R v Carr[2015] QCA 14

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Jackson J and the order proposed by his Honour.

[2] GOTTERSON JA:  I agree with the order proposed by Jackson J and with the reasons given by his Honour.

[3] JACKSON J:  On 13 September 2013, the applicant and appellant (“the appellant”) was convicted of a single count of unlawfully and indecently dealing with a child under 16 years who was under 12 years after a four day trial, including more than a day of jury deliberations.  He was sentenced to a term of imprisonment of 10 months, suspended after five months with an operational period of two years.  He applies for leave to appeal against conviction and appeals the conviction.

[4] The alleged offence occurred on 7 October 2012 at Bellmere.  The complainant was then 11 years of age and in grade six at primary school.  During the afternoon of that day, together with her mother and younger sister, she went to the house of two family friends.  There was a social gathering in the evening, attended by approximately half a dozen adults and some other children.  From late afternoon or early evening, some of the adults were drinking.  In the evening, there was a barbeque and a fire was lit in an upturned satellite dish outside the house for the enjoyment of all.

[5] According to the mother’s estimate of time, at about 10 o’clock at night the complainant and her younger sister went to bed in a spare bedroom within the house.  The bed was described in evidence as a sofa bed or folding bed.

[6] There was a hallway outside the spare bedroom.  The toilet and bathroom were nearby.  Some of the adults who used the toilet during the evening checked on the girls in the bedroom.

[7] Again according to the complainant’s mother’s estimate of time, at about 11.30 pm, or so, the complainant’s mother was in the hallway going towards the toilet when she met the complainant.  She asked the complainant what she was doing up.  The complainant said that the appellant had come into the spare bedroom where she was sleeping, rubbed her back and then grabbed her on the bum or backside.  The complainant’s mother was shocked.  She asked one of the family friends to get the girls and then went after the appellant, who was in another bedroom.

[8] While the complainant’s mother confronted the appellant, the family friend looking after the girls was in the spare bedroom and spoke to the complainant.  The complainant said that the appellant had come into bed with her and touched her lower back and bottom.

[9] At about 3 am the police were called.  The time of the call suggests that the estimates of time for the earlier events may be inaccurate.  Police attended the scene promptly.  It was arranged that on the following day the complainant would attend a police station to be interviewed.

Inconsistencies

[10] In the afternoon of 7 October 2012, Snr Constable Unwin interviewed the complainant.  A video recording of the interview was admitted into evidence under s 93A of the Evidence Act 1977 (Qld) as part of the evidence at the appellant’s trial.  The complainant said that the appellant came into the bedroom and he:

“… sat on the bed and he started like patting me and rubbing me. And then he sort of like, like grabbed my bum and like felt my bum and stuff. And then after, and I rolled over and then he got up and he walked out …”

[11] Later in the interview, she returned to the subject as follows:

“Um, he came in and he sat on the bed, and then he started like rubbing me, which I thought was quite strange, but I didn’t want to say anything like until he went … like and then he sort of started like getting more, and he started like grabbing my bum and stuff, and then I turned over like as if to say go away …”

[12] After repeating the expression “grabbing my bum and stuff” or a variation of it on two further occasions, later again she said:

“And he started to get like in between my legs and that’s when I rolled over”

[13] And again:

“And he just started like trying to like grab like just like grab um, my vagina.”

[14] The complainant’s descriptions of what occurred during the video-recorded interview were consistent with the appellant moving his hand from the complainant’s back (she was lying on her front on the bed) and moving down to a point between her legs from behind.  However, in cross-examination during her pre-recorded evidence taken under s 21AK of the Evidence Act 1977 (Qld) she gave a different account.  In particular she said:

“Well he touched my bottom, and then he slipped his hand under me, and then touched my vagina.”

[15] That scenario was reinforced by the following questions and answers:

“Okay. And you’re absolutely certain that he touched you on the front of the vagina? --- Yes.

It wasn’t from the back when he was touching your bum – your bottom? --- No.

It was definitely – he put on of his hands under your side or stomach, and then touched your vagina? Is that right? --- Yes.

You’re absolutely sure about that? --- Yes.”

[16] The complainant was asked when she told her mother she had been touched on the vagina, as follows:

“Okay. And you told your mother immediately, did you, that [you had] been touched on the vagina? --- Yes.”

[17] The complainant’s mother’s evidence was that after the police had left in the early morning she spoke again to the complainant about what had happened.  The complainant said that the appellant had tried to touch her vagina by words to the effect that he was moving his hand towards the complainant’s vagina, but not that she had said that he touched it.

[18] There were some other inconsistencies as between the complainant’s evidence and the evidence of the complainant’s mother’s and the family friends who had been present during the events when the complainant’s mother had confronted the appellant.

[19] The appellant’s original ground of appeal is that the verdict was “unsafe”.  In the language of s 668E of the Criminal Code, it is that the verdict is unreasonable or cannot be supported having regard to the evidence or there was a miscarriage of justice.  The appellant relies on a number of inconsistencies in the evidence to make out this ground of appeal.  First, his counsel relies upon the inconsistency between the complainant’s evidence of the appellant touching her from behind and trying to grab her vagina, as given at the police interview, and her evidence at the pre-recording that the appellant had put one of his hands under her side or stomach and touched her on the vagina.  When faced with the inconsistency, the complainant said:

“He touched my vagina. I don’t know where. He touched my vagina.”

[20] Second, the appellant relied on the inconsistency between the complainant’s evidence that she told her mother immediately that she was touched on the vagina and the complainant’s mother’s evidence that she had said that after the police had left, well after the initial conversation.

[21] Third, the appellant relied on the inconsistency between the complainant’s evidence that she had told her mother that the appellant touched her on the vagina and her mother’s evidence that she did not say that the appellant got to her vagina.

[22] There were other matters that the appellant submitted were inconsistencies in the complainant’s evidence.  They include whether the appellant was wearing thongs or shoes, the complainant’s description of the appellant’s shirt and whether she went to the toilet before or after the incident of which she complained.  None of them was of any moment, in my view.

[23] On this ground of appeal, the question is whether it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt upon the whole of the evidence.  The appellant and the respondent both rely on MFA v The Queen[1].  The appellant’s contention is that the discrepancies summarised above show that the evidence is tainted or otherwise lacks probative force in such a way that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.  The respondent submits that consideration of the appeal based on this ground involves a function to be performed within a system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused.

[24] Thus, the appellant submits an objective view of the inconsistencies means that there is a significant possibility that the appellant has been convicted of the offence of indecent dealing by touching the complainant’s vagina when it was not open to find that beyond reasonable doubt, whereas the respondent submits that the inconsistences are not more than the expected variation in language and manner of disclosure by a young child.

[25] Although the inconsistencies must be looked at as a whole, in my view, they do not lead to the conclusion that there is a significant possibility that an innocent person has been convicted, with one possible exception.  The possible exception is that on the day after the offence the complainant described the appellant’s actions as touching her from behind, by moving his hand down her back and between her legs, whereas when, about a year later, she described the appellant as having moved his hand underneath her and touching her from the front.

[26] A second point is that the language used by the complainant on the evening of the offence in speaking to her mother and in the interview with police on the following day is possibly consistent with the appellant moving his hand towards the complainant’s vagina from the rear but not actually making contact with her vaginal area.  In that context, it must be borne in mind that the prosecution’s case, as particularised, was of touching or contact on the complainant’s vaginal area.

[27] It must be borne in mind also that the only evidence before the jury as to whether the appellant touched the complainant in the vaginal area was that given by the complainant, in the context of the evidence of preliminary complaint made to her mother and one of the family friends.  There was no contradictory evidence.

[28] In my view, notwithstanding the inconsistencies, or the context, it should not be concluded that there is a significant possibility that an innocent person has been convicted.  Accordingly, in my view, the appellant does not make out this ground of appeal.

Direction as to absence of a motive to lie

[29] By amendment, the appellant added a further ground of appeal that the learned trial Judge failed to adequately direct the jury on the question whether the complainant had a motive to lie.

[30] The learned trial judge directed the jury, in part:

“For example, it might be thought in a case, perhaps in this case, that there is no evidence of why the complainant might lie. It’s not for the defendant to establish why the [complainant] might lie. And the prosecutor said she had to be lying. Let’s call it for what it is, or words to that effect. It’s not necessarily true, of course. First of all, you don’t make a finding the defendant is lying when you bring in a verdict of not guilty were you to do so.

You’re simply not satisfied to that standard which is called beyond a reasonable doubt. That is the standard of proof and it rests on the prosecution as I’ve just said. There may be other reasons why you might be left in a reasonable doubt …

So even although you may think there’s no evidence as to why the complainant might not be truthful, that is no reason for you to say, ‘Well, we can’t think of a reason why she might lie so it’s more likely the defendant is guilty or the defendant is guilty’, or use the absence of a motive to lie to add it to the prosecution case. You cannot do that at all. The burden of proof rests with the prosecution always…”

[31] Later his Honour said:

“So a submission made to you by the prosecution, which is fairly made, [is] how could a child of 11 make up a story?

It's not suggested she's made up the story, necessarily, but it may well be that she has exaggerated or has it grown, grown through all sorts of circumstances. And as I point out to you, the defence don't have to show why that might have occurred …”

[32] The appellant submits that the prosecution’s submission is no different from posing the question in submissions: “Why would the child lie?”  His counsel submits that is impermissible: R v Ross[2].

[33] The appellant’s counsel submits that describing the prosecutor’s submission as “fairly made” reduced the impact of the earlier summing up that the appellant did not have to establish why the complainant might lie.  He further submits that the reference in the summing up to exaggeration or other causes suggests to the jury that something did happen when an alternative scenario was that nothing happened.

[34] However, at trial, the appellant sought no redirection either as to the sufficiency of the direction overall or that it was not for the appellant to establish why the complainant might lie or as to whether there was a reasonable doubt that nothing had happened to the complainant notwithstanding what she had said.

[35] The respondent submits that the prosecutor’s submission in the present case that it was not open on the facts to conclude that the complainant was an honest but mistaken witness was a rational analysis of the state of the evidence and is to be contrasted with a submission that the jury should accept that the child is telling the truth because of the absence of a reason why she would lie.

[36] The prosecutor had submitted to the jury that:

“If this child is a liar and if the allegation is a lie – and make no bones about it, if this didn’t happen she is a liar – then what stops her from making it up as she wishes…”

[What] 12 year old do you know who could manufacture a false allegation so sophisticated that it is consistent with human recollection? The part she stays consistent with is the touching…”

[37] In my view, although the distinction may be a fine one in some cases, the submission by the prosecutor in the present case was not a submission that the jury should reason on the basis that it was for the defendant to explain why the complainant might be telling lies.

[38] In any event, the learned trial judge’s direction pointed out to the jury that a verdict of guilty or not guilty did not necessarily involve making a finding that a party is lying and that the defendant did not have to establish why the complainant might lie.  It is unfortunate that the learned trial judge mistakenly referred to the “defendant” lying in relation to bringing in a verdict of not guilty, when in context he must have meant “complainant”.  However, it is unlikely that the jury were in any way misled.  That follows from the tenor of the directions overall and because there was no version given by the defendant before the jury, whether by record of interview or by giving evidence.  So there was no basis for the jury to mistakenly think that the trial judge was referring to the defendant’s account or version of events as a lie.

[39] Equally, in my view, the learned trial judge’s direction did not indicate to the jury that the possibility that nothing may have happened to the complainant was not open to them or one that they should consider.

[40] For those reasons, in my view, the appeal against conviction should be dismissed.