R v Wells[2013] QCA 289

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  The appellant was convicted of one count of rape.  He appealed against that conviction on the grounds that the verdict was unreasonable; that the trial judge’s failure to give a direction on alleged lies caused a miscarriage of justice; and that the trial judge’s failure to direct the jury^[1] in respect of the presence of a support person when the complainant and another witness gave pre-recorded evidence similarly gave rise to a miscarriage of justice.  The respondent conceded that the appeal should succeed on the second and third grounds, resulting in a re-trial.  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 complainant’s evidence

2. The complainant, M, was 15 years old when she was interviewed by police in October 2009. She had disclosed to a police officer, whom she had encountered in the context of a family argument, that she had been raped about 18 months previously by an older man who was a friend of her father’s. In the interview which then took place she gave this account. The appellant had been a friend of her father, who died on 10 August 2007. M began by saying that before her father died, she had been staying with her younger sister at the appellant’s house. Her mother had gone home, but she remained with her sister to look after the appellant’s children.  (It was admitted that the appellant rented a house at the relevant address between 8 September 2006 and 19 July 2008.)  The appellant asked her to go downstairs for a smoke.  While she was sitting on a trampoline, he pushed her back and raped her.  He held his hand over her nose and mouth.  When he was finished he left, so M rang a friend of her mother’s who came to pick her up and took her to his house.  She was not sure when it had happened; she thought it might have been at the beginning of the previous year.  (The offence was charged as occurring “on a date unknown between 31 December 2007 and 1 January 2009”.)

3. In the course of the interview, M provided more detail of those events, and changed her account somewhat to say that she was staying at the house, not with her sister, but a friend, P; they were there for a sleepover and to look after the appellant’s two children. Two friends of the appellant and his girlfriend were also present during the evening.  Late that night, the appellant asked M to go downstairs to have a cigarette with him.  By that stage, the friends had left and the appellant’s girlfriend had gone to bed after an argument in which he had told her that he would no longer sleep in the same bed as her.  M’s friend, P, had also gone to bed.

4. M said that she was sitting on a trampoline talking to the appellant for about twenty minutes as he smoked a cigarette. Unexpectedly, he pushed her by her shoulders back on the trampoline. He asked her if anyone had ever “gone down” on her, to which she answered “No”. The appellant then put one hand over her mouth and squeezed her face, painfully. Meanwhile he pulled down her shorts and undid his own. He put his penis into her vagina; M thought that the penetration had continued for about five or 10 minutes.  She did not think he had ejaculated.  The appellant got up, refastened his shorts and left.

5. At this stage of the interview, M said that these events had occurred probably a year after her father died. Her mobile phone was in her bag under the house. She retrieved it and telephoned her mother’s friend, Steve, who collected her and took her to his house.  (He was someone whom she often rang when she had arguments with her mother, and she frequently took refuge at his house.)  After she had a shower, she disclosed to him what had happened.  Some time later, she told her mother and also told her boyfriend.

The complainant’s pre-recorded evidence

6. M gave pre-recorded evidence in May 2011. On this occasion, she said that after his girlfriend had gone to bed but while his two male friends were still present, the appellant had offered her and her friend, P, marijuana which they both smoked through a bong. Later, she smoked a cigarette downstairs with him and he told her that he did not want to sleep with his girlfriend any more, immediately before moving towards her and pushing her back.

7. Under cross-examination, M said she could not remember when she had told her mother about the rape, although she thought it was in the same year it happened. Her mother’s friend, Steve, who had picked her up and in whom she had confided, was present when she did so. Immediately before that disclosure, Steve had told M’s mother that there had been an incident with M and the appellant.

8. M said she had been mistaken when she told the police officer that her younger sister had been present on the night in question. She did recall an occasion when she, her sister and the appellant’s children had been playing with a trail bike. Her sister had burned herself on its muffler and the appellant had become upset and locked the bike away. But P was not there then; there was only one occasion when M had stayed overnight at the appellant’s house with P, and her sister was not present.

9. On the night of the rape, M thought that P had gone to bed close to midnight, and it was about 10 minutes later that she had gone downstairs. She and the appellant had talked for about 20 minutes while they smoked their cigarettes. When he pushed her back she was shocked, because there was no warning he was about to do so. He had not spoken to her at all after the incident. M had retrieved her mobile phone from her bag, which was underneath the house; she was not sure how it had got in there. She was certain that Steve had picked her up from the end of the appellant’s driveway. There was no occasion on which the appellant had told her she could not leave the house. She had not attempted to wake her friend, P, before leaving. She had texted her the following day; at that time P was leaving the appellant’s house. She had not telephoned her mother on the night of the rape.

P’s s 93A statement

10. P was interviewed in February 2010. She recalled going to the appellant’s house with M and M’s younger sister. The appellant had given her and M some rum and cola from a can to drink, and he and M were smoking marijuana. The appellant and a male friend went for a drive. P had smoked some marijuana with M when the appellant left, after which she and M sat for an extended period not talking. The appellant returned.  P became tired and went to bed.  When she awoke the next morning, M was lying on a mattress asleep.  She woke her; M smiled at her, and got up shortly after.  The appellant or his wife dropped them at M’s house.

11. P was asked what M had told her about being raped. She said that some time later, she thought perhaps in 2007, M had told her that on the night they stayed with the appellant, he had pinned her down on a trampoline. M looked very upset, and was whispering. P asked what had happened, but M did not want to talk about it or give any more detail. P also said that she had been telephoned some days prior to her interview by a police officer who informed her that M had been raped and asked her if she could remember anything about that time. She had been unable to do so, but then she started “remembering bits and pieces of it and stuff.”

12. Curiously, what P said next was excised, by agreement, from the tape and transcript provided to the jury. It was that the previous Monday (the interview took place on a Friday) she had telephoned M and said that the police had been in touch with her. She asked M if she had been raped; M replied that she was afraid P would not remember and that it had happened at the appellant’s house.  M then said that Steve picked her up from the appellant’s house and that she had returned later and gone to sleep; that was why P did not know about it.  After that conversation, P had started to remember “stuff”.

13. The appellant suggested that this court should take the excised material into account, but he was not clear as to precisely how. Had it been before the jury, it would be relevant to the reasonableness of the verdict, as giving a context for P’s recollection which might be said to affect its quality and also, possibly, as going to both M’s credit and her reliability. But in circumstances where the jury were not aware of it, it could hardly be taken into account in that way. In theory, it might go to the discretion as to whether to order a re-trial, but since M was never given an opportunity to respond to it, it could not be a very compelling factor against a re-trial order.

P’s pre-recorded evidence

14. P said in her evidence that she had stayed at the appellant’s place on only one night, which was after M’s father had died. She had not seen any argument that night between the appellant and his girlfriend. She recalled meeting only one other male at the house. It was M, not the appellant, who had offered P the bong. When M told her that the appellant had pinned her down on the trampoline, she had not gone on to say that she had been raped. P had gone to bed at about 3.00 am and woken in daylight.  M’s little sister was already up, playing.

Other evidence in the Crown case

15. M’s mother said that M and P had gone to the appellant’s house to stay overnight in 2009. Late that night, M had rung her saying that she wanted to go home because there were people at the house making noise and the appellant and his girlfriend had had an argument. She did not have a car and told M to ring Steve. Steve had brought M home the following day. At some later time, she noticed that M appeared upset. The girl told her that the appellant had pushed her back on a trampoline and that, although she had told him “no”, he would not stop.  She asked whether he “[went] all the way”, to which M said that he had.

16. In cross‑examination, M’s mother said, by reference to the address that they were living at when the incident occurred, that it must have happened in 2007.  She could not recall whether her younger daughter had gone with M to the appellant’s house.  She thought M had telephoned her between 11.00 pm and midnight.  Steve was not present when M disclosed to her that she had been raped, and he had never said anything to her on the topic.  She could recall that her younger daughter had burned her leg on the exhaust pipe of a motorbike at the appellant’s house, but she could not remember if it was on this occasion.  It was possible that she was wrong about Steve dropping M back the following day and that it was, in fact, the appellant and his girlfriend.

17. M’s boyfriend said that they had been together since mid 2009. A few months into their relationship, they had been looking at a list of guests at her father’s funeral on which the appellant’s name appeared. M was upset, and, after indicating that she did not want to talk about the matter, eventually told her boyfriend that the appellant had asked her to have a cigarette and raped her on a trampoline.

18. The mother’s friend, Steve, gave evidence. He said that on an evening in 2008, he thought around April, he had received a series of text messages from M. They started around midnight or 1.00 am.  M wanted to be picked up from where she was babysitting at her mother’s friend’s house.  (Steve identified it as the appellant’s house, although the latter’s name did not appear in his statement.)  Eventually, he rang her.  She said she was at the house with her friend, P, and pleaded with him to come and pick her up.  He said that he did not want to drive because he had been drinking alcohol.  Not long after, he rang her again in response to another text and she asked whether he had the money to pay for a taxi if she caught one to his house.  He responded that he did not.

19. At 6.30 or 7.00 am the following morning, M had telephoned him from a public telephone box (because her mobile phone battery was flat) and asked him to pick her up. He did so and took her back to his house. She seemed a little upset. Eventually, he had taken her home. Under cross-examination, Steve agreed that M had also texted him to the effect that the appellant would not let her leave. When he took her to his house, she did not say that she had been raped.  He was not present for any later conversation between M and her mother where she made that disclosure.

The defence case

20. The appellant gave evidence that M and P had slept over at his house. He had picked them and M’s younger sister up from their mother’s house in his car, in which his girlfriend and two children were already passengers. (It was a five seat vehicle, but not all the children were wearing seatbelts.) All of the children had ridden a mini-bike at the house and M’s younger sister had burned herself on its muffler. He was annoyed and locked the bike away. A male friend, Dale, was living with him and his girlfriend at the time. He and Dale were smoking marijuana, but they did not offer any to M and P, nor did he give them alcohol. He had been drinking bourbon.  All of the children slept in the front room of the house, while he slept with his girlfriend.  At no stage did he go downstairs with M, give her a cigarette or have any sexual contact with her.  He would not give M a cigarette.  The following morning, he woke at about 10.00 am and, with his girlfriend and children, drove M, P and M’s younger sister home.

21. In cross-examination, the appellant explained that the decision to take M and her younger sister to his house was a spontaneous one. He was visiting a neighbour and became aware that M was arguing with her brother. The best way of dealing with the upheaval was to accede to M’s request to be taken back to his house. He adopted a proposition put by the prosecutor, that he was not the sort of man to give a child a cigarette.

22. The appellant had been interviewed by police in December 2009, but the interview as a whole was not tendered in the Crown case. However, some passages were put to the appellant in cross-examination, leading to an accusation, which he denied, that he had told the police a different version of events and was lying when he gave his evidence. Those passages were then put into evidence on the basis that they contained statements by the appellant which he did not admit making and which were inconsistent with his evidence.

23. The relevant statements were, that M had come to the appellant’s house for only a few hours and had left before night-time (which he qualified later in the interview by saying that he was not sure, she could have stayed the night); that he might have given her a cigarette; that he thought a friend, Russ, might have been at his house that evening, and another called Darryl (although this seems to have been a mis-transcription of  “Dale”); that he did not recall how M got to his house; that he could not recall the details of what she had done at his house, other than playing with his children; and that he could not recall how M got home.

24. All of those were proper matters for cross-examination (although the prosecutor seems to have been mistaken about the existence of someone called Darryl). But I must say that I have considerable difficulty in understanding how the last three, as mere failures to recall, could have constituted statements inconsistent with the appellant’s testimony for the purposes of s 18 of the Evidence Act 1977, so as to permit them to be proved.  To say one does not remember something at a given date does not seem to me necessarily inconsistent with a later account of it.  However, what is significant for present purposes is that the prosecutor relied on those parts of the appellant’s interview to support a contention that his evidence was a fabrication and that he was a liar.

25. The appellant’s former girlfriend, Ms Harvey, also gave evidence in the defence case. She recalled a night on which M and her younger sister and a friend of M’s had stayed at her house. M’s little sister stayed quite often at the house because she was a friend of Ms Harvey’s daughter, but it might have been the first time that M had stayed there. Ms Harvey and the appellant, with their children, had picked them up from M’s house in the afternoon. On arrival back at her home, the visitors put their bags in her daughter’s room and then went downstairs to play on her son’s mini‑motorbike.  M’s little sister had burned her leg on the bike, which was then locked away.  The children played while she and the appellant and his friend, Dale, had a few drinks.  The appellant had been drinking beer and bourbon.  The men consumed some marijuana.  The children slept in the front room of the house, with the exception of her son, who slept on a mattress in her room.  She and the appellant shared a bed.  When she got up, everyone who had been there the previous evening was still in the house.  She and the appellant drove the three girls home.

26. Under cross-examination, Ms Harvey said that she recalled going to bed after midnight. She and the appellant had not had an argument, although he had been angry about M’s little sister falling off the motorbike.  She had drunk a considerable amount of beer, and conceded that she would not have known if the appellant got up or if he and M went downstairs.

The prosecutor’s address

27. The prosecutor, having put to the appellant that his evidence was a lie, submitted in similar vein to the jury:

“I have no hesitation in suggesting to you that the defendant is a liar and that the evidence he gave you in court yesterday was a recent fabrication designed to portray himself in the best possible light to you, the jury.  The evidence the defendant gave yesterday is completely inconsistent with the version of events that he gave to the police three years ago and he even goes so far as to claim that his memory has improved with the passage of time.  Well, that’s just a load of rubbish.

You may think his evidence could not be relied upon in any way.  Mr Polley described the defendant as ‘not the sharpest tool in the shed’, but it goes further than that, ladies and gentlemen.  Well, the defendant is a liar.”

The summing-up

28. The trial judge gave the conventional direction that the jury should disregard any part of a witness’ evidence that they took to be untrue or otherwise unreliable and should regard with caution the evidence of any witness whom they took to have deliberately mis-stated matters. His Honour also informed the jury in general terms that a witness’ inconsistent statement on a previous occasion could be taken into account in assessing the reliability of the witness’ evidence and that it was also open to accept the earlier statement as evidence of what actually happened. Turning to the appellant’s evidence and what he had said in the police interview, his Honour told the jury that they had to decide whether what was said on the earlier occasion was inconsistent, because that was relevant to the appellant’s credibility. He did not, however, give the jury any further direction on how to approach evidence which the prosecution had characterised as lies.

Unreasonable verdict

29. The appellant contended that the verdict was unreasonable because M’s evidence of what happened immediately after the rape was contradicted by the evidence of Steve, of her friend, P and of Ms Harvey, the effect of which was that she had not left the appellant’s house that night. Steve’s evidence further contradicted M’s account, in that he denied M told him she had been raped. To a lesser extent, M’s evidence also conflicted with the evidence of her mother, who said that M had telephoned her on the night in question. There was no medical evidence or evidence of telephone records which would support M’s account.

30. Secondly, the appellant submitted, it was implausible that the appellant would rape a girl on a trampoline at the house where his family, including his girlfriend, were sleeping. It was relevant that M had told P only that the appellant had pinned her down on the trampoline, which raised the possibility that something had happened on the trampoline short of rape.

31. Taking the last point first, I do not think that the fact that M’s account to P went no further than saying she had been pinned down on the trampoline really assists the appellant’s argument. The disclosure, on P’s evidence, was made in a context in which M was upset and hesitant to speak further. It amounts to a partial description of what M explained more fully to others, and certainly does not contradict anything she said elsewhere. At best for the appellant, it is neutral.

32. Nor is the implausibility argument compelling. Apart from the reality that risky sexual assaults are by no means uncommon in the matters which come before this court (often on pleas of guilty), the context in this case detracts from the force of the submission. On M’s evidence, the appellant had argued with his girlfriend and, by inference, ended his sexual relationship with her. He was under the disinhibiting effects of alcohol and cannabis; everyone else in the house had gone to bed; the episode was brief; and he had ensured that M could not cry out. In all those circumstances, an event of the kind M described was not inherently improbable.

33. But there were certainly features of the case which could give a jury pause. Of those, the most obvious is what on the preponderance of the evidence seems to be M’s wrong recall of being picked up from the appellant’s house that night.  There remains the puzzle of who was right about how she did leave the appellant’s house: Steve, who recalled collecting her from a phone booth early in the morning, or P, the appellant and his girlfriend, all of whom said that she had been driven home in the appellant’s car.  There was also M’s claim that she had revealed to Steve what happened.  It seems improbable that he could forget something so significant; the obvious conclusion is that M was wrong about that, too.

34. On the other hand, M gave a consistent and clear account of the events constituting the rape, which a jury could well find convincing. And if the mother’s and Steve’s recollection were correct, M was making attempts to leave the appellant’s house in the early hours of the morning, consistent with some upsetting event. A jury could accept that in the 18 months or so between the event and the interview, M had forgotten the detail of what she did after the rape; confusing her desire to leave the appellant’s house with having left. Steve was someone to whom she regularly turned when she was unhappy; it is possible she conflated this occasion with another. It is a finely balanced case, but on the whole, it is one in which, in my view, it was open to the jury to accept M as reliable in her account of the offence and to be satisfied beyond reasonable doubt of the appellant’s guilt.

The failure to direct on lies

35. The appellant submitted that, notwithstanding the absence of any application for a direction, the trial judge should have directed the jury on the use to be made of lies in accordance with either Edwards v The Queen^[2] or Zoneff v The Queen.^[3]  The way the prosecutor represented the matter to the jury was, it seems to me, closer to an allegation of the Edwards kind than a more general assertion of lies attracting a Zoneff direction.  The suggestion that the appellant had fabricated an account “to portray himself in the best possible light” was, effectively, a submission that he had lied because he could not innocently account for what had happened, not merely one that his credibility was impaired.

36. In any case, the trial judge should have required the prosecutor to make his position plain:^[4] to identify any lies which were said to be capable of indicating a consciousness of guilt (which could only have been the alleged lies about whether the appellant had offered M a cigarette and whether she had slept at his house that night).  If satisfied that they were so capable, it was then incumbent on his Honour to give the instructions identified in Edwards: to tell the jury that before using the lies as showing that the appellant was guilty, they had to be satisfied that he had deliberately lied about a matter concerned with the offence because he knew the truth would implicate him in it.  To the extent that the prosecutor relied on the lies only as going to credit, it was necessary to direct the jury that the mere fact of telling a lie was not evidence of guilt.

37. As it happened, the jury was left to consider the prosecutor’s submission without any adequate guidance as to how they should approach the specific divergences between what the appellant said in the interview and what he said in evidence. There is a very real risk that they acted on the prosecutor’s assertion that the appellant’s evidence at large was a fabrication and concluded, without further consideration or discrimination, that it demonstrated his guilt. In my view, a miscarriage of justice has resulted from the lack of direction as to the use of lies.

The failure to direct as to the support person measure

38. In view of that conclusion, it is unnecessary for me to deal at any length with the remaining ground of appeal. The failure to give the direction which s 21AW(2) of the Evidence Act required, concerning the presence of support persons when M and P gave evidence, was, on the authorities,^[5] an error.  This was not a case in which the court could conclude that no substantial miscarriage of justice had resulted from that error.

Order

39. The appellant should be re-tried on the count of rape.

40. MORRISON JA:  I have had the benefit of reading the reasons of Holmes JA.  I agree with those reasons subject to the following matter.  In paragraph [12] reference is made to the evidence of M (in a part excised by agreement from the tape and transcript provided to the jury).  That evidence was capable of being read as meaning that M had been picked up by Steve, and then returned later to the house where she had gone to sleep.  However, it can also be read as meaning that M had gone out to call Steve to be picked up and when that was unsuccessful she had returned to the house and gone to sleep.  Until tested it is not clear to me which is correct.  However, the alternate understanding does not change the outcome of this appeal.

41. I agree with the order proposed by Holmes JA.

42. HENRY J:  I agree with the reasons of Holmes JA and the order proposed.