R v TAC[2013] QCA 283

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted after a trial of six counts of indecent treatment of a child under 16 years, with the aggravating circumstances that she was under 12 years, was his lineal descendant (his daughter) and was under his care.  He appealed those convictions on the grounds that the verdicts were unreasonable; that the judge’s direction to the jury as to the dangers of acting on the complainant’s evidence was deficient; and that the judge erred in failing to direct the jury in accordance with s 21AW(2) of the Evidence Act 1977.  The Crown conceded that the last ground was made out and that the proviso could not be applied.  The court has already allowed the appeal to the extent of setting aside the convictions.  It remains to give reasons for doing so and to decide what other orders should be made.

The complainant’s s 93A statement

[2] The complainant, H, was interviewed about the matters the subject of the indictment in October 2011, when she was 15 years old.  She began her interview with police in general terms, saying that four or five times when she was in year 3 or 4, “probably [she] was seven years old and eight”, the appellant had “tried forcing [her] to nearly have sex with him”.  She asserted that when the appellant tried to touch her, she ran into her room but he ended up dragging her back out.

[3] The offences were charged as occurring on dates unknown between 31 December 2004 and 1 January 2007.  The first four of the counts of which the appellant was convicted arose out of H’s description of an occasion when the appellant babysat her while her mother was attending a meeting at the local school.  H said that the appellant brought into the house from his car a plastic bag containing magazines and videos.  The cover of one of the videos, H said, showed women sucking men’s penises.  The appellant told her that if she did not watch the video, he would bash her and that if she told her mother, the latter would “get hurt”.  (This was the subject of count 1: wilfully exposing the complainant to an indecent film.)

[4] Having put the video on to play, the appellant undressed down to his underpants.  He tried to bribe H, first to watch the video and then to give him a “hand job”.  He offered her $50 for the latter, and said that if she did not comply he would force her to do so.  He took hold of her hand and placed it, through a slit in his underpants, on his penis, moving it up and down until he ejaculated (count 2: indecent dealing).  The appellant then instructed H to get tissues for him.  She did so and then ran into her bedroom, where she tried to put things in front of the door to prevent his entry.  The appellant, however, pushed the door open, pulled her back into the living room and forced her to watch the video.  H said that the video depicted adults having sex with each other (count 4[1]: wilfully exposing the complainant to an indecent film).

[5] H said that while she was watching the video, the appellant, who by then had taken off his underpants, was rubbing his penis (count 5: wilfully exposing the complainant to an indecent act).  That continued until the telephone rang three times, which was the agreed signal for her mother to indicate that she was on her way home.  The appellant then put his magazines in a cupboard in her mother’s room and replaced the videos in the plastic bag.  The interviewing officer asked H how she knew about the magazines being put in a cupboard.  She replied that the appellant, when he emerged from her mother’s room, said that he had put the magazines in her mother’s cupboard “underneath her box thing”.  These events happened, H said, when she was seven or eight years old.

[6] H identified a separate episode as occurring the day after she had an asthma attack.  She was in fourth grade.  Her mother had dropped her at the appellant’s barber shop to be minded by him.  H recalled that this occurred on a Friday, because her mother had said that they would do something together the following day, which was Saturday.  The appellant took a break from his work and took her to his house where, she said, he began to rub his penis while watching television (count 6: exposing the complainant to an indecent act).  She hid in the kitchen behind a cupboard and refused to join him while he masturbated.  The appellant then called her in to his bedroom to watch him try on new underwear, in the process exposing his penis to her (count 7: exposing the complainant to an indecent act).

[7] H said there was another occasion when the appellant had “nearly got [her] to blow job” [sic].  She said that he stood in front of her wearing only a shirt, holding his penis in his hand and putting it in her face.  She reacted by jumping away, over the chair on which she was sitting.  At the same time the telephone rang three times, which indicated that her mother was on her way home.  That incident was the subject of count 8, on which the Crown entered a nolle prosequi at the close of its case.

[8] In the same interview, H said that there was an occasion on which the appellant forced her to lie down, pulled her underwear down and tried to move her legs so that he could lick her vagina.  He offered her various amounts of money, up to $100, to comply.  She kicked him in the groin.  Other similar incidents had occurred: in one, H thought she had passed out and woke to find that the appellant was no longer there; on another occasion she had got up and run to her bedroom.

The preliminary complaint evidence

[9] H was asked what had caused her to approach the police.  She said that she had gone to her grandfather’s funeral and realised that her mother had been badly treated.  Feeling guilt herself, she felt impelled to tell someone what had happened to her.  That had led her to speak to the deputy principal of her school, Ms Butterworth.  After speaking to Ms Butterworth, she had told one of her friends, J, about what had happened to her.

[10] Ms Butterworth gave evidence.  She said that she had had a conversation with H at her grandfather’s funeral in mid October 2011, in which she encouraged the girl to talk to someone about her father.  A couple of days later, H had come to speak to her.  She said that her father had babysat her when she was between seven and eight and had brought a pornographic video which he made her watch.  Ms Butterworth asked whether he did anything else, to which H responded to the effect that he “did everything else but sex”.  Ms Butterworth had made a report of the conversation which included the note:

“Student [H], father physically/sexually interfered with [H] on numerous occasions between ages 7-9 while babysitting [H] in mother’s absence”.

(In evidence, however, Ms Butterworth said that she had no actual recollection of the content of the note.) Ms Butterworth contacted H’s mother, Ms W, who arrived soon afterwards.  H informed her mother that the appellant “did things” when he babysat her.  Ms W said, “What, touch you?  Why didn’t you tell me?” and H answered that she was afraid, because she was threatened.

[11] J was interviewed by police.  She said that she had first heard about an incident between H and her father in 2009, when they were in Grade 8.  H had come to school crying because her father had arrived on the doorstep wanting to talk to her and she had not wanted to talk to him.  J was asked whether H had ever talked about what her father did to her.  She said that the previous year (2011), H had told her that when she was in Grade 4, she saw her father “sitting on the couch touching himself”.  H had walked into her room and ignored it.  H’s mother was in the kitchen “or something like that” at the time.  J had tried to recall if H had mentioned anything else, but, she said, “I pretty much can’t remember much.”

The evidence at the pre-recording

[12] H gave pre-recorded evidence in January 2013.  She said that when they were in Grade 8, she had told J of what the appellant had done, but could not recall what she had actually said.  J, who also gave evidence, confirmed what she had told police: that H said she saw the appellant masturbating and that she left the room.  J said she could not recall whether H said where her mother was at the time, but, reminded of her statement, confirmed that H had told her that her mother was in the kitchen “or something like that”.  According to J, that was the extent of H’s disclosure.

[13] Cross-examined, H said that there were three occasions on which the appellant had molested her, twice at her home and once at his house, all when she was in fourth grade.  H was asked whether there were pornographic magazines that the appellant had shown her in the course of babysitting her and responded, “That’s true”.  She said that the appellant placed the magazines in the cupboard on the first occasion on which he babysat her, and he did not retrieve them again after that.  The appellant also had two videos which he took with him, putting them into first one bag and then another before placing them inside his jacket.  She did not remember having a nightmare about them, but she did recall a conversation with her mother about their being in the cupboard.  H said that she and her mother one evening, at about 6 or 7 pm, had gone to the cupboard, lifted up the box and found the magazines.  She could not recall whether she told the police officer that the magazines had been discovered in the cupboard.  The magazines remained in the cupboard until the police arrived to collect them, although she and her mother had put them in an envelope and replaced them there.

[14] In the episode which occurred at the appellant’s house, H said, he made her go into his bedroom to see him try on underwear by threatening her.  It was put to her that she had not mentioned threats in the police interview, and that no threats had in fact occurred.  She responded, “Just a little bit maybe, but I can't remember”.  She was asked to describe the events of the first occasion and said they consisted of the appellant showing her one film, which was playing in the background, and making her masturbate him.  Her mother had telephoned as he was getting up to get some tissues to clean himself.  Nothing else of a sexual nature had happened on that night.

Other evidence in the Crown case

[15] H’s mother, Ms W, said that she had arranged for the appellant to babysit H while she was at school meetings on four occasions in 2005.  She recalled that H had had a bad asthma attack in June 2005.  She had brought the child home from hospital on a Thursday and had asked the appellant to mind her on the Friday while she worked.  He collected her from their house at about 8.30 am and Ms W picked her up from the barber shop at about 1.20 pm.  After that occasion, she thought there might have been one more time in October 2005 when the appellant had looked after H.  The appellant had had intermittent contact with her and H in the following years, but they had lost touch between 2009 and 2011.

[16] In October 2011, Ms W said, she had gone to H’s school after a call from the principal.  H was upset, but she did not say why.  Four days later, the girl had woken from a nightmare and told her that there were magazines in the cupboard showing people with no clothes on.  Ms W said that she opened the cupboard and moved a box that she had some possessions in, to find a stack of pornographic magazines in the corner.  H refused to say anything more about them, but the following day a police officer had collected them.

[17] Under cross‑examination, Ms W said that she had never previously looked under the box to see what was there.  She had found the magazines early on Sunday morning and had placed them in an envelope with the intention of giving them to the police.  The following day, she had taken H to the police to make a statement.  It was only after H had been interviewed and they had returned home, that she telephoned the police officer and advised him of the existence of the magazines.

[18] The police officer who interviewed H confirmed that he was advised of the location of the magazines after the interview.  The magazines he retrieved were dated 2001 and 2002.  They were tested, but no fingerprints or seminal fluid were found on them.

[19] The appellant did not give evidence, but his police interview, given in January 2012, was tendered in the Crown case.  In it, he agreed that he babysat H at her mother’s house.  He had not taken any pornographic material with him, removed his clothes or masturbated.  He had never minded the child at his workplace or taken her to his home.  He denied the specific allegations made by H.

The unreasonable verdict ground

[20] The appellant submitted that a number of matters should have caused the jury to entertain a reasonable doubt about his guilt.  To begin with, there was a substantial delay in the making of any complaint.  There were inconsistencies as to how often and when the relevant conduct had occurred.  Ms Butterworth’s note indicated that it was between the ages of seven and nine on “numerous occasions”; H said that it was on three occasions when she was seven to eight years old; while her mother said that the babysitting occurred between Easter and October 2005, when H would have been nine years old.  In addition, hospital records showed that H was discharged from hospital after her asthma attack on a Monday, although she and her mother both recalled it as a Thursday.

[21] H had given an account under cross-examination of the events which were the subject of counts 1 and 2, but did not mention the further events of attempting to barricade herself in her room and being dragged out to watch the video while the appellant masturbated.  H’s evidence had varied as to the order in which she had spoken to J and Ms Butterworth: in the police interview she said that she had called J after speaking to Ms Butterworth, whereas in evidence she said that when she was in grade 8 she told J what the appellant had done.  H’s description to J of the appellant’s conduct included the detail that her mother was in the kitchen at the time, which was inconsistent with H’s evidence that the offences occurred while her mother was absent and the appellant was babysitting her.

[22] There was a discrepancy between the accounts of H and her mother as to how the magazines came to light.  H described going to the cupboard with her mother one evening, while her mother said that the discovery was the result of H’s nightmare in the early hours of the morning.  The hiding of the pornographic magazines as described by H and the appellant’s failure to retrieve them were inherently improbable.  What was also unlikely was that, having found the magazines, neither H nor Ms W mentioned them to the police until after H’s interview.  That was remarkable, given H’s dramatic description of the appellant secreting them.

[23] The question is whether those matters in combination should have led the jury to doubt H’s account.  A delay of seven or eight years in the making of a complaint is not uncommon when a child of tender years is the complainant.  And there is nothing particularly surprising in a girl of 15, recalling events a number of years previously, being unable to say with any precision what her age was at the relevant time.  Ms Butterworth had no actual recall of her note referring to “numerous occasions”; and it may have been a matter of impression from the sheer number of incidents H was describing.  The day of the week on which H was taken to the appellant’s barber shop to be minded is a minor detail indeed.

[24] The conduct H described, of the appellant secreting the magazines and leaving them there, was certainly odd, but that did not mean that it could not have occurred.  There was a discrepancy between the evidence of H and that of her mother as to how the magazines came to light.  However, it is difficult to see how the failure to tell the interviewing officer about them made H’s account any the less plausible; if there were some element of attempting to incriminate the appellant by producing the magazines, one would have expected H and her mother promptly to have bought them to the attention of the police.

[25] There was an inconsistency in the description which J recalled of H’s mother being present in the house while the appellant masturbated.  But the jury was entitled to regard that as a failure of J’s memory, rather than as going to H’s credit or reliability.  J was far from certain on the point; she said that H’s mother was in the kitchen “or something like that”, suggesting a certain level of vagueness; and by the time of trial she had no recall of that aspect.  She may also have confused something H had said to her; in her s 93A interview, H described hiding in the kitchen when the appellant masturbated on the occasion she was at his house.

[26] By the time of trial, H may well have conflated a more general complaint to J about her father’s conduct, made when she was in grade 8, with her disclosure of his masturbation to J in 2011 (conceivably after she spoke to Ms Butterworth).  That confusion was something which the jury could take into account, but it was not of great significance.  Similarly, the jury was entitled to regard H’s omission of the later parts of the events involved in the first incident (being made to watch the indecent video while the appellant masturbated) as oversight under the stress of cross-examination rather than as raising a doubt as to whether they had occurred at all.

[27] The points identified were not, in my view, so critical that they must individually or in combination have led the jury to reject H as credible and reliable.  It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt and to convict notwithstanding those matters, with this exception.  There was an aspect of unreasonableness in the outcome, in that the appellant was convicted on counts 1 and 4 of wilfully exposing H to an indecent film.  H’s evidence was that there was only one film shown to her, left running in the background, which she was made to watch when she was dragged out of her bedroom.  That evidence could not rationally support a conviction on two separate counts of exposing her to an indecent film.  The verdict on count 1 was unreasonable and should be quashed.

Failure to direct in accordance with s 21AW(2)

[28] Section 21AW(2) of the Evidence Act 1977 requires certain instructions to be given to the jury where measures identified in ss (1) of the provision are taken.  Those measures include the provision of a support person while the child gives evidence.  No instruction was given in respect of that measure here.  In R v BCL,[2] the President observed that a failure to comply with that mandatory requirement meant that the court could uphold a resulting conviction only if convinced that there had been no substantial miscarriage of justice;[3] that is, that the proviso in s 668E(1A) of the Criminal Code applied.  Counsel for the respondent here conceded that the court could not be so convinced.  This court has accepted that concession as correctly made, with the result that there must be a re-trial.  Having reached that conclusion, it is unnecessary to consider the remaining ground, as to the adequacy of the trial judge’s direction on the dangers of convicting on H’s evidence alone.

Orders

[29] The verdict of guilty on count 1 should be set aside and an acquittal entered on that count.  There should be a re-trial on the remaining counts.

[30] MUIR JA:  I agree that, for the reasons given by Holmes JA, the verdict of guilty on count 1 should be set aside and an acquittal should be entered on that count.  I agree also that there should be a re-trial on the remaining counts.

[31] NORTH J:  I have read the reasons of Holmes JA and agree, for the reasons given by her Honour, with the proposed orders.