R v BCU[2014] QCA 292

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Fraser JA and the order he proposes.

[2] FRASER JA:  The appellant was found guilty by a jury of three counts of rape and three counts of aggravated indecent treatment of a child.  The grounds of the appellant’s appeal against conviction are that certain evidence occasioned a miscarriage of justice and that the verdicts are unreasonable having regard to the evidence.

Summary of the case

[3] In the period comprehended by the six charges in the indictment the complainant was aged between eight and 13 years old.  She was the daughter of the appellant’s step-brother.  The complainant had a brother who was three years younger than her.  During school holiday periods the complainant and her family regularly travelled from their home at or near Mackay to stay with the complainant’s grandparents in Townsville.  For part of the relevant period the appellant, his wife, and their daughter lived in a house next door to the complainant’s grandparents.  The appellant and his family later moved to a different address.  The appellant’s daughter (who the complainant referred to as a cousin) was a year younger than the complainant.  The complainant visited the appellant’s houses to play with his daughter and often stayed the night.

[4] By the time of the trial in May 2014 the complainant was 22 years old.  Evidence was given by the complainant, the complainant’s former boyfriend, the appellant’s daughter, a police officer, and the complainant’s parents.

[5] The complainant gave evidence that when she was at the appellant’s house and her parents were not present the appellant smacked her on the bottom, called her beautiful, and on a few occasions walked into the bathroom while she was naked and looked at her for a couple of seconds before walking out.  The trial judge directed the jury that this and some other evidence which it is not necessary to describe was not the subject of any particular charge and could be used by the jury only if they accepted the evidence beyond reasonable doubt and only if the jury was satisfied that the evidence demonstrated that the appellant had a sexual interest in the complainant.  Only in that case might the jury use the evidence in deciding whether it made it more likely that the appellant did what was alleged in the charges.  The jury could not use the evidence to conclude that the appellant had a tendency to commit the offences and if the jury did not accept this evidence they should take that into account when considering the evidence relating to the charges.

[6] The complainant gave evidence of an occasion at the appellant’s house next to the complainant’s grandparents when she was aged between eight and 12 years.  Whilst she and the appellant were sitting on a couch in the lounge room playing a game, and the appellant’s daughter was elsewhere in the house, the appellant put a pillow on her lap, put his hand under the pillow and caressed her thigh.  He then put his hand under the waistband of her boxer shorts and stroked her vagina; the complainant could not remember whether he did so under or on top of her underwear (count 1: aggravated indecent treatment).  Nothing was said.  The complainant could not recall whether the appellant’s wife or the complainant’s brother were in the house.  In cross examination she agreed that when she spoke to police in September 2009 she had said that she did not remember if there was anyone else in the lounge room but she knew that her brother, the appellant’s daughter and the appellant’s wife were in the house.  She then accepted that they were in the house but that she knew that they were not in lounge room at the time.  The complainant said that on the following morning when she had walked out of the bathroom at the appellant’s house the appellant whispered to her in a firm voice not to say anything and to just act normally.

[7] The complainant gave evidence that on a different occasion, when she was in grade six, her parents drove her and a cousin who was becoming a teacher to Townsville.  The car broke down and the complainant’s father had to walk to a nearby service station to fix the car.  Eventually they arrived in Townsville and the complainant went to the appellant’s place to stay.  The complainant was asked whether this was at the same address as for the previous incident, and she responded, “I’m – think – I’m – I’m – well, fairly sure that it was at [a different address].”  There were formal admissions at the trial that the appellant had lived at the house next door to the complainant’s grandparents between 1 January 2001 and 29 July 2002, that the complainant and her family visited the appellant and his family between 25 July 2002 and 29 July 2002, and that the appellant lived at a different address between 19 September 2003 and 5 September 2009.  The complainant was in grade six in 2003, but the complainant’s mother’s apparently reliable evidence (which was consistent with the complainant’s father’s less detailed evidence) was that this trip happened in July 2002 and that the complainant was then in grade five.  The Crown case in relation to this count was that the complainant’s mother’s evidence fixed the date.

[8] The complainant gave evidence that on this occasion she was playing an electronic game in the lounge room and the appellant’s daughter was sitting a different chair in the same room.  When the appellant’s daughter took over from the complainant playing the game the appellant asked the complainant to get him a beer from the kitchen.  She did so and the appellant asked her to sit down next to him.  The complainant thought but was not certain that the appellant’s wife was asleep.  The complainant did not know where her brother was.  The lights were off.  Whilst the appellant’s daughter played the game, the appellant put a pillow on the complainant’s lap and, after touching her leg and rubbing her vagina, he digitally penetrated her (count 2: rape).  The complainant said that the appellant also put a pillow on his own lap and, whilst he was dealing with the complainant, he was masturbating himself under the pillow.

[9] The appellant grabbed the complainant’s hand, put it around his penis, put his hand on top of the complainant’s hand and started moving it up and down (count 3: aggravated indecent treatment).  The complainant could not remember the appellant saying anything to her when she had her hand on his penis.  She did not say anything to the appellant’s daughter.  This stopped when the appellant’s wife woke up and went from the bedroom to the bathroom.  The appellant told his daughter to go to bed and the complainant followed.  In cross examination the complainant at first said she could not recall whether there was any conversation at all but she then accepted that in September 2009 she had told police that the appellant had asked her whether it felt good.  When asked what she did immediately afterwards, the complainant said that she thought, but could not remember, that the appellant’s wife came into the lounge room.  The complainant then agreed that it was when the appellant’s wife came into the lounge room that the appellant stopped touching her and removed his hand from under the pillow and let go of her hand that had been on his penis.

[10] In the complainant’s evidence in chief she said that on the following day she had a conversation with the appellant, which she thought occurred in the bedroom but could not say for sure.  The appellant told her that if she told anyone what had happened the appellant would not hurt her but he would hurt her brother, and that no one would believe her anyway.

[11] The complainant gave evidence of a subsequent occasion – she could not remember the exact year but it was in January and she thought it was about 2005 – in which she and her brother caught a train to Townsville on 2 January.  They stayed at the appellant’s house and the complainant slept in a double bunk bed in the appellant’s daughter’s room.  The complainant slept on the bottom single bed and the appellant’s daughter slept on the top single bed.  The appellant came into the room when the light was off and sat down next to the complainant on the bed.  He grabbed her hand and put it on his penis, which was outside his underwear, and made her stroke his penis; the appellant moved the complainant’s hand up and down his penis (count 4: aggravated indecent treatment).  The complainant gave evidence that she felt a ring of some kind at the base of the appellant’s penis.  The ring was made of rubber which was a couple of millimetres thick.  Speaking softly because the appellant’s daughter was sleeping in the bed above the complainant asked the appellant what it was.  He said that it was a “cock ring to keep him hard”.

[12] The appellant subsequently pulled the complainant into a sitting position, grabbed her head, forced it on to his lap so that his penis was in her mouth, and moved her head up and down (count 5: rape).  The appellant’s daughter woke up while this was happening.  The appellant continued whilst he leant on the top bunk with one arm and spoke to the appellant’s daughter.  The appellant ejaculated into the complainant’s mouth and she spat the ejaculate onto the floor while she was hearing the appellant’s daughter’s voice.  The appellant then left the room and went to the bathroom.  The complainant was asked whether she could remember any other occasions or incidents and responded that she could not remember “off the top of my head right now”.

[13] In cross-examination the complainant gave evidence that, when her cousin woke up during the event charged as count 5, the appellant pulled her head off his penis whilst he stood up and spoke to his daughter.  After some time the appellant put his penis back into the complainant’s mouth and made her suck his penis until he ejaculated (count 6: rape).

[14] At the end of the complainant’s examination-in-chief she gave evidence that her last conversation with the appellant was in around 2005.  She told the appellant that she did not want it to happen any more and that she was going to tell her parents.

[15] The complainant’s former boyfriend gave evidence that in 2006, when he was a Year 12 student, he had a relationship with the complainant.  He had a conversation with her at the end of that year.  At the time of this conversation the complainant was 15 years old and in “about” grade 10.  (According to the admitted birth date of the complainant, at the end of 2006 she was in fact 14 years old.)  The complainant told him that on earlier holidays when her family had visited the appellant the appellant had “abused her and made her touch him on the penis”.  She elaborated upon what she meant by “touching him on the penis” by describing it as to “masturbate him”.  Whilst the complainant was telling her boyfriend those things she was “terrified and crying” and “very emotional”.  In cross-examination the complainant’s former boyfriend said that he was only told the details he had mentioned.  He agreed that the complainant had simply said that the appellant had “made me touch him on the penis” or “masturbate” and she mentioned that the complainant’s cousin was present for some of those times.  He was not asked directly either in evidence-in-chief or in cross-examination whether or not the complainant had elaborated on what she meant by her statement that the appellant “had abused her”.

[16] The appellant’s daughter gave evidence of visits by the complainant to the appellant’s houses and of sleeping arrangements in those houses.  That evidence was consistent with the evidence given by the complainant.  In cross-examination the appellant’s daughter agreed that she never saw anything inappropriate.

[17] A police officer gave evidence that in the course of executing a search warrant in March 2011 at the house at which the appellant was then living he took photographs of black rubber rings and other objects on a bedside table.  The photographs were tendered in evidence.  They depict a table cluttered with objects, including magazines, torches, coins, a nail file or rasp, tissues, an unopened packet of lubricant, and three black rings in a small wooden box.  The rings appear to fit the description which the complainant gave of the ring she felt when the appellant engaged in the conduct the subject of counts 4, 5 and 6.

[18] The appellant did not give or call evidence.

[19] After the evidence was completed within the afternoon of the first day of the trial, the trial judge summed up for a little longer than an hour on the morning of the second day.  In response to a question from the jury that afternoon, the trial judge read to the jury evidence given by the complainant in relation to counts 2, 5 and 6.  The court adjourned at 5 pm.  The jury resumed their deliberations at about 9.30 am on the third day of the trial.  At 11.39 am, in response to a communication from the jury that they were at a stalemate in respects of counts 5 and 6, the trial judge gave the jury a direction, in the form described in Black v The Queen,[1] to make a further attempt to reach a verdict.  The jury ultimately returned the guilty verdicts at 2.21 pm.

Ground 1: “That evidence of what was found on a table in the Appellant’s bedroom occasioned a miscarriage of justice”.

[20] Under ground 1 in the notice of appeal the appellant argued that the evidence of the finding of the three rings on the appellant’s bedside table should not have been admitted.  Defence counsel did not object to the admission of that evidence at the trial and the appellant’s senior counsel conceded that the evidence was probably admissible.  That was an appropriate concession.  Most of the objects on the bedside table were not designed for any sexual purpose and the rings were found as long as some six years after the complainant allegedly felt a similar ring worn by the appellant when he committed the offences alleged in counts 4 to 6.  Even so, the evidence of the presence on the appellant’s bedside table near a packet containing lubricant and rings which (upon the complainant’s evidence) fitted the  description of a ring used by the appellant for a sexual purpose made it more probable that the appellant engaged in the conduct alleged in those counts.[2]  The evidence was therefore admissible.  The absence of proof that the rings found by police included the particular ring alleged to have been used by the appellant when committing the alleged offences did not render the evidence inadmissible.[3]

[21] The appellant’s senior counsel argued that the evidence of the finding of the rings should have been excluded in the exercise of the discretion to exclude admissible evidence of slight probative value which is gravely prejudicial.  This argument invoked the discretion that a trial judge should exercise to exclude evidence where the strict rules of admissibility would operate unfairly against the accused “in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”[4]  The appellant’s senior counsel argued that the trial judge should have excluded the evidence because, having regard to the delay of almost six years between the commission of counts 4, 5 and 6 and the finding of the objects and the fact that the found objects might have had a number of non-sexual connotations, the probative value of the evidence was slight or trifling and the prejudicial effect of the evidence was substantial.  For the reasons articulated in that submission the evidence of the finding of the rings was not strong, but it is not clear to me that its weight is properly described as being only “slight” or “trifling”.

[22] Whatever term is used to describe the weight of the evidence, the discretion to exclude it was available for consideration only if the evidence was prejudicial.  The appellant’s outline of argument did not articulate what it was that made the evidence prejudicial.  In oral argument senior counsel for the appellant relied upon the circumstances already mentioned, which demonstrated that the evidence was not strong.  But the weakness of evidence does not of itself constitute relevant prejudice.  For the purposes of this ground of discretionary refusal to admit evidence the term “prejudice” comprehends a danger that the jury may use the evidence improperly[5] or in a way which goes beyond its probative value, or give it “more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task”.[6]  It is not necessary here to attempt to describe all of the circumstances in which admissible evidence may operate unfairly such as to constitute prejudice, but it is necessary to bear in mind that “prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused” and that it is “unfair prejudice that is in question”.[7]  The discretion to exclude evidence may be exercised only where the evidence has relatively slight probative value and a substantial prejudicial effect other than its effect in proving the offence.[8]

[23] The evidence was not of a kind which was inherently likely to fan the flames of prejudice or otherwise divert the jury from their task.  The argument for the appellant ultimately focussed upon the proposition that there was a danger that the jury would give the evidence more weight than it deserves.  Some categories of evidence, such as positive identification evidence, are known to attract such a danger.  Such a danger may also arise in relation to circumstantial evidence concerning identification, but in Festa v The Queen McHugh J pointed out that because such evidence was “usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence.”[9]

[24] In the present case the circumstances which limited the weight of the evidence were not obscure or likely to be difficult for non-lawyers to understand.  The trial judge could reasonably have concluded that the jury would appreciate the extent to which those circumstances limited the weight of the evidence.  Perhaps the trial judge might have reached a different view if the point had been taken, but that is not sufficient to justify appellate intervention.  Because the trial judge was not asked to exercise this discretion, the question for the Court is whether, if the trial judge had been asked to exclude the evidence, the trial judge would have been obliged to do so.[10]  I would hold that the trial judge instead might legitimately have declined to exercise the discretion to exclude the evidence on the footing that there was no appreciable risk that the jury would give undue weight to that evidence.

[25] Defence counsel did not ask the trial judge to give the jury any directions upon this topic and no direction was given beyond the trial judge’s statement that the complainant’s evidence of the appellant wearing a rubber ring and the subsequent finding of rubber rings on a beside table in the appellant’s home were matters which the jury could “properly take into account”.  In circumstances in which the admissibility of the evidence was uncontroversial, that was an appropriate direction.  No undue weight was attributed to the evidence.  In any event, it is not a ground of appeal that the trial judge’s directions were deficient in this or any respect.

Ground 2: “The verdicts are unreasonable having regard to the evidence”’

[26] The ground of appeal that the verdicts are unreasonable having regard to the evidence requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.[11]  If the Court harbours a reasonable doubt about the appellant’s guilt, it will only be where the jury’s advantage of seeing and hearing the evidence can explain the jury’s different conclusion that the Court may decide that no miscarriage of justice has occurred; if, after “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 set aside a verdict based upon that evidence.”[12]

[27] Senior counsel for the appellant argued that there was an inconsistency between the complainant’s evidence in chief and her evidence in cross-examination concerning the reason why the appellant stopped engaging in the conduct charged in count 3 (see [8] of these reasons).  If there was such an inconsistency, it was not of such importance as to require the jury to harbour a doubt about the complainant’s evidence about this offence, but it is not clear that there was any inconsistency.  This aspect of the appellant’s argument assumed that the route from the bedroom to the bathroom did not go through the lounge room.  That assumption is not self-evidently correct and it was not established by evidence.

[28] Senior counsel for the appellant argued that the complainant’s memory was shown to be unreliable by her mistake that she was fairly sure that the events charged as counts 2 and 3 occurred at the house to which the appellant and his family moved after they left the house next door to the complainant’s grandparents.  Counsel for the respondent accepted that the complainant must have been mistaken about the house where these offences occurred.  He made the point, however, that the complainant was able to identify the occasion of those events by reference to a relative’s birthday and by reference to the time when the family car broke down whilst the complainant was returning with her family and a cousin to Townsville.  Those aspects of the complainant’s evidence were consistent with evidence given by her mother, whose evidence was used to fix the period charged for counts 2 and 3.  Furthermore, the complainant was far from being dogmatic about the place where those offences occurred.  It was for the jury to consider whether this evidence cast any doubt upon her reliability, but it remained reasonably open for the jury to consider that this was not a significant mistake.

[29] It was submitted for the appellant that it was inherently implausible that anyone would have committed these offences in circumstances in which other family members (count 1) or at least one other family member (counts 2 – 6) was in the same room.  In relation to counts to 2 – 6, the jury could take into account that the appellant would be likely to know whether or not his daughter, who was about a year younger than the complainant, would have been likely to understand what was occurring if she witnessed it.  Nevertheless, in relation to those counts and count 1, this was also a matter which the jury was bound to take into account.  Again it did not preclude the jury from accepting the complainant’s evidence as being credible and reliable.

[30] The appellant’s senior counsel also argued that it was inherently implausible that, if the appellant behaved as the complainant had alleged, the complainant would not have said anything about it to the appellant’s daughter or to her extended family, with all of whom she enjoyed a close relationship.  (Both the complainant and the appellant’s daughter gave evidence that they were very close to each other and the complainant agreed in cross-examination that her parents, her grandparents, the appellant and his wife and all of her aunts and uncles were always very supportive of her whilst she was at school.)  In assessing this argument, the jury could take into account the complainant’s young age, evidence of the relationship between the complainant child and the appellant (who the complainant regarded as an uncle), the appellant’s statement to the complainant that she was not to say anything, and the appellant’s threat that if she did tell anyone he would hurt her brother and that no-one would believe her anyway.  It was reasonably open to the jury to conclude that the complainant might have found it difficult in those circumstances to make a complaint about the appellant’s conduct.  The complainant’s omission to complain to other members of her extended family about the conduct which she alleged might reasonably have been regarded by the jury as not adversely reflecting upon her credibility or the reliability of her evidence.

[31] It was submitted for the appellant that the complaint which the complainant made in 2006 detracted from her credibility because it was not consistent with her evidence of more serious misconduct by the appellant.  Counsel for the complainant accepted that the complainant did not complain about the more serious sexual conduct.  That concession was presumably based upon a construction of the evidence of the complainant’s former boyfriend that she complained to him only of having masturbated the appellant.  That assumed that his evidence that the complainant said that the appellant had “abused her and made her touch him on the penis” described only that one kind of conduct.  That assumption was arguably justified by his answer “masturbate, yep” to the suggestion in cross-examination that the complainant simply said that the appellant “made me touch him on the penis…or masturbate”, but that suggestion might have been understood by the witness only as a reference to his evidence-in-chief that the complainant told him that the appellant “made her touch him on the penis”.  His evidence that the complainant said that the appellant had “abused her” might have comprehended the different and more serious offending, which he was not asked to elaborate upon either in evidence-in-chief or in cross-examination.  Indeed he might simply have misunderstood that aspect of the complaint.  Assuming, however, that the respondent’s concession accurately reflected the evidence, it does not follow that the jury was bound to have any doubt about the complainant’s credibility.  As was pointed out for the respondent, the complainant was not asked in evidence-in-chief or in cross-examination about the complaint she made or why it was limited.  The jury could discount the significance of that limitation by taking into account the complainant’s former boyfriend’s evidence that when the complainant made these disclosures she was “terrified and crying” and “very emotional” and also by taking into account the embarrassing nature of disclosures that the appellant had digitally penetrated her and that she had performed fellatio on him.

[32] The trial judge directed the jury that the evidence given by the complainant’s former boyfriend related to the penile touching alleged in counts 3 and 4, that this evidence related to the complainant’s credibility, that consistency between the account and the complainant’s evidence could be taken into account as possibly enhancing the likelihood that her testimony was true in relation to those charges, and that any inconsistencies between that account and the complainant’s evidence might cause a jury to have doubts about the complainant’s credibility or reliability.  It is evident that the jury did not harbour any reasonable doubt on that account.  That was reasonably open to the jury.

[33] Reference to the transcript of the complainant’s evidence suggests that the complainant was a co-operative witness who made appropriate concessions in cross-examination, whilst at the same time adhering to the substance of the account she gave in examination-in-chief.  Although the evidence of the complainant in support of count 6 emerged only in cross-examination, there was no real inconsistency between that evidence and in the evidence given by the complainant in evidence-in-chief.  So far as can be gleaned from the transcript, the complainant’s evidence as a whole appears persuasive.  Although the jury was obliged to take into account the points now advanced for the appellant and some other, relatively minor conflicts in the evidence and points advanced at trial but not in this appeal, the individual and cumulative effects of those points did not oblige the jury to harbour a doubt about complainant’s credibility or about the reliability of her evidence of the offences.

[34] It may be assumed that the jury did take into account each of the points upon which the appellant now relies.  In summing up to the jury the trial judge reminded the jury of the evidence of the lengthy delay in reporting the events which she alleged against the appellant, the consequential difficulties for the appellant in investigating, testing, and meeting the evidence of the complainant and calling relevant evidence at the trial.  Consistently with Longman v The Queen,[13] the trial judge warned the jury, that for those reasons, “it would be dangerous to convict upon the complainant’s testimony alone unless, having scrutinised it with great care, having considered the circumstances relevant to its evaluation, and paid heed to this warning, you are satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s account.”  In addition to that emphasis upon the significance of the delay by the complainant in making any complaint about the events which she alleged, the trial judge summarised the arguments advanced by defence counsel – which included the other three main arguments advanced on appeal (the complainant’s mistake about the place at which counts 2 and 3 occurred, the implausibility of the appellant committing the offences when others were nearby, and the limited nature of the preliminary complaint) in the course of summarising the parties’ submissions.

[35] I am persuaded that this properly directed jury could reasonably accept that there was no reasonable doubt about the truth and accuracy of the complainant’s evidence.  It was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the offences of which he was convicted.

Proposed order

[36] I would dismiss the appeal.

[37] HENRY J:  I have read the reasons of Fraser JA.  I agree with those reasons and the order proposed.