R v PAQ[2014] QCA 11

SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE:  The appellant, who is the female complainant’s stepfather, was convicted of incest, and acquitted of rape and maintaining.  He appeals on the grounds that the conviction is unreasonable, and that the conviction is inconsistent with the acquittals.  (Counsel for the appellant informed us that the only basis urged for unreasonableness is the suggested inconsistency.)  The appellant was convicted in the District Court after a trial of short compass and duration.  For the incest, he was sentenced to four and a half year’s imprisonment.
2. The charge of maintaining related to the period September 2007 to December 2011, over which the complainant was aged 12 to 17 years.  The complainant gave evidence of regular and frequent sexual misconduct over that period, in which the appellant approached the complainant while she was in bed, digitally penetrated her vagina and tried to have sexual intercourse with her, from time to time succeeding.  This occurred most mornings, but not at weekends.  It happened when her mother was at work, and at various locations where the family lived from time to time:  RK at East Evelyn, BN near Mossman, and SA and SW in Gladstone.
3. The complainant’s father and the complainant’s two elder (twin) sisters gave evidence about living together with the appellant and the complainant over the relevant period at those locations, and of the employment in which the appellant and his wife engaged over that period.  This bore on the opportunity which would have been available for the appellant to act as he allegedly did.  As to whether the complainant’s sisters would have been aware of what was going on, the complainant’s evidence was that they were sleeping at the relevant times.
4. The complainant did not confide in her sisters because notwithstanding the closeness of their relationship, the complainant said that she would not have been comfortable sharing such personal matters.  The complainant said that her mother had asked her three or four times, after she turned 12, as to whether anything was going on with the appellant, and that she said no.  The complainant explained that on the basis that she was “too scared no one would believe (her)”.  The complainant did however reveal the abuse to her fiancé in a text message in December 2011, following an earlier denial in response to a question from him, and that led in the end to her reporting the matter to the police.  On the evidence of her fiancé, she was in doing so influenced by her fiancé.
5. The disclosure to the complainant’s fiancé occurred at about the time of the alleged rape in December 2011, of which the appellant was acquitted.  At Calliope Caravan Park, the then 16 to 17 year old complainant fell asleep on a mattress on the floor of the caravan in which they were staying.  The appellant and her mother usually slept there.  The complainant awoke to the sound of someone getting on to the mattress.  Half asleep, the complainant initially thought that it was her fiancé, but waking up realized that it was the appellant “fingering me” and then attempting penile intercourse until the complainant moved away and the appellant got up and returned to a bed.
6. It was before this incident that the complainant disclosed the abuse to her fiancé and asked for help, by text message, and spoke to her fiancé by telephone outside the caravan after the incident.  Insofar as it is relevant, there was no direct evidence of express lack of consent in relation to this incident.  It fell to the prosecution to establish lack of consent:  Criminal Code 1899 (Qld), s 349.  Perhaps most clearly, the complainant’s attitude in that regard may be drawn from her sending a text to her fiancé immediately after the event asking him to help her.  But the complainant was not asked directly in evidence in chief about the issue of consent.  The prosecution did not rely on the complainant’s having been asleep or half-asleep.  On this state of the evidence, a conviction for rape would have been unjustified and unsustainable.
7. The count of incest, on which the appellant was convicted, concerned an event which occurred when the complainant was 16 years old, some seven or eight months prior to the alleged rape.  It occurred at SW in April or May 2011.  The family was preparing to relocate.  The complainant’s evidence was that she and one of her sisters, who was pregnant at the time, and the appellant, were drinking beer provided by the appellant.  The complainant was drinking quickly, became sick and vomited.  She had a shower, and in the course of that the appellant approached her and started to remove his shorts.  She told him to get out of the bathroom.  The complainant then lay on a mattress.  At her request, the appellant brought her a sandwich and some water.  She again vomited.  Then the appellant digitally penetrated her vagina, and proceeded to have penile intercourse with her.  The complainant said in her evidence:  “I was very drunk and I let him.”  The appellant desisted when the telephone rang.
8. The complainant’s sister, in her evidence, denied having been drinking on this occasion, which Counsel for the appellant presented as a telling contradiction of a “significant feature of (the complainant’s) recitation of this event”.  Counsel for the respondent drew attention in response to the witness’s apparent expectation of the question asked at the end of cross-examination by the appellant’s Counsel, and her apparent eagerness to rebut the suggestion:  “You certainly weren’t drinking when you were pregnant, were you?” to which she replied:  “No.  I was waiting for you to ask that question.”
9. There were conflicts between the evidence given by the complainant and the evidence of the complainant’s sisters in certain areas, such as sleeping arrangements and as to the quality of their relationship.  There was some inconsistency between the complainant’s statement to the police, and her evidence as to her sisters’ being at BN while the alleged offending took place.  Also, the complainant did not refer to the incident of incest in her first statement to the police, and in relation to that incident, said in her second statement that sexual intercourse had taken place in the bathtub – which cross-examining Counsel put to her would have been impossible, having regard to the size of the bath and the stature of the appellant and the complainant.  In her oral evidence, the complainant denied that intercourse occurred in the bathtub.  None of these discrepancies militated or necessarily strongly favoured the overall rejection of the complainant’s evidence.  Notwithstanding their relevance to the assessment of credibility, the jury were nevertheless entitled to accept the complainant’s evidence that the particular events occurred.
10. Counsel for the respondent submitted that the acquittal on the count of maintaining is likely explained by the generality of the complainant’s evidence on that count.  I accept that submission.  The complainant’s evidence, while clear that the persistent offending occurred, lacked particularity.  In her evidence in chief, for example, while saying that the appellant inserted his penis into her vagina at RK, she added:  “I honestly don’t remember it.  I’ve tried blocking it out.”  Then, again in examination in chief, when asked how often the appellant succeeded in having sex with her at SA, she said once or twice a week “maybe”.  Unsurprisingly, in cross-examination, defence counsel revisited this lack of particularity and tentativeness.  Under cross-examination, the complainant confirmed that she could not remember any specific occasion on which the appellant inappropriately touched her at KR, and that she could not give details of the first occasion it happened (because, she said, she was too young and had “blocked it all out”), that she could not give times, dates and days, that she “vaguely” remembered sexual intercourse at KR, but did not recall the first such occasion.  She also confirmed, in cross-examination, that she could not give details of the first or last occasions on which the appellant inappropriately touched her either at SA or SW.  She could not remember specific occasions (apart from the occasion of incest in April or May 2011).
11. It emerges from a reading of the evidence that the complainant’s inability to give a particularized account in relation to the count of maintaining was a matter of emphasis.  Certainly the complainant sought to explain that, by reference to her age, and it is true that she nevertheless stood by her allegations of regular and frequent misconduct which followed a particular pattern.  But notwithstanding the jury was satisfied the complainant was an honest witness, they may well have baulked at convicting the appellant of maintaining, having regard to the standard of proof beyond reasonable doubt, in light of that level of generality, and I consider that if they otherwise believed the complainant, that provides the likely explanation for the acquittal on that count of maintaining.
12. The evidence on the counts of incest (April/May 2011) and rape (December 2011) was considerably more detailed, as to time, place, surrounding details, and other distinguishing aspects of the occasions, for example as to the incest, that the family was on the verge of relocating, and as to the rape, that the complainant was in the course of making her first, text-based, disclosure of the misconduct to her fiancé in the context of some apparent pressure from him.  The complainant was apparently able to give a comprehensive account of each of those incidents, by way of contrast with her acknowledgement, on a number of occasions in her evidence, that she could not provide details (times etc) of the incidents involved in the maintaining, which she said she had “blocked out”.  The incest was presented differently, defence counsel for example referring to it in a question of the complainant as a “specific incident” which the complainant alleged occurred just before they moved out.
13. Notwithstanding the various discrepancies to which I referred earlier, and allowing for the jury’s entitlement to doubt the complainant’s sisters denial of the drinking while pregnant because of the manner in which she gave that evidence, I consider that the jury acting reasonably was entitled to accept the complainant’s evidence on the count of incest and convict the appellant of that alleged offence.
14. In reaching that conclusion, I have also considered that there is a rational basis on which the jury could nevertheless have acquitted the appellant on the count of rape while accepting the honesty of the complainant’s account generally.  The test was explained in Mackenzie v The Queen (1996) 190 CLR 348, 365-8, emphasizing the appellate court’s fundamental respect for the verdict of a jury and the court’s reluctance to substitute its own contrary opinion on the facts where there is an available rational explanation for disparate verdicts.  See also R v Smillie (2002) 134 A Crim R 100 and R v WAC [2008] QCA 151.
15. While Counsel for the respondent suggested in his written outline that the acquittal of the rape may simply enough have amounted to a “merciful verdict”, I prefer to determine the present outcome by reference to the evidence, and I accept the strength of Counsel’s alternative submission that “the jury may have logically doubted the critical element of lack of consent, where the complainant was said to have acquiesced to similar activity on an earlier occasion” – that is, in relation to the incest in April/May 2011, seven or eight months earlier, of which the jury convicted him.  In addition, as mentioned earlier, the evidence of lack of consent in relation to the December incident was at best sparse.
16. Counsel for the appellant was correct in saying that “the prosecution case rested entirely on the complainant’s credibility and reliability in relation to each charge”.  But I do not accept his following submission, that the jury’s acquittal on the counts of maintaining and rape signalled the jury’s view that the complainant was an “unreliable witness generally”.  The jury were entitled, acting reasonably, to accept the honesty of the complainant’s account, but having to regard to the standard of proof, to question its reliability and regard it as inadequate to establish the counts of maintaining and rape, while convicting of incest.  The statement, “I was very drunk and I let him”, while on one view arguably disclosing a basis for questioning reliability, involved a level of candour which the jury may very well have regarded as compelling even disarming.  It was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant was guilty of incest (M v The Queen (1994) 181 CLR 487, 493).
17. I would order that the appeal be dismissed.

18. FRASER JA:  I agree with the reasons for judgment of the Chief Justice and the order proposed by his Honour.

19. GOTTERSON JA:  I agree with the order proposed by the Chief Justice and with the reasons given by his Honour.