R v Horvath[2014] QCA 273

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  The appellant was convicted by a jury of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years.  (The offences were particularised as occurring at various times in 2009, before and after the complainant turned twelve on 26 August 2009.)  He appealed his conviction on the ground that the verdicts were unreasonable, contending that the complainant’s evidence was internally inconsistent and was also inconsistent with the complaints she had made to others, so that the jury could not properly have been satisfied of her honesty and reliability.

The complainant’s 2009 statements about the offences

2. The complainant, B, was the daughter of friends of the appellant. He occasionally looked after her when her parents were working, and sometimes when her parents engaged in an altercation (as they seem fairly frequently to have done) came to their Nerang house to intervene. On some occasions when her parents fought, B went to stay with the family of her school friend, J.  B’s twelfth birthday was such an instance.  That evening, B contacted J’s family and made arrangements for them to pick her up from a service station.  The appellant took her to the service station and waited with her until the arrival of J and her mother.

3. J’s mother gave evidence that that evening at their home, B, who was upset and crying, confided in her that the appellant had been touching her breasts and “down there”, indicating the area of her vagina. The girl said that he had also made her watch pornography on his laptop and “talked dirty” to her. That day, when she had gone with the appellant to a shop, he had touched her “on the boob”. She did not say anything else had happened on that occasion.

4. On the following day, J’s mother took B to a police station. In the interview which then took place, B said that the appellant touched her “round here” (indicating her chest area) and “down there”, indicating the lower half of her body. The previous day he had taken her to Woolworths and other supermarkets to buy treats for her birthday party.  While driving there, the appellant had touched her chest area; that was, she said, “all he did”.  She gave more detail: he had touched her through her clothes for about five seconds and said, “Well, your boobs have grown”.  Asked if anything had happened after that, she said that they kept on driving.  That incident was the subject of count 4 on the indictment on which the appellant went to trial, a charge of indecent treatment on 26 August 2009.  B said that after she and the appellant had been shopping for about 30 minutes, her father had telephoned and said that they should come home quickly because something had happened to her mother.  They returned to her house to see her mother with some injuries, which B believed her father had inflicted.

5. B was asked in the interview if the appellant had ever touched her previously. She said that in the Easter school holidays at her Nerang home he had touched her “boobies and down there as well”, although she could not “really remember”. In the same holidays there was an occasion when the appellant was looking after her at his home in Brisbane while her parents worked.  His own children and his neighbour’s children were playing outside.  B was in the lounge room playing Wii games with the appellant.  When she sat down, he sat next to her and touched her “boob” and “down there” inside and outside her underwear.  As to the latter, she said that he touched her vagina; he put his finger into her underpants and “played with it”.  When she told him to stop, he desisted.  That account formed the basis of count 1 on the indictment on which the appellant was tried, indecent treatment on a date unknown between 31 March 2009 and 1 May 2009.

6. Asked about other occasions, B said that sometimes the appellant had touched her “on the boobs”. He had tried to show her pornography; she thought that had happened about ten times. When she was asked for more detail of how that occurred, she said that the appellant went on pornographic websites, which she saw when she went to use his laptop. She immediately shut them down and opened the program she wanted to use to message her friends. Having described those circumstances and the incidents of being touched on the chest and genitals, B was asked whether the appellant did “anything else” to her; she answered “No.”

7. B’s friend, J, was also interviewed on 27 August 2009. She said that in May that year, B had told her that a friend of her father’s touched her “around her breasts and down below”.  He had made her take her clothes off in order to touch her and had made her watch pornography on the internet.  If she did not do so, he hit her.

8. On 6 November 2009, B was examined by a medical practitioner in relation to the allegations. The doctor gave evidence of the history she had taken from the girl. B said that she had been repeatedly touched on her breasts and in the genital region, including digital penetration of her vagina, over the last twelve months.  The last incident had occurred on her birthday in 2009, when the appellant had touched her on the breasts.  The medical practitioner confirmed that B made no reference to the appellant’s making her touch his penis.  She undertook a physical examination of B which revealed nothing out of the ordinary in her sexual organs; but that did not, the doctor pointed out, preclude digital penetration.

The complainant’s 2011 statements about the offences

9. The appellant was charged with, committed for trial and indicted on the two charges which later became counts 1 and 4.  However, on 25 August 2011, B was interviewed by a prosecutor who took notes of their conference, the contents of which were admitted.  B was asked first where the incident of the appellant’s touching her on her breast on or around her birthday occurred, and said that it had happened in the car park of the Nerang Police Citizens Youth Club.  She added the detail that after the appellant touched her breast, he made her touch “down there”, answering in the affirmative when the prosecutor asked if she meant the appellant’s penis.  The appellant grabbed her hand and kept pulling it down to his penis, while she tried to resist.  The prosecutor asked if the appellant’s penis was out of his pants, and B answered “yes”.  She thought that the incident had continued for five to ten minutes.  It ended when, after repeated requests, the appellant took her home.  Asked when the incident had happened, she said that she was “pretty sure” it was in the Easter holidays.  That allegation was the subject of count 5, indecent treatment on 26 August 2009, on an indictment which replaced that originally presented.

10. The prosecutor asked B if the appellant had shown her pornography. She could recall that occurring twice, once at the appellant’s house and once at her house. On those occasions the appellant called her over to look at the computer, grabbed her hand, and touched her on the breast and “down there”.  He also tried to make her touch his penis by grabbing her hand, but she kept pulling her hand away.  She believed it occurred during the Easter holidays.  The appellant had never threatened her in order to make her watch pornography, nor had he hit her.

11. As a result of her statements to the prosecutor, B was interviewed again by police on 29 November 2011. She was asked whether she had remembered any other things since her first statement to police and said she had not. She had, however, told a friend, X, whom she had met the preceding year at school, about what had happened to her; that included that the appellant had “felt [her] up” at both his house and hers. B was questioned about when the incidents had happened at her house and said that it was in the Easter holidays and on her birthday. Asked how many times “it” had happened at her house, she was unsure, but could say that it had happened more than once. The first time she was sleeping on the couch and she could not really recall what the appellant had done, but it was something; she thought he might have been trying to touch her but she could not recall where on her body or when this had occurred.

12. Asked about the last incident which had happened at the Nerang house, she said that the appellant had made her watch pornography several times and had made her touch his “area”, which she confirmed was his penis. She had pushed him away, but he kept forcing her “to do it”. However, she answered “I can’t remember” to a question as to whether she could remember any specific time that she had been made to touch the appellant’s penis.  The police officer, inaccurately, asserted “But you said it happened a number of times”, to which B nodded.  He asked B where she was when she was made to watch pornography, and she responded that she was in the lounge.  Her parents were at work.

13. Although B had thus far been answering questions about circumstances in which she was generally made to watch pornography, the police officer commenced a series of more specific questions as though B had identified a particular event.  He asked at what time of day it had occurred, whether it was daylight or night, and what had happened.  B said that it was daylight, and that she thought that the appellant had called her over, sat her down and made her watch pornography on his laptop computer.

14. In a remarkably leading question, the police officer continued,

“[POLICE OFFICER]: Yep. Okay.  So, um, so he made you watch the porn and then he also made you touch him on his penis? Okay. Now how did you touch him on the penis, like, um, for example, um, was there clothes on or not ho-, how did actually [sic] happen?

[B]:He pulled his pants down and then he grabbed my hand.

Again inaccurately, the police officer said,

“And you said before that you tried to pull away?”

B responded,

“Yeah I tried to like push him and pull away from him.”

15. Further questioning elicited more detail; B said that she was in front of the television, sitting on a wooden chair, while the appellant was standing. When she had touched him on his penis he began to masturbate. B then said that the appellant had sat on a chair after pulling his pants down. He masturbated until he ejaculated on her legs and then fetched a bathroom towel to wipe her legs off. That account gave rise to count 2, indecent treatment on a date unknown between 31 March 2009 and 26 August 2009.

16. B was asked whether on this occasion the appellant had touched her anywhere, and volunteered that she thought he had touched her breasts; but she agreed that she could not recall. She was asked more questions about the pornography she had watched on the appellant’s laptop. She said she did not know what she had seen. When she was asked whether it involved males or females, she said that it was both. She was unsure as to how long she had seen it for. This occasion was the first time B had seen or touched the appellant’s penis. She was in Grade 7; she thought this had happened in the middle of the year.  B was then asked if there were any other times she had touched the appellant’s penis.  She said that on her birthday when she and the appellant went to the shops he had stopped the car and made her “do it again”.  That evidence was relied on in support of count 5.

17. The police officer asked B whether there were any other times that “it” happened at the Holland Park house.  B said that there was an occasion when she was sleeping in her bedroom and the appellant put his hand down her pants.  She kicked him and he went away.  B said that she had told her friend J about the encounter, which had occurred at about the same time as the incident the subject of count 2.  She was asked how she knew that the person was the appellant; she said that she could not see anything, but she heard his voice, although she did not know what he had said to her.  The appellant had entered her room, “moved [her] a bit”, which she described as rolling her over so that she was on her back, and put his hand down her pants.  The police officer asked her where he had touched her and she answered that it was her “private area”, which was what she called her vagina.

18. The interviewing officer asked further questions on the topic, which were, with B’s answers, as follows:

“Now did he put his hand down?”

He started to but then I kicked him.

…

“And he started to touch you on your vagina?

Yep. And then I just kicked him.”

Asked later if anything was said at all during the incident, B said she did not know.  That allegation was the subject of count 3 on the indictment, indecent treatment on a date unknown between 31 March 2009 and 26 August 2009.

19. In February 2012, B’s friend Y was interviewed about what B had told her. She said that when the girls were in Grade 8 (2010), B had said that her father’s friend had molested her the previous year. On the first such occasion he was “feeling her up” while she slept on the lounge. He had made B touch his penis and watch pornography with him, and had “fingered” her. In 2011, B had told Y that the man had “licked her out”.

The complainant’s 2012 evidence

20. In March 2012, B gave evidence at a pre-recorded hearing. She was asked about the incident on her birthday when the appellant stopped his vehicle and made her touch his penis. She said that he had grabbed her hand and put it down his pants, inside his underwear; she was not sure how long for. Asked for detail, she said, “He made me touch his testicles for, like, five seconds”.  Under cross-examination B confirmed that this incident happened on the way home from the shops, notwithstanding the need to respond to her father’s telephone call.  She agreed that this was the first time she had mentioned touching the appellant’s testicles; it was something, she agreed, that she had only remembered on the day of the hearing.  It was put to her that she had previously said that the appellant’s penis was out of his pants, not that her hand was down his underwear and that she had told the prosecutor the incident went for five or ten minutes.  She agreed that she did not really have a very good memory of the event.

21. It was pointed out to B that when she spoke to the prosecutor she said that the touching of the breast had happened in the car park of the Police Citizens Youth Club, at the same time as the touching of the appellant’s genitals, whereas she originally told the police it had occurred as they were driving to the shops from her home.  Her explanation was that it had happened twice.

22. B was asked about the incident in which the appellant came into her bedroom. She was asked whether he had actually touched her vagina and responded, “No, he didn’t, but he was going to”.  He had touched her stomach only.

23. In re-examination B said that she had not told the police officer who first interviewed her about things which she had later revealed to the prosecutor and the officer who undertook her second interview, because she was “worried and scared”. She had not said anything to J or J’s mother about touching the appellant’s penis in the car, the incident in which he made her touch his penis before masturbating or the touching of her in her bedroom because it was “too personal”.

The defence case

24. The appellant did not give evidence, although it was established through cross-examination of a police officer that he was interviewed and had denied the allegations.  He had said that on B’s birthday in 2009, he and she had travelled straight home from the shops after receiving a phone call.  One witness was called in the appellant’s case: his adult daughter.  She said that in 2009, B often rang the appellant because her parents were fighting.  She believed that B had come to their house three or four times in 2009 and she had stayed with them over her June – July school holidays.  There was no indication that B felt at all awkward in the appellant’s presence.  The appellant’s house was an open one and there were often children there.  One of her nieces usually spent the school holidays at the appellant’s house and was generally to be found watching television in the living room because she disliked outside activities.

The appellant’s submissions

25. The appellant submitted that B’s evidence contained such inconsistencies that a jury could not properly have convicted him of any of the counts. Her first explanation of the circumstances in which she came to watch pornography essentially indicated that her viewing of it was inadvertent; the result of the appellant’s having left the relevant website open when she came to use his computer. Her next account (to the prosecutor) was that she could recall twice being made to view pornography and that on those occasions she had been touched on the breast and vagina and there was an attempt to make her touch the appellant’s penis. In the third version, she said that she had been made to watch pornography several times but initially was unable to provide any detail before giving the account of being made to touch the appellant’s penis and his masturbating.

26. Although B had explained the difference between her accounts as the result of being confused and scared, if the later statements were true, she had deliberately lied in her first interview, providing a detailed (and untrue) description of how she inadvertently came to see pornography. Those circumstances would give rise to doubt in relation to count 2 and more generally.

27. B’s allegation, made for the first time in cross-examination, that there were two separate incidents in which her breasts were touched on her birthday was not credible. It could not be explained by embarrassment or reticence. She had disclosed one such event without mention of any other on a number of occasions: when first interviewed, on conferring with the prosecutor and on a second interview with the police. Nor was her statement in the 2011 interview that the appellant had come into her room, put his hand down her pants and touched her vagina consistent with her response in cross-examination that he had touched her stomach and “was going to” touch her vagina.

28. The description of the touching involved in count 1, which was said to have occurred at the appellant’s house, when his children and his neighbour’s children were playing outside was, it was submitted, improbable. More generally, there were inconsistencies between B’s account and the complaint evidence from other witnesses: that she had said she would be hit if she did not watch pornography (which she had denied in cross-examination), that the appellant had taken her clothes off and that he had performed oral sex on her (to neither of which B had alluded in any statement or evidence).

29. The jury could not have been satisfied beyond a reasonable doubt of B’s honesty and reliability.

The respondent’s submissions

30. The respondent submitted that it was open to the jury to accept B’s explanations that she was “worried and scared” when she spoke to the first male police officer. She might have thought that revealing she had put her hand on the appellant’s penis would be regarded as wrong-doing by her, rather than sexual abuse. She might also have thought there was no point in describing more than one touching of her breasts. It was clear from the first interview that there were other occasions on which sexual abuse had occurred. B’s description of inadvertent viewing of pornographic websites could reasonably be regarded as cumulative on other occasions when the appellant had made her watch pornography, including the particular occasion where he had made her touch his penis and masturbated.

31. B’s evidence on count 3 was, read as a whole, consistent: B had told the police officer, in effect, that the appellant put his hands down her pants and that her actions of kicking out at him prevented him from actually touching her on the vaginal area. That was consistent with her evidence that he had got no further than touching her stomach.

32. The difference between the complaint witnesses’ memories of their conversations with B and her account of the events was explicable having regard to a number of features, including B’s distress when she was speaking to J’s mother, the fact that the complaint witnesses were having to recall a conversation some time in the past without any record of it; and that a complaint witness was likely to be giving his or her perception of the conversation’s meaning rather than the actual words used.

Conclusions

33. I have watched the DVD recordings of B’s interviews with police officers and of her evidence. In my view, the description of events in B’s 2009 interview can reasonably be accepted as reliable. The events being described were recent; about four months previously in relation to the indecent treatment the subject of count 1 (the touching of her vaginal area), and the previous day for the indecent treatment the subject of count 4 (the touching of her chest). The fact that the indecent treatment the subject of count 1 occurred, according to B, in an environment where the appellant’s own children and others were about does not weigh heavily against acceptance of her evidence. The event as described was relatively brief and took place inside the house while the other children were occupied in playing outside; there was nothing inherently implausible about its occurring in that way.

34. B’s complaint to the doctor who examined her in November 2009, of being touched on her breasts and having her vagina digitally penetrated, was consistent with the complaints which she originally made, including those founding both counts 1 and 4; as was J’s statement that in May 2009 B had told her of being touched around her breasts and “down below”.  The additional details J volunteered, of B’s being hit and made to remove her clothes might have been either girl’s dramatisation; if it were B’s, it was possibly an attempt to explain her passivity in response to the assaults.  However that may be, I do not think those elaborations, if attributable to B, have any real bearing on the reliability of the complaints she made on 26 and 27 August 2009.

35. B’s 2011 statements, however, are, in my view, in a different category, given the way they emerged and their inconsistency with earlier and later statements. The statement to the prosecutor in 2011 that the appellant had touched her breast in a car park on the way home from shopping clearly differed from her contemporaneous statement that the incident had occurred while they were driving there, and was inconsistent with her account of a hurried return home after her father’s telephone call. That might not be of much moment had she not sought under cross-examination in March 2012 to explain the difference by saying, for the first time, that there had been two such touchings in the same trip. Looking at the video, B’s response looks very much like an attempt to deflect the pressure of questioning.

36. But it made little sense for B to have described only one of two such events to J’s mother on the day they happened, or to the police officer on the following day. Nor could one be confident of the added detail provided to the prosecutor in conference, that in the car park incident the appellant had made her touch his penis, which was out of his pants. Although this was an incident supposed to have happened on her birthday, she went on to place it, when questioned further, in the Easter holidays. In giving evidence of what was supposed to be the same event, she described it differently, saying that her hand had been put inside the appellant’s underwear and that she was made to touch his testicles. Also of concern is the fact that nothing of the kind was mentioned to J’s mother or the police to whom the touching on the chest incident was described.

37. Although the respondent suggested that B might have been perturbed in speaking to the police officer because she had taken what might be regarded as the active step of putting her hand on the appellant’s penis, B did not herself suggest any thinking along those lines. Given that she was prepared to confide in J’s mother that the appellant had touched her vaginal area, it does not seem that she was hesitant in talking about embarrassing matters to her at least. If, indeed, she had been made to touch the appellant’s penis the previous day, in addition to being touched on the breast, it seems highly probable that she would have disclosed that also. While something of the kind might well have happened to B, one could have no confidence that it occurred on the occasion of her birthday, as the Crown had particularised the count.

38. B’s evidence in relation to count 2, of having been made to touch the appellant’s penis before he masturbated, is similarly open to question for a number of reasons. It was said to have happened after she had been made to watch pornography, but the evidence as to how often and in what circumstances that had occurred was, at best, variable. And it was premised by a statement that she could not remember any specific time she had been made to touch the appellant’s penis.  It came in the context of unsatisfactory questioning by the police officer, and one gains the sense from watching the interview that B felt obliged to provide detail in response to that questioning.  In the same interview, she described the appellant’s putting his hand down her pants and her kicking him.  Contrary to the respondent’s suggestion that B’s evidence that the appellant had merely touched her abdomen with further intent was consistent with what she had said in the interview, it contained repeated statements by B that she had been touched “on” her vagina before kicking the appellant.

39. I do not consider that B’s later complaints can be regarded as reliable. That does not mean she should be regarded as dishonest. My firm impression is that when pressed in interviews and cross-examination, she felt compelled to give answers on matters on which she no longer had any very clear recall because of the lapse of time, with resulting confusion. In some instances she may have been describing events which had happened, but not in the circumstances particularised. But I am left with a doubt about her reliability on counts 2, 3 and 5 as charged. Accordingly, I would allow the appeal to the extent of setting aside the convictions on those counts and entering verdicts of acquittal.

40. That conclusion means that the appellant ought to be re-sentenced on counts 1 and 4, having originally been sentenced to 21 months and 15 months imprisonment (all of which he had already served) respectively on those counts; for that purpose counsel should provide brief submissions identifying any decision said to involve sentencing in comparable matters.  The respondent should also provide a pre-sentence custody certificate.  Those submissions and certificate should be provided within 14 days of this judgment.

41. MORRISON JA:  I have had the considerable advantage of reading the draft reasons of Holmes JA.  I agree with much of what her Honour has written, and I agree with her conclusions in respect of counts 1 and 4.

42. However, I have come to a different conclusion with respect to counts 2, 3 and 5, and therefore need to set out my reasons for reaching that conclusion.

Summary of counts 2, 3 and 5

43. The circumstances of counts 2, 3 and 5, as recounted in the pre-recorded evidence of the complainant (B), can be summarised as follows:

count 2 - B was with the appellant at B’s home; the appellant called B over and made her watch porn on his laptop; he grabbed her hand and forced her to touch his penis; he obtained a towel, then pulled his pants down and masturbated; he ejaculated onto B’s leg, then wiped it off with the towel;

count 3 - also at B’s home; one night when she was asleep in her room the appellant came in, and moved her enough that she rolled onto her back; he then put his hand down her pants in an attempt to touch her vaginal area; in fact he only touched her stomach; she kicked at him and he left; and

count 5 - on B’s birthday; the appellant had driven B to Woolworths and some other shops to get supplies for her birthday; on the way back home he stopped at a PCYC park where he grabbed her hand and put it down his pants, forcing her to touch his penis and testicles.

44. The summaries above do not reflect the conflicting parts of B’s evidence in relation to these events, much of which was relied on by the appellant.  I shall deal with those aspects shortly.

Basis of the appeal and legal principles

45. The ground relied upon is that the verdicts were unreasonable and cannot be supported having regard to the evidence.

46. The applicable principles to the approach on an appeal of this kind were stated in M v The Queen:^[1]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

and

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

47. More recently the High Court said, in SKA v The Queen:^[2]

“[B]y applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality.’”

and the appellate court:

“…was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged.”

Discussion – count 2

48. There are a number of conflicting issues that apply to B’s evidence in this count.  First, when B was first interviewed in 2009 she made no mention of this episode.  Indeed she indicated that what she said on that occasion (consistent with counts 1 and 4) was all there was.^[3]  Secondly, her initial description of seeing porn on the appellant’s laptop was that he used the laptop to log onto the TAB, then porn sites, and then when she came to use the laptop she would close down those sites as quickly as possible so she could use the MSN website to talk to her friends.^[4]  Thirdly, arguably B did not refer to it in her interview with the police prosecutor on 25 August 2011.  Fourthly, B did not tell her close friends (J), J’s parents, or her own parents about this matter.  Fifthly, there was some inconsistency between what B’s friend, J, said about what she’d been told by B, as to the watching of porn, and what B said.  According to J, she was told that the appellant made B watch porn “and he makes her sit there otherwise he hits her”.^[5]  B denied any suggestion of threats or being hit.^[6]

49. However there were aspects of the account of this offence that were mentioned in B’s first interview.  B said that “he makes me look at all that porn stuff”.^[7]  Further, that she had seen porn on his computer a number of times, “like …ten times may be I’m not sure”.^[8]

50. Some of the circumstances of count 2 were first mentioned on 25 August 2011 when the prosecutor questioned B.  As to the porn, B said that the appellant “would call her over [when porn was on the computer] and the same thing would happen”.^[9]  The “same thing” was said to be that the appellant would grab B’s hand, touch her on the breast and “down there”, and he “tried to get her to touch his penis by grabbing her hand like the other times but she kept pulling away”.^[10]

51. The full account of the circumstances of count 2 only came out at an interview on 29 November 2011, which was prompted by the interview with the prosecutor.

52. The manner of some of the questioning has been referred to by Holmes JA as “remarkably leading”.^[11]  With respect I cannot agree with that description.  B started by referring to what she had told her friends about when the appellant “molested me” and “he felt me up”^[12].  It was the fact that B had been “molested” that B referred to when she answered questions as to whether “it” happened more than once.^[13]  Further, it was being “molested” that B referred to when she gave her account of the “first time it happened at your home”.^[14]

53. It was the fact that the appellant “molested” B that she referred to in a series of questions on the topic of “the last time it happened at [B’s] house”.^[15]  This was the commencement of B’s description of the events of count 2.

54. B gave these details:

1. B was asked an open question: “Okay, so what’s happened then?”, to which she answered that the appellant “made me watch, um, porn several times and he just made me touch his area”; she identified “his area” as his penis;^[16]

2. “I kept pushing him away but he just kept forcing me to do it”;^[17]

3. she was in the lounge when he made her watch porn;^[18] and

4. “I think he just called me over and then he sat me down and then put it up^[19] and then he just made me keep watching it”; referring to the porn which was on his laptop.^[20]

55. It was at this point that the exchange occurred that is set out in paragraph [14] of the reasons of Holmes JA.  In light of the question and answers above, that question was not leading.  To the contrary it reflected the statements already given by B.

56. B went on:

1. “He pulled his pants down and then he grabbed my hand”;^[21] and

2. “I tried to like push him and pull away from him”, but “He just kept forcing me to do it”.^[22]

57. In light of those statements the question, “And you said before that you tried to pull away”,^[23] may have been slightly inaccurate but in the circumstances any inaccuracy was inconsequential.

58. In the circumstances I respectfully do not agree that B’s evidence in respect of count 2 came in the context of unsatisfactory questioning by the police officer.^[24]

59. Holmes JA has referred to the fact that B’s recounting was “premised by a statement that she could not remember any specific time she had been made to touch the appellant’s penis”.^[25]  Whilst that is strictly true that answer has to be seen in the light of the lead up to B’s recounting these events:^[26]

1. when the interviewer asked B to tell about “the last time it happened at [B’s] house”, she responded “Like the times he did it or?”;

2. the interviewer then said to talk about “what actually happened on the occasion and when that happened”:

3. B said she could not “really remember when it happened”;

4. the interviewer then said to talk about “what’s happened then”;

5. B then embarked on her account of being made to watch porn and the appellant making her touch his penis; and

6. at the point the interviewer said “so can you call (sic) a specific time when he did that?  That he made you touch his penis?”, and B answered “I can’t remember”.

60. In context it seems quite likely that B understood the question to be the same one she had answered before; that is, that she could not remember when it occurred, as in a date.  But she could remember what occurred.  In my view the jury could accept the exchange that way, and it was open to take the view that the answer did not detract from the accuracy of her recollection as to what happened.

61. Holmes JA has concluded^[27] that the police interviewer inaccurately asserted “But you said it happened a number of times?” with reference to the appellant making B touch his penis.  B had said in that interview that the appellant “made me watch, um, porn several times and he just made me touch his area”.  That answer was capable of then being understood as meaning that on several occasions she had been made to watch porn and touch his penis.  It was later in the interview that B made it plain that there was only one occasion of touching his penis in her house, as the other incident occurred whilst in the car.  In my respectful view any inaccuracy at that point did not affect the quality of B’s answers.

62. Further, the interviewer’s questions that then followed^[28] were directed to a specific event, namely the last time the appellant had molested B in her home.  B had identified that as involving being made to watch porn and touch the appellant’s penis.^[29]  The questions then followed that particular event, which was the subject of count 2.  I do not see anything in that process which would detract from the quality or credibility of B’s account.

63. One must also consider the fact that B did not mention this event (being forced to touch the appellant’s penis) until the interview with the prosecutor and then the 29 November 2011 interview.  However, there were explanations available, and evidence given by B, which could well have been accepted by the jury as an explanation for the omission at the first interview.

64. First, there are the circumstances themselves. The conduct the subject of counts 1, 3, and 4 concerned the appellant touching B, and not the other way round.  That is to say, no part of the events of counts 1, 3 and 4 involved any suggestion that B touched the appellant, let alone on the penis, even if forced.  It is not difficult to understand that a 12 year old girl (as B was when first interviewed), interviewed in the presence of a male stranger, might be reluctant to mention anything that was, or might be, suggestive of her touching the appellant.

65. When one considers counts 2 and 5, each involved B’s hand touching the appellant’s penis, or testicles, albeit in a forced way.  And count 2 involved the graphic details of masturbation, ejaculation and ejaculate ending up on B’s leg.

66. In my view it is not hard to see why a 12 year old, or a 14 year old (as B was when she was interviewed in 2011 and gave evidence in 2012) might be very reluctant to tell anyone such matters.  Indeed, her reluctance is reflected in an answer given by B at the end of the first interview.  She was asked “is there anything else you want to tell me?”, to which she answered “No”.^[30]

67. Secondly, the manner in which B gave her account and her evidence, revealed in the videos of the two interviews (27 August 2009 and 29 November 2011) and her pre-recorded evidence, lends support to that conclusion.  In the first interview B was just 12 years old and interviewed by a male police officer.  During that interview she was hesitant to give details, often crying and clearly uncomfortable, especially where the details concerned body parts.  Her reticence about those events that involved her touching the appellant’s penis was understandable.  In my view that these events occurred is a conclusion that was open to the jury to draw.

68. At the second interview B had already revealed some of the events of counts 2 and 5, to the prosecutor, a female police officer, on 25 August 2011^[31].  The interview on 29 November 2011 was again conducted by a male police officer, and the video shows B to be clearly uncomfortable about relating the details of these events.  The interviewer asks questions that elicited the details, including the explicit description of the masturbation, where the ejaculate ended up, and the colour of the ejaculate.^[32]  B was crying during the description of the masturbation (count 2).  I have little doubt, from watching the video and the manner in which she responded, that B found revealing that level of detail extremely embarrassing and uncomfortable.

69. Thirdly, B gave some explanation for why she didn’t reveal the events for counts 2, 3 and 5.  In her interview on 29 November 2011, albeit in relation to the events of charge 3 only, she said: “like I wanted to tell someone but I was scared … [s]o I didn’t know what to do”.^[33]  She said, however, that she did tell her friend J.  If she was too scared to talk about the events of count 3, which did not involve any conduct on her part, forced or otherwise, the same is logical for counts 2 and 5.  The video also reveals that B was crying at the time she gave those explanations, which the jury could accept as showing the anxiety B felt about the events, and the difficulty in revealing them.

70. Further, after B was cross examined about her failure to mention many of these matters, she said this in re-examination:

1. as to why she did not say anything about the events of count 2 and 5, especially to her mother, her friends or their parents and the police:  “I guess I was worried and scared”, “I think it was too personal to tell them”;^[34] and

2. then, as to why she had said nothing to her friend J or her parents about the events of count 2 and 3:  “I guess that was too personal as well”.^[35]

71. In my view if one was satisfied with the overall honesty of B, one could accept those explanations as to why the events had not been raised earlier. In my view it was open to the jury to have accepted those explanations in that way.

Discussion – count 5

72. The events relating to count 5 came out during the interview with the prosecutor on 25 August 2011.  The sequence is revealed as:^[36]

1. B was asked to “think back to when [the appellant] touched her on the breast, on or around her birthday”;

2. B remembered her Mum and Dad had a fight and [the appellant] took her to Woolworths;

3. the prosecutor asked “Where did it happen?”;

4. B answered that it happened in the PCYC car park while they were in the car; the appellant touched her on the breast and made her touch “down there”, which she then identified as his penis; he did this by grabbing her hand and “kept pulling it down there; she kept trying to pull away”;

5. B said that the appellant’s penis was out of his pants and it went on for 5-10 minutes; and

6. when asked when she thought this happened, B “said she was pretty sure it happened in the Easter holidays, all happened around the same time”.

73. The appellant pointed to various contradictory aspects or inconsistencies about this account. First, it was not mentioned at all in the first interview. Secondly, the only touching during the car incident referred to in the first interview was touching on the breast and nowhere else.^[37]  Thirdly, the only touching referred to regarding this incident in the first interview occurred while driving, on the way to Woolworths, not on the way back.^[38]  Fourthly, B’s evidence was that while they were at the shops there had been a call from her father, asking them to come home straight away,^[39] and therefore stopping on the way home was inconsistent with the need to get back home straight away.^[40]  Fifthly, there was the differing period referred to, with B saying she was pretty sure it happened in the Easter holidays, when she made it clear in the first interview that the trip to Woolworths was on her birthday (26 August).

74. In the second interview (on 29 November 2011) B said that the appellant had molested her^[41] “in the Easter holidays” and “on my birthday as well”.  At that point the interviewer said:

“…you’ve already said that … certain things happened on your birthday, but are we talking about just at your house? I guess I want to just talk about your house at the moment…”.^[42]

75. Thereafter the interviewer concentrated on events that took place in B’s house.  The events that occurred in the car were raised by B in answer to the question “If you think then back, … after that was there any other times that that occurred?”, referring to an occasion when she had seen or touch the appellant’s penis.^[43]  It was then that B said “I think. We like stopped the car and that’s when he made me do it again”, and she confirmed that it was on her birthday.^[44]  The interviewer immediately responded that “you spoke to the other police about that didn’t you?”,^[45] and returned to events at the house for the rest of the interview.

76. Finally, the interviewer asked whether B had seen the appellant’s penis more than the one time (the subject of count 2):

“Interviewer:  Well has there been, … has there been more than once that you’ve seen his penis?

B:  No that was

Interviewer:  That was just the- -

B:  Oh, the ca-, the car bit.

Interviewer:  Oh the car bit sorry, okay so- -

B:  Yep.

Interviewer:  And, and that was the only other time?

B:  Yeah.”^[46]

77. From that it is clear that B raised the subject matter of count 5 at the second interview on 29 November 2011, but the interviewer did not wish to discuss it, concentrating on the events at the home instead.  Further, she identified it as being on her birthday, and a time when the car was stopped.

78. In her pre-recorded evidence-in-chief B was taken to the statement made during her second interview (29 November 2011) that the appellant stopped the car and “that’s when he made me do it again”.  She explained that as touching the appellant’s penis when he grabbed her hand and put it down his pants.^[47]  She said her hand was inside his pants and she was made to touch his testicles for about five seconds.^[48]

79. The cross examination of B in respect of this matter, as with the other matters, cannot be properly assessed without watching the video.  B answered almost all questions in a calm, almost impassive manner, and largely with simple “yes/no” type responses.  Where she departed from that it was usually to say that she couldn’t remember or was not sure, or to ask that something be repeated or rephrased.  At times it was obvious that she was struggling to control her emotions, but the only time she was obviously crying was in connection with questions on count 5.^[49]

80. B’s “yes/no” type answers were given in response to all questions about the inconsistencies referred to above.  She acknowledged that the events of count 5 had not been mentioned until the interview with the prosecutor on 25 August 2011, and that aspects did not match with what she had said at the first interview, or the interview with the police prosecutor.^[50]  Further it was put to her that “you don’t really have a very good memory about any of this at all; do you?” and B answered “Not really, it was two years ago, so.”^[51]  And B agreed that in the first interview when she gave her answers as to her breast being touched, she was saying that nothing else happened.^[52]  Further, as to the masturbating event, B agreed that she could have told the police interviewer on 27 August 2009 but did not.^[53]

81. Further, B was questioned about the fact that in the interview with the prosecutor she had said that the touching of her breast happened in the PCYC car park, whereas in the first interview she said it happened on the way to the shops.  It was put to her that there was a difference:

“But that’s different, isn’t it, from what you told the police, that it happened when you were – he was driving in the car on the way to the shops?-- It happened twice.

I see, and you’re just saying that – today’s the first time you’re saying it happened twice; is it?-- Yeah-----

Right?-- ----- it happened more than once.”^[54]

82. When the case for the appellant was put to B, she gave responses that could be seen as exhibiting frustration or anger at the suggestion, expressly put, that the appellant never touched her breasts or vaginal area, never made her watch porn or touch his penis, nor masturbated.^[55]

83. The only other time that the video reveals that B showed anger or frustration at the questioning was in relation to the subject matter of count 3:

So now you don’t even know if it happened, can you (sic), because you don’t remember it?-- I can remember it. I can remember it. It happened.

And you’re-----?-- This is why I’m here.”^[56]

The video evidence

84. Having watched the videos, it is apparent that the transcripts of the interviews and the evidence do not convey aspects of B’s behaviour at the time, which, in my view, are important to an assessment of the acceptability of her evidence on counts 2 and 5.

85. I agree with Holmes JA that the 2009 descriptions of events can be reasonably accepted, in part for the reasons her Honour gives in paragraphs [33] and [34].  However I do not agree, with respect, that the 2011 statements cannot be reasonably accepted.

86. Specifically I do not consider that B’s response as to count 5, namely that the touching of the breast occurred twice, looks like an attempt to deflect the pressure of questioning.^[57]  As mentioned above, B’s evidence in court was given in a calm, impassive, and responsive manner.  B told the prosecutor that the occasion at the PCYC car park was one where her breast was touched but also included her having been forced to touch his penis.  B further stated on 29 November 2011 that touching the penis occurred “on that day, my birthday, when we went to the shops”^[58], and the appellant “stopped the car”^[59].  Through these statements B had revealed the essential parts of count 5.  I detect nothing in B’s responses under cross-examination that suggests an attempt to deflect the pressure of questioning, but rather a form of resignation in having to reveal and discuss embarrassing events.

87. Nor do I consider that the failure to reveal the touching of the breast at the PCYC car park to J’s mother, signifies much in these circumstances.  The PCYC part of the events involved B having touched the appellant’s penis.  Her failure to reveal (to anyone) that part of the events is explicable in the same way as her failure to reveal the other occasion of having to touch the appellant’s penis, namely that in count 2.  The jury could well have taken the view that when B was 12 she was simply reluctant to give details of matters which involved her touching the penis, because they were too personal and embarrassing, and she was scared.

88. I do not consider that B’s statement to the prosecutor, that she thought the PCYC event happened in the Easter holidays, is of such weight as to cast significant doubt on what the jury could accept as to the timing.  The questions concerning that event started with B being asked to remember the touching of the breast “on or around her birthday” when the appellant “took her to Woolworths”.^[60] Then she was asked where it happened.  In answer she detailed the PCYC events.  She was asked when she thought it happened, which elicited the answer about the Easter holidays.  But that answer does not really go to the core of her recollection of the events themselves.  So little was evidently thought of it, that nothing was made of it in cross-examination.

Discussion – count 3

89. Count 3 concerns the occasion when B said that appellant came into her room while she was sleeping, rolled her onto her back, and put his hand down inside her pants.

90. It is slightly different from counts 2 and 5, in that: it was not mentioned in the interview in 2009, and it was not revealed to the prosecutor on 25 August 2011; it was only revealed in the 29 November 2011 interview when the interviewer concentrated on events at B’s home.  The sequence of events that were covered in that interview were:

1. the first time B could remember the appellant touching her at her house;^[61]

2. the last time it happened at the house;^[62]

3. the occasion in the car on her birthday;^[63] and

4. then, “any other times that you can rec-, think back that it happened at your house”, at which point B gave her first account of the events which are the subject of count 3.^[64]

91. B’s account was that the appellant put his hand down her pants.^[65]  Asked “whereabouts did he touch you?”, B answered “Um, my private area”.  The next question was “which … private area are we talking about?”, to which B responded “Down there”, indicating downwards with her hand.  She was then asked “And what part of your body do you call that, …. what do girls or boys or anyone call that?”, to which B responded “Vagina”.^[66]  Then she was asked if she had been wearing underwear, and B nodded.  The questions went on: “Now did he put his hand down?”  B’s answer was: “He started to but then I kicked him”.  She said the appellant’s hand was underneath her underwear, then the question was: “And he started to touch you on your vagina?”, to which she answered “Yep.  And then I just kicked him.”^[67]

92. B’s account to that point clearly said that the appellant started to put his hand down her pants and started to touch her on her vagina.

93. In cross-examination on this count the questions and answers were:

“And then you say he started to touch you?-- Yeah.

Did he actually touch your vagina or not?-- No, he didn’t, but he was going to.

Did he touch your stomach only?-- Yes.

But he didn’t touch in your vagina at all?-- He was going to, but no.”^[68]

94. In my view that account was consistent with what B said in her interview. Then she had said that the appellant had touched her vagina, but immediately qualified that to say that he started to do so, but she kicked him.

95. The main attack by the appellant in respect of this count was that there was such a disparity between B saying that the appellant touched her on the vagina, and then later saying it was only on the stomach, that the verdict was unsafe.  I do not agree that there was that disparity.  It was open to the jury to accept B’s first description of these events as being that the appellant put his hand down inside her pants and underwear, in the course of an attempt to touch her vagina, but did not actually do so because she kicked him before that happened.  That is what the evidence, fairly read, says, and if the jury accepted the essential honesty of B’s responses, it was open to them to be satisfied of the appellant’s guilt on this count.

Conclusion

96. For the reasons above I do not consider that the attack on the jury’s verdicts on counts 2, 3 and 5 has been sustained.  Put in the way expressed in M v The Queen, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  I consider that the discrepancies and inadequacies in the evidence, identified by the appellant, are explicable by the circumstances in which B found herself, her age, the obvious distress that the police interviews caused her, and her obvious reluctance to reveal matters which involved her touching the appellant’s penis.  B’s evidence at trial accepted all the suggested inconsistencies and inadequacies were present, and frankly acknowledged the imperfections in her memory.  The video reveals B’s calm and impassive acceptance of the flaws in her accounts of the offences, but her resolute disagreement that the offences did not occur.  In my view the jury could well accept her evidence as being truthful and accurate as to the events, even if she could not be accurate as to times with the exception of the events on her birthday.  After reviewing the evidence I do not have such a doubt about the verdicts that it would bring the case within M v The Queen, and I do not consider that there is a significant possibility that an innocent person has been convicted.

97. I would dismiss the appeal.

98. PHILIP McMURDO J:  I agree with the orders proposed by Holmes JA.

99. It was open to the jury to convict the appellant on counts 1 and 4 on the basis of what the complainant had said on 26 and 27 August 2009.  There was no improbability about the circumstances of count 1 as the complainant recalled them.  Nor was the jury obliged to reject the complainant’s original complaint, which founded count 4, because it was inconsistent with her statements made some years later.  Instead, that inconsistency meant that the jury should have doubted that the appellant was guilty on count 5.

100. I have viewed the DVD recordings of the complainant’s interviews with police officers and of her evidence. The way in which the complainant gave her version or versions of events, as distinct from the content of what the complainant there said, was not influential in my reasoning. With that qualification, I agree with the reasons given by Holmes JA.