainant said she was raped.  She agreed that when she and the complainant were at BS's house, the complainant told her more about the incident, including that the complainant was in a room by herself, that her uncle and his friends were drinking somewhere else in the house, that one of her uncle's friends came into the room in which she was sleeping and started doing things to her and that he "stuck something up her" but she did not know what it was.[46]  BS denied that the complainant told her that these things occurred in a dream; the complainant did not mention a dream.

[31] The complainant's mother gave evidence at trial.  The first information she received about the incident was when Child Youth and Family Services contacted her.  On several occasions after that, but before the complainant spoke to the police, she spoke to the complainant about it.  At first the complainant told her vaguely what happened.  Only after a few conversations did she give more detail.  She said that there had been a party at her uncle's house in Australia.  All the children were upstairs, everyone had gone out and the house was "shut down".[47]  The children were all sleeping in the same room upstairs but were making a lot of noise.  She decided to go downstairs to the lounge to get some sleep.  She was awoken by someone touching her breasts and putting their hands down her pants.  The complainant just froze, closed her eyes and was crying.  She did not say how long it took or exactly what happened.  As soon as the incident finished, the complainant went upstairs and told KT.

[32] During cross-examination, the mother confirmed that the complainant said that the person had touched her, not that he tried to touch her.  The mother did not ask whether she was able to stop the touching.  She accepted that the complainant did not say that she was able to stop the touching by crossing her legs or by jumping up and running away.  The complainant did not say that she had been raped.

[33] NH, a cultural teacher at the complainant's high school in New Zealand gave evidence.  She taught the complainant for two years.  In the second term of 2011, two of the complainant's friends brought her to see NH.  The friends were encouraging her to tell NH something.  NH asked her if she was ok.  The complainant divulged that she had been raped while she was in Australia.  She confirmed that the complainant used the term "raped".  The two friends returned to class while the complainant stayed with NH for the day.  They did not have any further discussions that day about what happened.

[34] The following day, the complainant came to see NH in a break.  The complainant said that there had been a function at the house in Australia.  She had a slight falling out with her cousins and moved to another room with a blanket and pillow.  She said that a man entered the room, took off her pants, turned her around, raped her from behind and then left.  She was in a bit of pain, wrapped herself in a blanket and told her aunties and a male in the family the next morning.

[35] During cross-examination, NH confirmed that the complainant told her that the incident was painful; she fell to the ground and wrapped herself in a blanket.  The complainant did not say that she felt dirty and wanted a shower.  During a subsequent conversation, the complainant said that the man had turned her around before raping her.  The complainant said that the man "did it" rather than "tried" to do it.[48]  The complainant did not say that she was able to stop the touching by crossing her legs or by getting up and running away.

[36] DL gave evidence that she was the complainant's teacher in New Zealand.  On one occasion, the complainant was crying and DL asked her if she was safe at home.  She said that she could talk to her if she needed to.  The following morning, during a break, the complainant and BS came and sat with DL.  The complainant explained that about six months earlier during the Christmas holidays, she was in Australia staying with her uncle.  There was a party at the house after which she went to bed.  A guest from the party who had remained behind entered the room where the complainant was sleeping and did "stuff" to her.[49]  DL asked what the "stuff" was.  The complainant became very upset and could not speak clearly; she was crying hysterically, shaking, had her head in her hands and did not want to look at DL.  She said that he raped her.  DL asked her whether that was true and the complainant said that it was.  DL told the Deputy Principal.

Other evidence

[37] EW gave evidence at trial that the appellant had been his friend for about six years.  One night in January 2011, he met up with the appellant at the pub and they had a few beers from about 7.00 until 10.00 pm.  They were both drinking quite heavily.  They caught a cab to a night club in Fortitude Valley where they continued drinking.  They left at about 5.00 am and caught a cab back to EW's house.  KT eventually let EW inside and he went to the front door and let in the appellant.  EW told him to lie down on a couch and have a sleep.  He saw the complainant asleep on a mattress in the living area, facing the TV.  EW got a glass of water and went upstairs to talk to KT where he got a frosty reception and slept on the floor.

[38] The next thing he remembered was KT waking him at about 8.00 am saying that something had happened to the complainant.  He was a bit disoriented.  KT said that there was a man downstairs.  EW went downstairs and saw the appellant sitting on the couch where he had left him the previous night, looking highly intoxicated.  EW said: "Hey, what's going on, what did you do? … Do you know what happened?"[50] The appellant could not tell EW anything and said: "I wouldn't do that to you".[51]  EW went back upstairs and spoke to the complainant, who was upset but did not tell him what had happened.  EW then spoke to KT, who did not see anything.  EW then went back downstairs again and spoke again to the appellant about it but he "wasn't all there at that stage".[52]  EW went back to sleep.  KT then went downstairs and spoke to the appellant who left at about 9.30 am.

The defence case

[39] The appellant did not give or call evidence.

Application to adduce further evidence

[40] The appellant seeks to adduce further evidence from his trial counsel, his trial solicitor, KT, LT and EW.  The Court received this evidence at the appeal hearing initially only for the limited purpose of determining whether the application for leave to adduce further evidence should be granted.

Counsel's evidence

[41] The appellant's trial counsel gave the following evidence.  On the fourth day of the trial after the jury had retired to consider their verdicts, EW and KT approached him and his solicitor outside the courtroom.  EW said they had something to tell them.  They invited EW and KT into a nearby interview room and recorded the conversation which was tendered.  EW said that the day after the incident LT told him about her conversation with the complainant right after the incident during which she asked the complainant if it was a dream.  The complainant replied: "It could have been a dream."[53]  EW was not present for that conversation.  KT told the lawyers that, while she was present for part of the conversation, she was not sure she heard the complainant tell LT that it could have been a dream.

[42] Counsel considered the evidence was credible and relevant but that further investigations would be required before it could be acted on, including taking a statement from LT.  He determined that the information was provided too late in the trial to be of use as the prosecution and defence cases had closed.  He decided not to raise the matter with the judge or prosecutor.  He had not heard of cases where evidence emerged at such a late stage.  He did not seek advice from a senior practitioner about what to do.  He had a conference with the appellant in which he outlined the nature of the information provided by EW and KT.  He did not seek instructions as to whether to apply to discharge the jury as he did not consider applying for a mistrial.  Later that afternoon, the jury returned their verdicts.

The solicitor's evidence

[43] The appellant's trial solicitor deposed that almost immediately after the jury retired to consider their verdicts, EW and KT approached him and the appellant's counsel.  He was shocked and surprised as he had never been in such a situation.  He understood they were saying that LT had told them that when the complainant was asked if she was dreaming about the man downstairs, she said she was sure that there was a man downstairs and that she was not dreaming.  However, when questioned about whether she was dreaming about the touching, she replied that she was unsure and that she may have been dreaming.  KT was clear about what LT had told her.  Both EW and KT expressed "very real concerns that they had made a mistake" in their evidence and were asking the appellant's trial lawyers what to do.[54]  The lawyers advised EW and KT that "as the Jury had already gone into deliberations that there was nothing that [they] could do at the moment, but to wait for the verdict."[55]

[44] The solicitor did not speak to the appellant after the conversation with EW and KT.  He could not recall whether counsel spoke to him but had he done so the solicitor would have been present.  The solicitor and counsel discussed potential courses of action.  They decided they required a detailed statement from LT who was difficult to contact.  The solicitor did not think there were present grounds for raising the issue in court and the lawyers decided to wait for the verdict.  A couple of weeks later, LT approached the solicitor and provided an affidavit.

KT's evidence

[45] KT deposed that after she gave evidence for the prosecution at the appellant's trial she spoke with the appellant's sister who advised her that the appellant was on trial for rape.  That was the first time she was aware that he was charged with rape.  She asked LT if the complainant had told either of them that she had only dreamed that she had been touched.  LT said that she was "certain the complainant told [them] that she was only dreaming when she said that a man had touched her."[56]

[46] On Friday, 13 September 2012, the last day of the trial, KT told the appellant's lawyers that on the morning of the incident the complainant told her: "'There is a man downstairs.  In the early morning I could feel this man touching me'."[57]  KT went downstairs and saw the appellant sleeping on a couch.  She noted that he "did not look as though he could stand up let alone make it to the complainant's room.  It did not look as though [he] had moved from the spot where he had been left upon returning to the house following a night of drinking."[58]

[47] KT, LT and the complainant then returned upstairs and went into an empty bedroom.  KT asked the complainant what happened and she replied: "I don't know, it could have been a dream."[59]  KT did not mention the conversation about the dream when she gave evidence for the prosecution as she found the experience nerve-racking, was shocked by the whole situation and just wanted to get out of court.  She did not know when she gave evidence that the appellant was on trial for rape.  She did not tell the appellant's lawyers about the dream issue earlier as she wanted to be "one hundred per cent sure" that she remembered the incident correctly.[60]

[48] During cross-examination at the appeal hearing, she accepted that when the complainant’s mother phoned and asked her about the incident she said that it was true.  When she found out at trial that the appellant was charged with rape, she was shocked.  She understood rape to be penile penetration of the vagina and this was not what the complainant said had happened.  After giving evidence at trial, she, EW and LT discussed the rape charge and how this could not have happened.  They also discussed information from the appellant's sister that the complainant had told inconsistent stories to different people.  KT formed the view that the complainant must have been lying because what the complainant had told her and LT was "completely different" to rape.[61]  They also discussed why they did not do anything about the complaint when the appellant was still in their house.  Then "things started coming to [them] about what actually did happen, or what [the complainant] had told [them]" and how she said it could have been a dream.[62]

[49] LT was the first to mention the dream when she said: "You remember I was saying that it could have been a dream."[63]  KT thought back and recalled that the complainant was unsure and said it could have been a dream.  She accepted that, in remembering the conversation about the dream, she was working backwards.  She was exploring why she neither asked the appellant to leave nor called the police; she was shocked to find that the appellant was charged with rape when what the complainant disclosed to her was not rape; and she had heard the complainant had told different accounts to different people.  She denied, however, that she had imagined the conversation about the dream.  When she went upstairs after attempting to talk to the appellant, she asked the complainant what happened.  The complainant responded: "Look, I don’t know.  I’m not sure.  It could have been a dream."[64]  She had her head down, was not making eye contact and was running her fingers through her hair.  KT recalled thinking that:

"this can’t be happening because [the appellant has] kids of his own and he wouldn’t... do anything like that, and by seeing him he was in a state that he was not capable of even moving from the couch and reaching back to where [the complainant] was."[65]

[50] KT discussed her evidence with LT after they had both given evidence as she wanted to be completely sure that the complainant said that she may have been dreaming before raising it with the appellant's lawyers.  When KT spoke to the appellant's lawyers, she was only "98/99 per cent sure."[66]  She did "really believe"[67] that the complainant said she may have been dreaming because KT could "remember clearly that [the appellant] wasn't capable of doing any of those things" to her.[68]

LT's evidence

[51] Two affidavits from LT were filed.  In the first, she deposed that shortly after giving evidence at the trial she remembered that she failed to mention both in her police statement and in her evidence at trial, "a significant part of evidence".[69]  When KT asked the complainant, "are you dreaming this?" the complainant responded "maybe, it could have been a dream, I'm not sure, but there is a man downstairs."[70]  The complainant was sure there was a man downstairs, but she was unsure whether his touching of her was part of a dream.  LT had been sexually assaulted as a child and from the way the complainant was behaving, she was uncertain if the complainant had experienced anything more than a dream.  When KT and LT went downstairs, LT saw the appellant sitting fully clothed on the couch.  KT was having difficulty waking him.  The complainant went to sleep upstairs.  In the morning, the complainant told LT that she was "ok".  LT and the complainant stayed at the house for the rest of the school holidays.  The complainant acted "quite normal and without any signs of trauma."[71]  The family did nothing about the incident because they all thought it arose out of a dream.

[52] In a second affidavit LT deposed that after she gave evidence at trial she spoke with KT and EW.  KT and LT discussed why they allowed the appellant to remain in the house and did not call the police.  KT, LT and EW all raised the fact that the complainant told KT and LT that the incident "could have been a dream".[72]  LT insisted that she heard KT ask the complainant if she might have been dreaming.  The complainant initially stated that it had not been a dream, that there was a man downstairs and that he had touched her.  When KT and LT went downstairs, LT saw the appellant on the couch.  He looked so intoxicated that he could not raise his head.  KT was trying to speak to the appellant but he was slurring his words.  KT, LT and the complainant then returned back upstairs.  KT asked the complainant what had happened and the complainant said "I don't know, it could have been a dream".[73]

[53] The next day, EW wanted to physically hurt the appellant but LT said: "Don't do anything stupid because it could have been a dream.  She doesn't know herself whether it was a dream."[74]  LT deposed that if she had been "convinced" that something had happened to the complainant, she would have ensured the appellant left the house immediately and called the police.  She was "certain" that the complainant told her that the incident could have been a dream.[75]

[54] LT did not put this in her statement to police, tell the prosecutor or give evidence of it at trial for two reasons.  First, she was "shocked" to discover that the appellant was charged with rape.[76]  Second, she was going through a very stressful divorce which was finalised in October 2012 shortly after the trial.  LT did not contact the prosecution after she remembered the dream conversation as she was scared she would get into trouble.

[55] In cross-examination, she accepted that when she gave her statement to police and her evidence at trial, she knew that it was a rape investigation and charge yet this did not prompt her memory about the dream conversation.  She recalled checking to see that the appellant's clothes were on and that his buttons and belt were done up.  She used her own experience of sexual assault at a young age to assess whether anything had happened to the complainant and expected the complainant to react as she had.  She accepted that she was still going through a stressful divorce when she remembered the dream conversation after the trial.  She remembered very clearly what the complainant said about the dream because that was why they did nothing about it.  She had not reconstructed a memory of the conversation but remembered it occurring.

EW's evidence

[56] EW's evidence need not be discussed in detail, as, insofar as it is relevant, it is hearsay and would not be admissible at trial unless there was a suggestion that KT and LT had recently concocted their evidence about the complainant's statement that the touching could have been a dream.

Ground 1 – The conduct of trial counsel

The contentions of the parties

[57] The appellant's complaints about the conduct of his trial counsel constituting the first ground of appeal were twofold.  The first was that he should have sought instructions from the appellant to apply for a mistrial and should have either applied for a mistrial or raised the unusual course of events concerning EW and KT's evidence and LT's potential evidence with the trial judge.[77]  There was no forensic reason for or advantage in not doing so.  Alternatively, the trial counsel's independent decision to refrain from applying for a mistrial was an error.  The result was that the appellant was deprived of the opportunity of applying for the discharge of the jury.  The trial was conducted, in a significant respect, in the absence of instructions.  It was a fundamental error in the trial process which has occasioned a miscarriage of justice.

[58] The respondent, relying on Nudd v The Queen,[78] submitted that merely because defence counsel failed to act in a way which hindsight suggests was more appropriate does not itself demonstrate a miscarriage of justice.  Whether a miscarriage of justice occurred must be determined with regard to the further evidence of KT and LT.  When that is considered there has been no miscarriage.

Conclusion on ground 1

[59] In an appeal based on the alleged incompetence of trial counsel, the focus is on the impact of the conduct on the trial in terms of whether or not there has been a miscarriage of justice under s 668E(1) Criminal Code 1899 (Qld).  The conduct of trial counsel can lead to a miscarriage of justice where it deprives the appellant of a fair trial.  This includes depriving the appellant of a chance of acquittal where it is reasonably open.  The inquiry to be undertaken is an objective assessment of whether the course taken by trial counsel was capable of a reasonable forensic explanation.[79]

[60] In the present case, the evidence had closed, counsel had addressed the jury, the judge had concluded his summing up and the jury had retired to consider their verdicts when EW and KT first approached the defence lawyers with their further evidence.  On the information then provided, it was only LT who had the critical conversation with the complainant to the effect that she may have been dreaming about the touching.  Defence counsel understandably considered that he would require a signed statement from LT as to her conversation with the complainant before he could take the matter further.  In the dying stages of the trial when EW and KT spoke to him, he did not have sufficient cause to ask the judge to order either that there be a mistrial or that the prosecution re-open its case and recall EW, KT and LT; or to again call on the appellant, allowing him to call the evidence in his case.  Any such application was most unlikely to succeed, at least without a signed statement from LT.  At best, he could have applied for an adjournment to obtain a statement from LT to further consider his position.  The judge, however, would be unlikely to grant an adjournment at that late stage of the trial with the jury considering its verdict.  On the state of the material available to defence counsel, his failure not to both seek instructions from the appellant about applying for a mistrial or other orders and in not seeking any such orders from the trial judge was an entirely reasonable forensic decision.  It follows that the first ground of appeal is not made out.

Ground 2 – The further evidence in the appeal demonstrates a miscarriage of justice

[61] The appellant's contention that the further evidence demonstrates a miscarriage of justice is interwoven with his application to adduce further evidence.

The contentions of the parties

[62] The appellant's second ground was that there was a miscarriage of justice occasioned by the absence of the further evidence led in this appeal because there was a significant possibility that, had it been presented at trial, the appellant would have been acquitted.  Given that the trial testimony of LT and KT conformed to their police statements, the reasonable diligence of the appellant trial lawyers could not have discovered it until EW and KT approached them, well after the close of the evidence at trial.  This made the further evidence fresh rather than new.  The distinction between fresh and new evidence is designed to counter forensic decisions by an accused to withhold evidence at his trial and that is not the case here.  KT and LT's evidence is fresh, credible, relevant and particularly significant in light of the complainant's evidence about another dream involving similar sexual touching and the inconsistencies between her evidence and the preliminary complaint evidence.  If the fresh evidence had been adduced at trial, the jury may well have been left with a reasonable doubt about the complainant's overall reliability and found him not guilty.

[63] The respondent contended that the evidence was available at the trial, the conclusion of which did not occur until the jury had returned a verdict.  Accordingly, the evidence should be categorised as new evidence.  Regardless of whether the evidence is fresh or new, the Court must assess its credibility and probative value in determining whether a miscarriage of justice occurred.[80]  The evidence of KT and LT is so lacking in reliability and cogency that it is not capable of belief and could not result in a significant possibility that the jury, acting reasonably, would have acquitted the appellant.  It is implausible that they did not recall the complainant's statement about the dream until after they gave evidence.  Their further evidence was of great significance and central to their evidence at trial.  While they may have been honest in their further evidence, it was an unfortunate reconstruction which contradicted their evidence at trial.  It followed upon their collective attempt to justify their inaction in neither removing the appellant nor calling the police; their shock that he was charged with rape; and their concern that the complainant had given inconsistent versions of the incident to different people.  Their recollections were tainted by their discussions with each other after giving evidence.  KT effectively accepted that her memory was a reconstruction.  It was significant that when the complainant's mother rang from New Zealand and raised the incident, KT told her that the incident did happen and did not mention that the touching may have been a dream.  LT's further evidence was partially inconsistent with KT's further evidence.  LT unreasonably based her rejection of the complainant's account on LT's own expectation as to how the complainant should have reacted.  LT gave evidence at trial that the complainant was twice asked if she was dreaming,[81] but yet did not remember that the complainant said the touching may have been a dream.  If the complainant had said this, LT would have given evidence of it.  A jury would not have accepted the further evidence and would not have been left in doubt about the reliability of the complainant's evidence that the appellant indecently touched her.

Conclusion on ground 2 and the application to adduce further evidence

[64] In determining an appeal which turns on further evidence, the Court must consider two questions.  The first is whether the evidence should be received.  The second is, if received, whether that evidence, when evaluated with all the evidence adduced at trial, requires that the conviction be set aside to avoid a miscarriage of justice.  A miscarriage of justice will arise where there is a significant possibility that, had the further evidence been adduced at trial, the jury, acting reasonably, would have acquitted the appellant.[82]  These two questions, as in this case, frequently merge.[83]

[65] The test for determining whether a court should receive evidence on appeal which had not been given at trial differs, depending on whether the evidence is fresh or new.  Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.  New evidence is evidence on which a party seeks to rely in an appeal which was available at the trial or which could, with reasonable diligence, then have been discovered.[84]

[66] If the evidence is fresh, in determining whether to allow the appeal the Court must ask whether the appellant has established that there is a significant possibility that, in the light of all the admissible evidence at trial together with the fresh evidence, a jury acting reasonably would have acquitted the appellant.[85]  If the evidence is merely new or further evidence, the application to adduce it may be refused.  This is for two reasons.  The first is to prevent a defendant from deliberately withholding evidence at trial so that, if convicted, it can be used in a re-trial conducted on a different basis.  The second is that the community interest in the finality of litigation requires that there must be powerful reasons for disturbing a conviction obtained after a regularly conducted trial beyond a defendant choosing not to call particular evidence at trial.[86]  That said, there remains a residual discretion in exceptional cases to receive new or further evidence if to refuse to do so would lead to a miscarriage of justice.[87]  The principles governing the reception of new and fresh evidence are not to be treated as inflexible rules strictly binding appellate courts, particularly in criminal cases.[88]

[67] EW and KT did not approach the appellant's lawyers until the jury retired to consider their verdict on the final day of the trial.  Until then, the defence lawyers had no reason not to accept the statements of EW, KT and LT provided by the prosecution.  As the respondent points out, the trial was not then complete but the evidence had closed some days earlier.  Even more importantly, the critical witness, LT, was not available and was not easily contacted.  She did not give a signed statement until she approached the appellant's lawyers well after the trial.  In the highly unusual circumstances of this case, I am persuaded that, at least LT's evidence which is the critical further evidence, is fresh evidence as it was not available at trial and could not then have been discovered with reasonable diligence.

[68] Before accepting even fresh evidence, this Court must also be satisfied that it is relevant, credible and cogent in light of the rest of the evidence at trial.[89]  This is where the two questions (whether to receive the evidence and whether it requires the convictions to be set aside to avoid a miscarriage of justice) merge.  If the evidence lacks credibility and cogency, it is unlikely to give rise to a significant possibility that, had it been adduced at trial, a jury, acting reasonably, would have acquitted the appellant.

[69] The evidence from KT and LT (that the complainant told LT she was sure she did not dream that there was a man downstairs but she may have dreamt that he touched her) was highly relevant to the central issue at trial: the complainant's reliability and credibility.  Had the appellant's counsel known of this evidence, he would surely have cross-examined the complainant about it and explored with her and other witnesses the fact that she had had other sexually-themed dreams.  As to whether that part of the fresh evidence is credible and cogent, the Court must assess whether it is capable of belief by a reasonable jury.[90]

[70] The respondent has highlighted inconsistencies between the evidence of KT and LT and other shortcomings in their respective evidence.  It is certainly puzzling that LT did not recall her full conversation with the complainant about the dreams when she gave evidence at trial.  It is puzzling that KT did not tell the complainant's mother about this conversation when she first inquired about the incident.  And it is puzzling that none of them gave this account to police.  In many cases where a prosecution witness recants after trial, the evidence is rejected on appeal for insufficient cogency: see, for example, R v Bryer.[91]

[71] But I found KT, LT and indeed EW to be impressive witnesses, apparently concerned that their unintentionally incomplete and misleading evidence at trial may have resulted in an injustice.  It is significant that their further evidence does not contradict their evidence at trial but expands and enlarges upon it.  When the complainant's mother rang KT many months after the incident, she would have been understandably shocked and keen to support the account of the young complainant who was apparently deeply distressed.  She was unlikely to immediately remember every detail of the incident.  KT, LT and EW did not give statements to police until after that phone call.  They can be expected to have put the incident out of their minds in the many intervening months.  LT's explanation for forgetting the full conversation about the dream was plausible: at the time of the investigation and trial she had many worries as a mother of five young children going through a bitter divorce.  She was adamant the conversation occurred and that it was not a reconstruction.

[72] It occurs to me that this case may be an example of one where it is unfortunate there was no committal proceeding.  It may be that had EW, KT and LT given their evidence at a committal proceeding, they would have remembered the full conversation with the complainant and informed the defence lawyers and the prosecutor of it well before the trial.  While a jury may well reject the evidence of KT, LT and, if called, EW, (that the complainant said she may have dreamed about the touching), I am persuaded their evidence was well capable of belief by a reasonable jury.

[73] The final issue is whether, when evaluated in light of all the other evidence at trial, there is a significant possibility that had the evidence been adduced at trial, a jury, acting reasonably, would have acquitted the appellant.[92]  The prosecution case turned wholly on the complainant being accepted as reliable beyond reasonable doubt in her account that the appellant actually touched her in a sexual way.  There were significant discrepancies between her evidence as to the alleged offence and the evidence of preliminary complaint witnesses as to what she told them about it.  A jury might consider she was prone to exaggeration or even adolescent flights of fancy.  There was also evidence that the complainant had a sexual dream after the offending.  There may be an explanation for that which is unhelpful to the appellant.  But if the jury heard the evidence of LT (and KT) that the complainant told them that she was not dreaming about the man being downstairs but may have been dreaming about whether he touched her, they may well have been left in doubt as to her credibility and reliability about the alleged offence.

[74] For these reasons, I consider there is a significant possibility that, had the fresh evidence been adduced at trial, a jury, acting reasonably, would have acquitted the appellant.  It follows that I would receive the evidence in the appeal, allow the appeal and order a re-trial.  I proposed the following orders:

1.Grant the application to adduce further evidence.

2.Allow the appeal and quash the convictions.

3.Re-trial ordered.

[75] GOTTERSON JA:  I agree with the orders proposed by Margaret McMurdo P and with the reasons given by her Honour.

[76] DOUGLAS J:  I agree.