R v Wilson[2014] QCA 350

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Holmes JA's reasons for allowing this appeal against conviction, setting aside the guilty verdict and substituting a verdict of acquittal.

2. HOLMES JA:  The appellant was convicted of the rape of a small girl, C, on a date unknown between 1 July 2009 and 6 February 2011.  He appeals against that conviction on the ground that the verdict was unreasonable.

The Crown case

3. C, who was born in February 2006, lived with her parents and her siblings in a small country town. In 2009, C’s mother became pregnant to the appellant, who lived in the same town. During the pregnancy she continued to reside with her husband and children but in early 2010 moved to live with the appellant. The Crown case was that before that move occurred, she had left C in the care of the appellant while she went to Toowoomba shopping, and that while looking after the child he had put his penis in her mouth. The evidence in the Crown case came from C herself and from witnesses to preliminary complaint by her: her older sisters, X and Y, her father and his de facto wife, her aunt and another woman connected to the family by marriage.

4. C gave a s 93A statement to a police officer on 13 April 2013, when she was seven years old. She said that she was at the appellant’s house eating lunch and asked for a lolly. The appellant took her to the toilet, closed the door, unzipped his pants and put what C called his “weiner” in her mouth. She said that the appellant had “a big doodle” and “big balls”.  She tried to get away.  The appellant pulled her back and put his penis back in her mouth.  Asked what she did when she tried to get away, C said that she pulled the penis out.  After that, the appellant “let [her] out” by taking his penis out of her mouth with his hand.  She told her mother what had happened, in the presence of her sisters, X and Y and her brother, (she had two older brothers but did not say which this was), but her mother did not believe her.  Her mother had been “at the shop”; C thought her sisters might have been at their friends’ houses that day.  Her younger brother, A (who was born on 15 January 2010) was not yet born.

5. C had just turned eight when she came to give pre-recorded evidence in February 2014. She said that on the day in question, she was with the appellant because her mother was shopping. Her mother, at that time, was moving in with the appellant but was still living with C and her siblings at C’s father’s house. C could not remember if her brother, B (who was two years older than she), or the appellant’s own sons (aged about five years old and three years old) were in the appellant’s house. It was put to her that she had not been left alone with the appellant and that he had not put his penis in her mouth; she denied both propositions. She also denied ever having been left at the childcare centre in the town where they lived while her mother went shopping.

6. C said she had told her mother of the incident at the appellant’s house in the presence of her sisters X and Y. The appellant had put his penis in her mouth once; asked whether it was twice, she said she could not remember. That incident had happened in the toilet, which was a separate room from the bathroom. She maintained that she was five years old at the time. C denied that there had ever been an incident when she found a penis-shaped lolly in the appellant’s refrigerator.

7. C’s sister, X, was aged 11 when she was interviewed by police in April 2013. She said that she, her mother, her sister Y and a friend of her mother’s named Vanessa, had gone shopping in Toowoomba. C and their brother B were being looked after by the appellant. His two sons were also there. When X, Y and their mother arrived home and were walking into the house, C said that the appellant was in the toilet and had told her to come to him. He had showed her his “doodle” and said something about a lolly. X did not remember if C had said anything after that, because it was a long time ago. She thought that when C made that revelation, the appellant was upstairs with the boys.

8. X was 12 when she gave pre-recorded evidence. She was unsure when the shopping excursion to Toowoomba had happened. X did not remember if she and her siblings were living with their parents at the time, but she was sure that her brother A was not born. The appellant’s own two sons were at the house when C was left there and their brother B was left to be looked after by the appellant as well. Her recollection was that at the back door of the appellant’s house, in the presence of X, Y and their mother, C had said something about asking for a lolly and being taken to the toilet; she had said other things as well.

9. About the end of February 2010, X said, she and the other children had moved with her mother to the appellant’s house. At that stage the toilet was in the bathroom, but later a separate toilet was installed. She had been to Toowoomba shopping with her mother, Vanessa and Y once or twice. There was no occasion when she, her mother, her older brother, Y, Vanessa and Vanessa’s daughter went to Toowoomba shopping for school items. On the shopping excursion she recalled, her older brother and Vanessa’s daughter had not accompanied them.

10. Y was 14 when she made her s 93A statement and when she gave pre-recorded evidence. She said that she, her mother and X had gone with her mother’s friend Vanessa to Toowoomba, where they shopped for clothes at the Clifford Gardens shopping centre.  Vanessa had driven them because her mother had only a learner’s permit.  Her mother at that time was still living with the children’s father; she had moved in with the appellant two or three weeks after the birth of A.  They had dropped C off at the appellant’s house; she thought that her younger brother B had also been left there, but she was unsure.  The girls’ father was at work and their mother needed someone to look after the younger children.  The appellant’s two sons were there, as well as another girl.  In the afternoon, they came back to collect C.  On their return to their own home, in the presence of X, Y and their mother, C said that she had asked for a lolly and the appellant had taken her to the toilet and put his penis in her mouth.

11. In her pre-recorded evidence, Y said that C was four on the occasion of the shopping trip. Y, her mother, her sister X and her mother’s friend Vanessa had gone on the trip; she was unsure if Vanessa’s daughter had accompanied them. She did not think her older brother had been there. It was during the school holidays; she was “pretty sure” it was just before her mother went to live with the appellant. There was only one occasion when they went shopping and C was dropped at the appellant’s house. Y was “pretty sure” that her brother B was dropped off as well. She could not remember if their little brother A was also dropped off. The next time she had heard the subject discussed was at the end of 2012, when C was telling people about it. In re-examination, Y said that she was not sure when this shopping trip had happened, but she was “pretty sure” that her mother was still pregnant with A.

12. C’s father had formed another relationship since his separation from C’s mother. His de facto wife said that at some time between August and December 2012, C had told her that when she was at home having lunch she asked for a lolly and the appellant had said that she could not have one unless she sucked his “doodle”. On a later occasion, at a different location, the child had started to talk about the incident again and she had told her to tell her father.  C’s father said that in April 2013 his de facto wife had asked C to repeat to him what she had told her.  C said that her mother had dropped her at the appellant’s place; they had lunch; she had asked for a lolly and he had taken her to the bathroom and put his “doodle” in her mouth.

13. C, her father and her siblings spent Christmas 2012 at her grandmother’s house. Other relatives of the grandmother and her de facto partner were there, including C’s aunt, Kathy, and another family connection, Melissa. Melissa asked C how she got on with the appellant. C said that he did not like her much; she talked too much and sometimes when people were not home he did things to her when she was just there by herself. Melissa enquired as to what sort of things and C replied that once when she was at home with him, she had asked for a lollipop and he had taken her into the toilet and put his “thingy” in her mouth.  When Melissa asked what a “thingy” was, C responded that it was a “doodle”.

14. Melissa evidently conveyed that conversation to Kathy, who asked the child what she wanted to tell her. C said, “He put it in my mouth”. When questioned as to whom she was speaking about and what they had done, she said that the appellant had put his penis in her mouth when her mother went into town and left her at his place. Kathy thought from what she had been told by C that the appellant’s other children were also there and were getting lollipops. Her recollection of what C said was that when the child had asked for one, the appellant had either said he would give her something to suck on or that he would give her a lollipop and had taken her into the bathroom, where he put his penis in her mouth. She was sure that C had used the word “penis”.

The defence case

15. The appellant gave evidence in his own defence. He said that there was an occasion in the period before C’s mother came to live with him when she was going shopping and asked him to look after the two boys, A, who was only a week or so old, and B. His own two sons were also with him. C was not there. His mother had come to the house and helped him look after A. At that time, the toilet in his house was in the bathroom. It was not until 2011 that a separate toilet was installed. He had never put his penis in C’s mouth. There was an occasion when he had a novelty lollipop in the shape of a penis in his fridge; he recalled C finding the object and saying, “Look, I’m sucking [the appellant’s] doodle”.

16. In cross-examination, the appellant said that throughout his relationship with C’s mother, he had had contact with her children, but he maintained that he had never had C in his care. His recollection was that the novelty lollipop incident had occurred in 2009.

17. C’s mother gave evidence that she had had a relationship with the appellant after separating from her husband, but went back to live with the latter for a period in mid-2009. At that time she was already pregnant to the appellant with the child A, born on 15 January 2010. She left her husband again in late February 2010. In the period during which she had resumed cohabitation with her husband, she had gone shopping with her friend Vanessa in Toowoomba. She was able to say, by looking at her bank statements, that it was on 20 January 2010, because on that day she had withdrawn $1000 to buy items for the children’s return to school.

18. On that day, C’s mother said, she had left C at a childcare centre in the country town where they lived, gone to the bank and withdrawn the money, and then gone to the appellant’s house and dropped the boys A and B there. She was, she admitted, driving unaccompanied on a learner’s permit. She, X and Y and her oldest son went to Vanessa’s house, where they collected Vanessa and her daughter. The group went into Toowoomba, with Vanessa driving, and bought things needed for the children’s schooling. On their return that afternoon, they reversed the morning’s order, dropping Vanessa and her daughter first, then retrieving A and B from the appellant’s house before picking C up from the childcare centre.

19. C’s mother had gone shopping to Toowoomba with Vanessa on only one occasion between the time that A was born and when she left her husband, and she had not done so at all before A was born. The only other occasion on which she had gone shopping to Toowoomba with Vanessa, X and Y was a much more recent occasion, and C had accompanied them.  On that occasion they had shopped at Clifford Gardens.  C’s mother said that on one occasion when she was at the appellant’s house with C and A, C had found a lollipop in the shape of a penis and announced that she was “sucking [the appellant’s] doodle”.

20. In cross-examination, C’s mother said that she was not in the habit of asking people to look after her children unless she paid them to do so. While she was living with her husband, because of his possessiveness, she did not go shopping with friends, except on the single occasion when she was allowed to shop with Vanessa for school items. C had never told her anything about the appellant’s putting his penis in her mouth.

21. Vanessa was called in the defence case. She said she recalled shopping with her friend, C’s mother, on 20 January 2010. She remembered it because she had started a two day a week job the previous day, which was also her husband’s birthday. She had driven C’s mother’s car both ways between her house and Toowoomba. The participants in the shopping excursion were herself, C’s mother, X, Y, the girls’ older brother and her own daughter; she did not know where C was that day. She was able to trace from her bank statement various transactions she had made in Toowoomba. She had made only two shopping trips to Toowoomba shopping with C’s mother and X and Y. The other occasion was later in 2010 and they were accompanied by C and her own daughter.

22. In cross-examination, Vanessa recalled that C’s mother had given birth five days before the January 20 shopping trip. She particularly remembered the day because of the pressures involved in managing the children and buying school shoes for the boy, who had his own views about an appropriate brand. It was not put to her by the prosecutor that the shopping excursion on 20 January had not happened as she described, or that there was some other occasion while C’s mother was pregnant when she went to Toowoomba with her, X and Y. All that the prosecutor did put to her appears in the following exchange:

“And, as best friends, you would have shopped lots of times before, wouldn’t you? You’re best friends?

---Yes but not before that time, not before she gave birth to Shelby we weren’t shopping as much.

Not as much?

---No.”

Other than that, the prosecutor asked Vanessa whether the appellant and C’s mother were her friends and whether she did things to help her friends, to both of which she replied in the affirmative, and secured her agreement that memories did not always get better with time.

23. The director of the childcare centre where C’s mother said she had left C on 20 January 2010 confirmed that C’s mother had signed her in that day and she was in care between 8:10 am and 5:40 pm.  The child had been attending the centre for some time and, as at January 2010, was being cared for there three days per week.  That evidence was entirely unchallenged.

24. The appellant’s mother gave evidence. She recalled that very shortly after A’s birth, her son telephoned her at work and she obtained leave to go to his house to see the baby. She had previously seen A only briefly on the day he was born. As well as the baby, her son had with him the child B and his own two sons. She spent one or two hours in the morning at her son’s house. C was definitely not there.

The Crown case as left to the jury

25. At the close of the defence case, there was some discussion between the trial judge and counsel about when the offence was said to have been committed.  The prosecutor said that the Crown case was that the offence happened when C’s mother was pregnant, on the day of a shopping trip with Vanessa to “town”, by which she no doubt meant Toowoomba.  That was consistent with the recollection of both X and Y that C’s disclosure to them and their mother was made after a shopping trip with Vanessa, which on Y’s account happened while the latter was pregnant with A, and C’s statement that the incident and her disclosure of it occurred before A’s birth.  Consequently, it was necessary that the Crown prove an offence which happened before 15 January 2010, because that was the date of A’s birth.  The case was left to the jury on that basis.

26. In accordance with the position she had earlier taken, the prosecutor’s contention in her closing address was that 20 January 2010 was not the only relevant shopping day. That was, she suggested, known from Vanessa’s concession as to other shopping and from the fact that X and Y said there was another shopping excursion when they were at a different shopping centre. There might have been a shopping trip on 20 January, but it did not matter because it was not the relevant trip.

The submissions on appeal

27. The appellant’s contention was that since Vanessa’s evidence of having made only one trip to Toowoomba with X, Y and C’s mother, but without C, was not challenged and the childcare centre director’s evidence was that on the same day C was in her care, it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.  That evidence established in combination that it was impossible for him to have committed the offence.  Y had said, consistently with Vanessa’s evidence, that the shopping trip occurred during the school holidays and X had confirmed that there were only one or two such trips.

28. Vanessa should be regarded (it was submitted) as an independent and credible witness. She had given a cogent explanation for how she remembered the date of the shopping excursion and was able to match it with withdrawals on her bank statements, which were tendered.  Her evidence was supported by that of C’s mother, but unlike the latter, she was at arm’s length from the family.  Counsel for the appellant emphasised that the allegation by C should be treated with care because she was only three years old.  It was suggested that because the adults to whom she had made it clearly did not take her seriously, there was some cause for concern about it.  It was not necessary for the appellant to establish that C, X and Y were wrong; the question was simply whether Vanessa’s evidence raised a reasonable doubt.

29. A number of the submissions made by the respondent’s counsel reflected points which the prosecutor might very usefully have made at the trial in cross-examination and address.  He contended that it did not follow that Vanessa was lying when she said that she only undertook two shopping trips to Toowoomba with C’s mother and their daughters; she may have been wrong about the date.  Her bank statements showed that over the period of a month she made transactions on eight different days in Toowoomba.  C’s mother’s bank statements showed she quite often made large cash withdrawals, so the fact of the $1,000 cash withdrawal on 20 January was not particularly significant.  It would be virtually impossible to be confident as to what the particular cash withdrawal concerned.

30. It was not necessary that the prosecutor ask Vanessa if there had been an earlier trip when C’s mother was pregnant, because she had already said that there were only the two shopping trips with C’s mother and her older daughters. It was open to the jury to conclude that Vanessa might have been mistaken about the shopping trip of 20 January being a joint shopping trip (a suggestion not made by the prosecutor at trial), or, alternatively, that she might have been mistaken in thinking that there were not other such trips. The shopping day would have been memorable to X and Y because of C’s complaint, whereas Vanessa had not had to recall it until 2013, in circumstances where she had frequently been to Toowoomba shopping. The jury was entitled to prefer the evidence of X and Y and to conclude that Vanessa and C’s mother were either mistaken or untruthful about the journey to Toowoomba on 20 January being their only shopping trip to Toowoomba undertaken without C.

Conclusions

31. I have watched the footage of the interviews and pre-recorded evidence of C, X and Y. The three children all appear credible, although there is some cause for concern in the fact that X and Y appear not to have been asked for their recall of events until at least three years after C’s complaint was said to have been made to them.  The greater difficulty is that Vanessa’s evidence was not challenged in any way by the prosecutor.  It was not suggested to her that she was wrong about shopping with C’s mother and her daughters on 20 January 2010; it was not suggested that she was mistaken when she said that the only two shopping trips with those participants were that one and a later one; it was not put to her that there was an earlier shopping trip when C’s mother was pregnant; and it was not suggested to her that any aspect of her evidence was untrue.

32. Although the respondent’s counsel contended that it was unnecessary to put those propositions to Vanessa in light of her evidence that there were only two shopping trips, had she been asked, she might have been able to give more grounds for her recall of those involved in the 20 January trip, or compelling reasons for being confident she had not gone to Toowoomba with C’s mother when the latter was pregnant. The broad suggestion put to her about their having shopped in the past was a classic example of being willing to wound, yet afraid to strike. Nothing about this aspect of the case was pointed out to the jury; although it must be said that defence counsel sought no direction as to the significance of the Crown’s failure to challenge Vanessa’s evidence.

33. The rule in Browne v Dunn is not rigorously applied to an accused in a criminal trial,^[1] but there is no reason to deny its application to the Crown, which bears the onus of proof.  The fact that Vanessa was not cross-examined did not oblige the jury to accept her evidence, but it did go to its weight and mean that it could more readily be accepted.^[2]

34. In M v The Queen^[3] it was said that:

“… 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.”^[4]

35. Paying due regard to the jury’s advantage, it is nonetheless difficult to see how it could properly have rejected Vanessa’s evidence or regarded it as not at least raising a reasonable doubt as to the appellant’s guilt.  There was nothing inherently implausible in what she said and nothing was put to her, or otherwise raised by the Crown, which would detract from its cogency.  If her evidence were correct, it was impossible for the offence to have been committed on the scenario relied on by the Crown.

36. In light of the defence evidence as a whole, and, in particular, the effect of Vanessa’s evidence in underpinning it, the jury should have entertained a reasonable doubt as to the appellant’s guilt. Consequently, the verdict must be regarded as unreasonable. I would allow the appeal, set aside the guilty verdict and substitute a verdict of acquittal.

37. DALTON J:  I agree with the reasons and the order proposed by Holmes JA.