R v SCB[2013] QCA 276

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant, a juvenile, was convicted of one count of indecent treatment, two counts of rape and two counts of attempted rape (in each case as an alternative to rape) of an eight year old boy, S, and was also convicted of attempted rape (again as an alternative to rape) of a second boy, T, who was five years old.  He was sentenced to terms of detention ranging between 12 months and three years in respect of those convictions.

[2] The appellant originally appealed against his convictions on the ground that the verdicts were unreasonable and sought leave to appeal against the sentences on the ground that they were manifestly excessive.  Leave was given to add a further ground for the appeal against convictions: that the trial judge erred in failing to direct the jury in respect of the presence of a support person as required by s 21AW(2) of the Evidence Act 1977.  Counsel for the respondent conceded that unless the court were to depart from authority on the point,[1] the appellant must succeed on that ground.  The court, accepting the correctness of that concession, allowed the appeal to the extent of setting aside the convictions, while reserving its reasons and further orders.

The initial complaint

[3] The complainants, S and T, were first cousins.  Their grandfather was the uncle of the appellant, who was 14 or 15 years old at the relevant times.  The appellant lived with the children’s grandparents while he attended school in the country town where they resided.  The matters came to light in July 2011 in this way: S’s mother found that the two complainant children had locked themselves in a bedroom.  When she managed to force the door open, T was beside the bed trying to pull his pants up and S was hiding under the covers.  She asked them to explain what they were doing and they replied that “they had been sticking their fingers up each other’s bums”.  She asked who had shown them such things and they responded (first T, then S) that the appellant had done it to them at their grandparents’ house.  S said it had also happened once at T’s mother’s house.  Asked if the appellant had done anything else to them, S “said that he had put his doodle and his fingers up his bum”.  The children said that these things had happened “heaps of times”.  The appellant had told them that if they revealed to anyone what he was doing, he would hurt them.

S’s s 93A statement

[4] That incident led to both children being interviewed by a police officer two days later.  In his interview, S said that while he and the appellant were watching a DVD, a “Looney Tunes” cartoon belonging to his grandparents, the appellant “sort went [sic] into my pants”.  He said, “get out” but the appellant would not.  The next day the appellant “put his finger up my bum and his doodle up my bum”.  Those were, S said, the only two things that the appellant had done to him.

[5] Questioned further, S said that the first incident had happened while he and the appellant were in his grandfather’s bed.  He thought it occurred on a Sunday, at the start of the previous year.  The appellant was “sort of sneaking into [his] pants ….  And then he just moved a little closer”.  At that point S’s grandparents entered the room.  Asked what the appellant did when he got his hands down his pants, S said that he was touching his “doodle”.  (This allegation gave rise to count 1 of the indictment, indecent dealing.)  He stopped when their grandparents entered the room.  Asked how many and which hands the appellant used, S indicated one, the left.  The police officer asked whether, when the grandparents came in and the appellant stopped what he was doing, he and S had blankets over the top of them, to which S responded “Mm mm” (indicating that they did).  The appellant moved, S said, to a different part of the bed.  His grandmother had asked what they were doing, to which they both said “nothing”.  S’s grandfather told the appellant he had “an eye on [him]”.

[6] Asked what then happened, S said that the appellant “started again”, while he was trying to push his hand back; “he kept on repeating and repeating and repeating”.  The police officer asked how many times, whether every time the appellant’s hands had gone down S’s pants and whether every time his hand had touched S’s “doodle”; S nodded in response to the last two questions.  Asked what the appellant did to his “doodle”, S said “he would probably, he would wriggle it around”.

[7] The police officer and the child then seemed to be at cross-purposes.  The officer asked “How did it all stop?”  S, evidently taking the question at a more general level, said “Me and my cousin [T] were doing it and then Mum came in and then, yeah.  That’s how it stopped.”  The police officer, apparently mistaking this for a reference to the specific incident with the appellant thus far discussed, asked, “So was [T] here at the time as well?”, to which S answered “Mm mm” (in an affirmative tone).  Asked what T was doing, S said “Nothing.  Until [the appellant] went out and then we started and all that”; this, he clarified, was “a few days after”.  The answer seems to place the appellant at S’s home immediately prior to the incident in which S and T were surprised by the former’s mother, but that would be entirely inconsistent with the mother’s evidence.

[8] The police officer then asked, specifically in relation to “when this first time happened with you and [the appellant]”, whether T was in the room.  To this suggestion, S responded in the affirmative.  Asked what T was doing “when [the appellant] was doing it to you”, S said that he was watching the television.  He was asked whether he had seen the appellant do anything to T, and replied “I saw his hand move up over to [T]”.  The officer then put it to S “so that went on all day?”, to which the child agreed.

[9] S was asked what had happened the next day, and answered “He put his finger up my bum and his doodle up my bum”.  (Those allegations led, respectively, to the conviction of rape on count 2 and of attempted rape on count 3 of the indictment).  He said that when the appellant started “doing that”, they were watching the movie they had commenced but not finished the previous day.  Then T came in and the appellant stopped.  They went outside and played football and then returned inside.  S’s account then altered slightly, to the three boys’ encounter having begun with their playing games before they went into the room together to watch the DVD.  Towards the end of the movie, the appellant had started doing “that” (which, on questioning, S identified as the placing of finger and “doodle” “up my bum”) when someone came in, and S moved away.  As he was going out, S said, the appellant threatened him, and subsequently made a fist of one hand and slapped him across his face.

[10] Asked to go into more detail as to precisely what had happened, S said that the appellant was “trying to force me to do it to him”; he had said “no”, and then the appellant “made me do it to him”.  The police officer did not explore, and perhaps did not notice, what seemed to be a new allegation, that S was made to perform some act on the appellant, but instead asked S to explain what the appellant did when he put his finger and doodle up S’s backside.  S responded that the appellant “snuck up” to him without his noticing.  The police officer asked whether S was under the covers; he said that the appellant was under them and he was not; he was up at the top.  Then S’s grandparents came in and the appellant had “quickly rushed up to the top.”

[11] The officer asked S to explain what had happened after the appellant had “snuck up” on him.  He said that he thought the appellant had pulled down his pants and “undies”, put his finger “up [S’s] bum” and then put his “doodle up [S’s] bum”.  He thought the appellant had used the index finger on his right hand.  Asked, ambiguously, how many times the appellant “did that”, S said, “I think he would do it about 20 or 30 times...and when he stopped he would probably do it about 50 or 60 times”.  The police officer asked what had happened after the appellant stuck his finger in his bottom, and S said that he had then “put his doodle up my bum” and then “put his finger up my bum”.  He told the appellant to stop, but he would not, so S punched him in the face.  He thought that he was lying down when the “doodle” penetration happened, and that it lasted about 20 seconds.  He agreed with the police officer’s proposition that his grandparents had then come in.

[12] The police officer reminded S that at the beginning of the interview he said that this had only ever happened twice and asked him if there had been more times.  S said there were; asked about the last time it had happened, he said that it was at his father’s work a couple of days previously (S’s father’s job was cleaning portable lavatories.) His father was cleaning out a toilet, and S and the appellant were in another toilet when the appellant had performed the acts of inserting his finger and his penis into S’s bottom.  (Those allegations led to the convictions of rape on count 4 and attempted rape on count 5 of the indictment.)  Then S had said he was going, and they returned to a game of hide and seek.

S’s pre-recorded evidence

[13] S gave pre-recorded evidence in October 2012, with a support person present.  He was reminded of his statement to the police officer to the effect that the appellant had touched his (S’s) penis in his grandfather’s bedroom, and the following day had put his finger and penis into S’s anus.  Asked which room of his grandparents’ house the second incident had happened in, he answered that it was T’s mother’s room.  He elaborated on that by saying that because his grandfather had told the appellant that he had an eye on him, the appellant thought that they should move to a new location; hence the move to T’s mother’s room.

[14] In evidence-in-chief, the prosecutor asked S, in respect of the incident giving rise to counts 4 and 5, how he came to be in the toilet with the appellant.  He answered “He sort of [made me] unconscious”.  Asked to explain, he said that they had been playing hide and seek when the appellant had “shoulder barged” him into the side of one of the toilets.  He had then taken him inside the toilet where he performed the acts on him.  S was asked what he meant by being unconscious.  He replied that he could not see straight and it was blurry; this was because the appellant had “shoulder barged” him and it “could have possibly been by the heat too.”  As to what had happened with the clothes he was wearing, he said that the appellant had taken off his pants and his undies.  The appellant had his finger in S’s bottom for “10 to 20 seconds” and his “doodle” in his bottom for five to 10 seconds.

[15] Asked by the prosecutor if he had ever seen the appellant “touch [T] in a rude way”, S said that he had seen the appellant with his finger and his “doodle” in T’s bottom in their grandparents’ room.  This was on a Sunday in 2010.  They were not visible when he first looked into the room, but he saw them when he looked under the bed.

[16] In cross-examination, defence counsel asked S why he had not mentioned to the police being unconscious or “shoulder barged”.  He explained that he thought the appellant was already in enough trouble and he did not “want to go too harsh on him”.  Pressed about why he was prepared to tell the police that the appellant had put his finger and penis in his bottom but not about being shoulder barged, he said that he was scared because when the appellant grew up “he could find me again”.  As to why he had not told the police officer that he saw the appellant penetrating T, S said that the police officer “never asked me”.  He claimed that he had told his mother about that incident.

[17] When the appellant had assaulted him at the toilets, S said, he had kept quiet and not told his father because the appellant had threatened him with his fist and “shoulder barged” him.  After the incident they had returned to his grandparents’ house where he, T and the appellant played football.  Quizzed about the incident which he said had taken place in his aunt’s room, (the subject of counts 2 and 3), he said that he and the appellant were under the bed.  The appellant had made excuses to get him under there, telling him to help clean up toys under the bed.  T was present, but he was on top of the bed.  S’s younger brother (born in May 2009) was not there because he “wasn’t born yet”.  S was insistent that his aunt was living there when that event occurred.  Her room was on the opposite side of the house from the bedroom which, he maintained, his grandparents shared.

T’s s 93A statement

[18] T was asked in his interview what he had come to tell the police officer about.  He said it was the appellant, who had “put his doodle up my bum and his finger up my bum”.  The appellant did that to everyone; he watched rude movies and copied what the rude people having sex were doing.  He had asked T if he wanted to have sex.  T had said “no”, but the appellant “was doing something to me like finger up my bum”.  He had put T’s pants down and used his finger.  This had happened at T’s grandparents’ house and at his home.  He did not know when it had happened.

[19] T said that the appellant insisted that he watched “rudey” movies and “keeps on doing it to me”: “putting his doodle up my bum all day and his finger up my bum all day”.  When T was watching a cartoon, the appellant would put a “rudey” movie on.  The appellant pulled T’s pants and his undies down and put “his doodle up [T’s] bum”, which really hurt.  (This was the allegation underlying count 6, on which the jury convicted of attempted rape.) He had not seen the appellant’s “doodle”; he, T, was on the bed with a blanket on him and was not watching the appellant.  Asked where his parents were when this occurred, T said they were outside talking.  His grandparents were also outside talking and smoking.  He identified a number of other relatives who were there as well, including S’s mother and father.  His three year old brother was, “maybe”, present in the room when he and the appellant were watching cartoons; no-one else was there.  When it happened at his grandparents’ house, it was in his grandfather’s room.  When it happened at his house, it was on the mattress where the television was.  No‑one else was there; his grandmother had dropped him off and his mother had left the house to go to Browns Plains.

T’s pre-recorded evidence

[20] When he came to give evidence recorded for the purposes of trial in October 2012, T was six years old.  As was the case with S, a support person was present.  Defence counsel asked T whether he had ever seen the appellant’s “doodle”; on this occasion T said he had, when the appellant was trying to put it “up my bum”.  He said that the appellant had put both his finger and his “doodle” into his bottom more than once, but he did not know how many times.  He could not remember at what place the appellant had done that, whether it was at his own home or at his grandparents’ house.  T said, five times in succession, that it looked as though the appellant had “got hypnotised” when he watched a movie, with the implication that that was driving his actions.  (It seems probable that the child was repeating something he had heard an adult say.)

[21] Asked about what had occurred at his grandparents’ house, T said that he had been watching cartoons in his grandfather’s room when the appellant came in.  It was daytime and both he and the appellant were under the covers in the bed.  The appellant took his pants off.  T was lying down and felt something in his bottom which hurt.  He told the appellant to stop, then moved and went outside to play by himself.  S was not there and S’s younger brother was not present either because he “wasn’t born”.  T said that he recalled a separate occasion at his own mother’s house when the appellant put his finger in his bottom.  T’s mother was away because she had gone shopping.  Again, this was at a time when his young cousin “wasn’t born”.  T thought he was about four when the incident of the appellant putting his penis in his bottom happened, and five when he put his finger in his bottom.

The evidence of the children’s adult relatives

[22] S’s mother gave the evidence already described, of finding the children putting their fingers in each other’s bottoms.  She and S’s father were separated; he was living with his parents and the appellant.  He said in evidence that each of them had a separate room in the house.  T and S were often there during the day on weekends, sometimes with their siblings.  They would play or watch DVDs, which they could do in his father’s room.  The adults would regularly check on them.  He kept some pornographic DVDs in his room.  They went missing and he found them in the appellant’s school bag.  He was sure that the appellant had not watched them at any time when the adults were in the house.  Usually the three boys – the appellant, S and T – were to be found together watching television, but not under bedclothes.  The small boys would sometimes complain that the appellant bullied them, but there was nothing to arouse suspicion of any other misconduct.

[23] On one occasion, S’s father said, he had taken the appellant and S to his work, where he cleaned “port-a-loos”.  They were there for 20 minutes or half an hour, and the two boys were running around and playing.  He had kept an eye on them and would call out to them every couple of minutes.  He did not notice any change in S’s demeanour; he seemed happy.  When he called them to go home, they were behind him, talking to each other normally.

[24] At some time after the allegations against the appellant had come to light, T’s mother had returned with her children to live with her parents, taking possession of her mother’s room.  She said that in 2010, when the appellant was still living with her parents, she frequently visited the house with her sons.  The children could watch DVDs in her father’s room; occasionally she would check on them.  T appeared to enjoy going to his grandparents’ house.  He had never said anything that caused her any concern.  On the day that her sister-in-law had found S and T touching each other, she had spoken to her son, who said that the appellant had put his “dibley” (the term she said he used for penis) “in his bum”.  T had told her that the appellant threatened him and held him down while he was doing it.

[25] The boys’ grandfather (the appellant’s uncle) gave evidence that the appellant and the children sometimes watched DVDs in the bedrooms.  There was always someone keeping an eye on them, because they were given to fighting.  When he looked in on them, there was never an occasion when he saw the appellant or the small boys under the blankets or under the bed.  He did not remember ever telling the appellant that he had his eye on him.

[26] The children’s grandmother said that the children would watch DVDs in her room or her husband’s.  Her room had a bed which was approximately two feet off the ground.  She would not allow the doors to be shut and would occasionally check on the boys.

Unreasonable verdicts

[27] The way in which the allegations against the appellant emerged gives some cause for caution.  The children were having to account for their behaviour and may well have been anxious to shift responsibility.  S was present to hear T blame the appellant for digital penetration before making his own allegation; and it was on S’s mother’s questioning as to whether anything else had been done to them that the allegation of penile penetration emerged.  Some interweaving of their accounts may also be reflected in the fact that when they were interviewed, T adopted S’s word, “doodle”, for penis, rather than the word his mother said he ordinarily used, “dibley”.  There are, however, more substantial reasons for concern about the reliability of the allegations.

[28] The first is S’s apparent suggestibility and the extent to which he was led into answers.  The overwhelming impression from his police interview is that the parts in which the appellant was said to be present on the occasion on which S’s mother came upon S and T, and T was introduced into the first incident between S and the appellant, were the product of the police officer’s suggestions and S’s willingness to adopt them, rather than any genuine recollection.  The questioning about whether T was present, whether S saw anything done to him and the duration of what occurred evidently emanated from a misunderstanding of S’s original response, but in any circumstances was leading and inappropriate.

[29] A second cause for concern is the degree to which S’s account had advanced and altered by the time he gave evidence the following year.  By this time his recollection of arrangements at his grandparents’ house had clearly faded, because he insisted that his aunt was then living there and his grandparents shared a room; something which on the adults’ evidence had happened only subsequent to the emergence of the allegations against the appellant.  In giving evidence, S said for the first time that he had seen the appellant put both his finger and his penis in T’s anus, something which had happened under a bed.  Under cross-examination he claimed, again for the first time, that the incident the subject of counts 2 and 3 had similarly occurred, not on a bed, but under one, with a description of being lured there under the pretext of clearing up toys.  That was markedly different from his original version, in which his grandparents entered the room to find him and the appellant on the bed, the latter hurriedly moving to the top of the covers.

[30] On this occasion, too, S went into much greater detail of the incident underlying counts 4 and 5, asserting for the first time that the appellant had “shoulder barged” him and made him unconscious, or at least rendered him unable to “see straight”.  His explanations for the difference between his versions of the event ranged from compassion for the appellant to fear of him.  His account of that incident is also thrown into question by his father’s evidence that they were only at the toilets for a short time and that he was keeping an eye on the boys, regularly calling out to them.  It seems improbable that S could have been assaulted, taken into a toilet, had his trousers and underpants removed and been penetrated both digitally and by the appellant’s penis without his father noticing anything untoward.  Nor does it seem consistent with his father’s observation of his happy demeanour and normal behaviour.

[31] The problem of inconsistency with adult evidence is common to both children’s accounts.  The evidence uniformly given by the adults was that the children were always supervised.  S’s father was adamant that pornographic movies could not have been played while the adults were present in the house; he and the boys’ grandfather both said that the children and the appellant did not watch DVDs under bedclothes; and their grandmother said that she did not allow the doors to be shut.  On S’s account, however, both grandparents entered the grandfather’s room at a time when the appellant was touching S’s penis under the covers, questioned them and then left them in the bed, after which the appellant resumed the activity.  The following day, S said (at least in his interview), he was lying down with the appellant penetrating him when his grandparents entered and the appellant “quickly rushed up to the top” of the covers.  Similar events were supposed to have happened 50 or 60 times, unremarked by any of the adults in the house.

[32] On T’s account, similarly, the appellant penetrated him on the bed in his grandfather’s room while there was a blanket over him.  T’s version of events focussed on the appellant making him watch “rudey” movies, although again it seems improbable that that could have occurred without the adults in the house being aware of it.  T’s claim that the appellant had penetrated him at his own home at a time when there was no adult present because his mother had gone shopping, or to Browns Plains, seems inconsistent with the evidence about the usual supervision of the appellant and the two small boys.  It must be said, though, that T’s mother was not questioned about whether she had ever left the appellant alone in her house with T.

[33] Another odd feature of the case is the absence of anything in the children’s descriptions of penetration by the appellant’s penis that would give it the ring of a real experience.  They simply repeated the same allegation each time they were questioned: that the appellant had “put his doodle up the [relevant child’s] bum”.  The only additional detail, which T alone mentioned, was that it “really hurt”.  One would expect that it would indeed be an extremely painful experience, yet no adult observed anything about the children to suggest that they had experienced any discomfort.  And the Crown called no medical evidence to support the allegation of penetration, penile or digital.

[34] That lack of detail and corroboration may explain how it was that the jury arrived at verdicts of attempted rape on the counts involving penile penetration.  There was no difference in the quality of the evidence on the counts which involved digital penetration from those involving penile penetration.  Yet the jury accepted that the former occurred, but were not satisfied as to the latter, giving the respective verdicts a flavour of inconsistency.

[35] And if the jury were not satisfied as to penile penetration, it is difficult to see what they could have been satisfied of which would amount to attempted rape.  As already remarked, the children gave no detail of the acts of penetration, merely repeating that the appellant had “put his doodle up” each child’s bottom.  If the jury did not accept to the requisite standard that that occurred, there was nothing on which they could convict of attempt: no physical act short of penetration which could be so construed, no particular act which could be said to manifest a thwarted intention to penetrate.  The attempted rape verdicts look very much like a compromise, the jury not being quite satisfied in each case of the offence charged.

[36] In consequence of the combination of concerns I have identified, I do not think it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  I am left with the feeling that “there is a significant possibility that an innocent person has been convicted”.[2]  Verdicts of acquittal should be entered.

[37] In view of that conclusion, it is unnecessary for me to deal with the ground concerning s 21AW(2) of the Evidence Act 1977.  It suffices to say that the failure to give a direction concerning the presence of support persons when the children gave evidence plainly was, on the authorities cited at the beginning of this judgment, an error.  This was not a case in which the court could conclude that no substantial miscarriage of justice had resulted from that error.

[38] MUIR JA:  I agree that the appeal should be allowed and that verdicts of acquittal should be entered for the reasons given by Holmes JA.

[39] PHILIPPIDES J:  I agree with the reasons of Holmes JA and the orders proposed.