R v Phelps[2015] QCA 141

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  The appellant was found guilty by a jury of one count of rape (count 1) and one count of indecent treatment of a child with the circumstances of aggravation that the child was under 12 years and was in the care of the appellant for the time being (count 2).  He was found not guilty of one count of rape (count 3) and of two counts of indecent treatment of a child with the same circumstances of aggravation (counts 4 and 5).  The appellant appealed against the convictions on five grounds.  Two of those grounds were abandoned.  The remaining grounds of appeal are that the verdict of the jury was unreasonable, the verdicts of guilty were inconsistent with the verdicts of not guilty, and the trial judge’s directions to the jury about the defence case after the jury had viewed evidence admitted under s 21AK and s 93A of the Evidence Act 1977 were not balanced.

Grounds 1 and 2: the verdicts of the jury were unreasonable and the guilty verdicts are inconsistent with the not guilty verdicts

[2] It is appropriate to deal with grounds 1 and 2 together.  Senior counsel for the appellant described the essence of these grounds as a complaint that the convictions on counts 1 and 2 were unreasonable, the suggested inconsistency between those convictions and the acquittals on other counts being an aspect of that unreasonableness.

[3] Ground 1 raises the question whether the guilty verdicts are unreasonable.  In R v BCU [2014] QCA 292, I referred to the test which an appellate court must apply when considering this ground of appeal:

“[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.  [MFA v The Queen (2002) 213 CLR 606 at 614 – 615; SKA v The Queen (2011) 243 CLR 400 at 406 [14], 408 [21].]  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.”  [MFA v The Queen (2002) 213 CLR 606 at 623 – 624 quoting M v The Queen (1994) 181 CLR 487 at 525].”

[4] In conducting that assessment of the evidence it is appropriate to take into account the verdicts of acquittal insofar as they throw light on the reasonableness of the guilty verdicts.

[5] Ground 2 raises the question whether the guilty verdicts are inconsistent with the acquittals.  The Court will not jump to the conclusion that the verdicts are inconsistent.  In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ observed of cases involving alleged inconsistency between verdicts that the test was one of “logic and reasonableness” and that:

“…if there is a proper way by which the appellate court may reconcile a verdict, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”[1]

[6] At the time of the alleged offences the appellant was in a relationship with the complainant’s maternal grandmother.  The complainant was eight years old at the time of the offences alleged in counts 1 to 4.  She was eight or nine years old at the time of the offences alleged in count 5.  The complainant was nine years old when she participated in the recorded interview with police which was admitted in evidence under s 93A of the Evidence Act 1977.  She was 10 years old at the time of her pre-recorded evidence admitted under s 21AK of the Evidence Act 1977.

[7] The prosecution particularised counts 1 to 4 as having occurred in a car journey between specified places.  In relation to counts 1 and 3 it was alleged that the appellant had penetrated the complainant’s vagina or anus with his finger or fingers.  In relation to counts 2 and 4 it was alleged that the appellant touched the complainant’s breast or breasts.  Count 1 was alleged to have occurred shortly after the journey started and count 2 was alleged to have occurred directly after count 1.  On the Crown case the appellant continued to deal indecently with the complainant during the car journey.  Count 3 was alleged to be the final occasion of digital penetration and count 4 was alleged to be the final occasion of indecent dealing.  In relation to count 5, the prosecution alleged that during a subsequent car trip the appellant dealt indecently with the complainant when he tried to put his hand inside her underwear.

[8] The acquittal on count 5 is readily reconcilable with the guilty verdicts on counts 1 and 2, particularly because count 5 related to a separate occasion and the complainant’s evidence, which referred to the appellant “trying” to touch her, did not clearly establish that he did touch her indecently.  In relation to the ground of appeal that the verdicts were inconsistent it is therefore appropriate to focus upon the suggested inconsistency between the acquittals on counts 3 and 4 and the convictions on counts 1 and 2.  So much was accepted in argument by the appellant’s senior counsel.

[9] The appellant argued that the way in which the prosecution particularised the  Crown case and the evidence given by the complainant about the frequency with which the appellant touched her made it difficult to reconcile the convictions on counts 1 and 2 with the acquittals on counts 3 and 4; counts 3 and 4 were allegations to the same effect as counts 1 and 2 and were particularised as the last incidents of those kinds, so that the acquittals on counts 3 and 4 revealed that the jury doubted the reliability or credibility of the complainant’s evidence in a way which should have thrown doubt upon her evidence of the alleged offences particularised as the first examples of the same kind of offences.  In the submission for the appellant, all the jury had to do was to accept the evidence of the complainant that the appellant engaged in a continuous course of touching between the occasions particularised as the beginning of that course of touching and the occasions particularised as being the end of that course of touching; it followed, so it was submitted, that it was an affront to logic and common sense for the jury to be left in doubt as to the complainant’s truthfulness or reliability with respect to the concluding occasions whilst being satisfied beyond reasonable doubt of the complainant’s truthfulness and reliability with respect to the commencing occasions.

[10] The respondent argued that the convictions on counts 1 and 2 are reconcilable with the acquittals on counts 3 and 4 when regard is had to differences in the quality of the evidence as between counts 1 and 2 and counts 3 and 4 and to the trial judge’s directions to the jury.

[11] The Crown case depended upon the evidence given by the complainant.  In the complainant’s police interview she said that the offences occurred in the appellant’s car, which she described in some detail.  She said that the appellant touched her during the car trip, that he touched her on the part of her body used for going to the toilet, (“inside outside buttocks hole”) for a little while, and that he moved on to “here” (pointing to her chest).  The appellant said that when they got back that he had better stop because the adults would catch him.  The complainant was in the front passenger seat.  The appellant used his left hand (which was consistent with him driving the car), and he did not “just touch it” but also massaged it.  The appellant touched the middle of it and wiggled his fingers on it and things.  The complainant said that the appellant started touching her 10 minutes into the journey after her younger brother fell asleep (he was in the back seat of the car) and the appellant continued until they were almost home.  The complainant said that she had told her mother and grandmother what the appellant had done on the day before the police interview after a family meeting about the appellant breaking up with the complainant’s grandmother.  The complainant understood that she had to explain everything about it, including what she was scared of about the appellant and if he had done anything wrong.

[12] During the complainant’s pre-recorded evidence the complainant gave evidence that she realised that she had given police the wrong description of the car because her mother had told her.  The complainant then described a very different hire care.  The complainant was asked to clarify what she had told the police about where she touched.  She said that the appellant touched her inside and out of the part that she used to pee, she described how far inside the appellant touched that area and she said that she was touched on the breast underneath her clothing.  When the complainant was asked in examination-in-chief what she meant when she told police that the appellant was doing it the whole time until they were almost home she said that it was “like five minutes after we drove out of Brisbane…then he started doing it.  Then about five minutes before we got home he started doing it”.  When the complainant was asked whether there were two specific occasions or whether the appellant was doing it more than those two specific occasions, she said, “Well, there wasn’t two times apart he was doing it, he was doing it the whole time.”  When asked whether she was saying that the appellant was touching her around the area that she peed the whole time they were driving, she said, “Yes, and in it”.  When asked whether he touched her breast the whole time they were driving she said that “He did it a couple of times but not the whole time”.

[13] In cross-examination the complainant conceded that the car journey was broken by a stop at a service station when the three occupants got out of the car.  Her brother was asleep for the whole time except for the stop at the service station.  She agreed that she had been mistaken about the car and had forgotten about the stop at the service station when she spoke to police.  She confirmed that her mother had told her about her mistake about which car she had been in.  She maintained that the offences had occurred.

[14] The complainant’s mother gave evidence for the arrangements for the car trip and also gave evidence which was consistent with the complainant’s evidence about the family meeting.  She gave evidence that the complainant had made disclosures relating to all of the counts.  The complainant’s maternal grandmother gave evidence about the arrangements for the car journey which was generally consistent with the complainant’s mother’s evidence.  The complainant’s grandmother gave evidence that after the family meeting and a conversation between the complainant and the complainant’s mother the complainant made disclosure about counts 1 to 4.

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

[16] The trial judge directed the jury that counts 1 and 2 concerned conduct which was alleged to have occurred near the beginning of the car trip and counts 3 and 4 concerned conduct near the end of the car trip.  Both in the summing up and in a document which the trial judge supplied to the jury there was appropriate emphasis upon the obligation of the prosecution to satisfy the jury beyond reasonable doubt of the elements of those offences, which the trial judge explained were particularised by the Crown in the way I have described.  The trial judge also explained that it was necessary for the jury to deal with the charges separately:

“[Counts] 1 and 3, the allegation is similar but the timing is different; 2 and 4, the allegation is really the same conduct but the timing is different....  So you’ve got to consider each charge separately, having regard to the evidence that relates to that particular charge to decide whether you’re satisfied beyond reasonable doubt that the prosecution has proved its elements.  You will return separate verdicts for each charge.  The evidence in relation to the separate offences is different….  So it’s perfectly open for you to return different verdicts on different counts.”

[17] The trial judge directed the jury that if they had a reasonable doubt concerning the truthfulness or the reliability of the complainant’s evidence in relation to one or more of the counts the jury must take that into account in assessing the truthfulness and reliability of her evidence generally.

[18] As was submitted for the respondent, it was not clear from the evidence of the complainant whether the second time of the “couple of times”, (see [12] of these reasons) the appellant touched her breast was at the end of the car journey as particularised in the Crown case.  Furthermore, having regard to the complainant’s agreement in her pre-recorded evidence that there had been a break in the journey which she had not initially spoken about in her police interview, and also bearing in mind the complainant’s evidence which suggested that there was a continuous course of digital penetration by the appellant during the car journey, the jury might reasonably have considered that, whilst that the complainant’s detailed evidence that the appellant digitally penetrated her and touched her breast shortly after the journey commenced was very persuasive, the evidence that there was similar, separate conduct towards the end of the journey as the prosecution alleged was not as clear.  Upon the question whether there were separate incidents of digital penetration and touching of the breast at the end of the journey the complainant’s evidence was given in general terms and was in some respects confusing.  Paying heed to the trial judge’s directions and applying the demanding standard of proof emphasised in those directions, the jury’s verdicts of acquittal on counts 3 and 4 do not imply that the jury should have harboured a reasonable doubt about the reliability or credibility of the complainant’s evidence that counts 1 and 2 occurred as particularised in the prosecution case.  Rather, the differing verdicts are consistent with the jury having adopted a careful approach to the assessment of the complainant’s evidence and to the trial judge’s directions.

[19] The appellant argued that there were unsatisfactory aspects of the evidence in the Crown case which would justify the Court in setting aside the convictions on the grounds that they were unreasonable.  It was submitted that there were inconsistencies in the complainant’s evidence of penetration as between the account in the police interview and pre-recorded evidence and her preliminary complaints.  It was reasonably open to the jury, however, to find that her evidence was generally consistent.  The abbreviated form of the complainant’s statement in her police interview that the appellant touched her on the part of the body used for “going to the toilet…inside outside buttocks hole” was not necessarily inconsistent with her pre-recorded evidence that the appellant touched her in the area used to do a “pee”, “inside and out”, and “near her buttock hole”.  Whilst the evidence of the complainant’s mother and the complainant’s maternal grandmother about the terms of the complaints to them was in some respects given in more general terms, there was no significant inconsistency between that evidence and the complainant’s evidence.

[20] The appellant argued that a weakness in the evidence was that, on the complainant’s evidence, the appellant did not appear to be concerned that the complainant’s brother might see or hear anything untoward during the hours in the car when the offences were alleged to have occurred.  On the complainant’s evidence, however, during all of the offending the complainant’s brother was asleep in the back seat and the appellant might have known that.  The appellant emphasised the mistake which the complainant made in identifying the car in which counts 1 to 4 were alleged to have occurred.  The trial judge reminded the jury of defence counsel’s submission that this mistake was a very significant matter, and of the prosecutor’s submission that it was not central to the offending.  The trial judge also reminded the jury of the submission by defence counsel that it was significant that the complainant did not herself remember that she had got the car wrong but instead changed her evidence when her mother told her that she had got the car wrong.  Neither of these points necessarily affected the reliability of the complainant’s identification of the journey during which the alleged offences occurred.  It was not in issue at the trial that there was such a journey, during which the appellant drove the complainant and her young brother.

[21] The appellant also relied upon the complainant’s failure to mention that the car stopped at a service station and argued that the fact of such a stop was inconsistent with the complainant’s evidence of continuous offending by the appellant.  When this was put to the complainant she apologised for having forgotten it.  The jury might have taken this into account in acquitting the appellant of counts 3 and 4, but it did not require the jury also to harbour a doubt about the complainant’s graphic evidence of counts 1 and 2.

[22] The appellant submitted that an unsatisfactory aspect of the prosecution evidence was that the complainant first complained only in the context of family discussions which appeared to invite family members to make statements adverse to the appellant.  The jury could also take into account the complainant’s evidence that she did not make any complaint while the appellant was living in the same household because she thought that the appellant would know what she had said and she was scared of what would happen.  The jury could also regard the complainant’s credibility as deriving support from the circumstance that the terms of her complaint to her mother in response to non-leading questions were consistent with the complainant’s evidence.

[23] The appellant relied upon the fact that the complainant did not complain to her maternal grandmother about count 5.  This does not appear to be particularly significant given that, upon the complainant’s own evidence, the jury could conclude that the appellant did not indecently deal with her as alleged in count 5 and that upon the complainant’s grandmother’s evidence she did not ask the complainant about what the appellant had done on any other occasion.

[24] The points now agitated for the appellant were raised by defence counsel at the trial and referred to in the trial judge’s summing up in terms which did not attract any criticism.  It should be assumed that the jury took them into account and was nevertheless persuaded beyond reasonable doubt of the appellant’s guilt of counts 1 and 2.  That conclusion was reasonably open to the jury upon the whole of the evidence in the Crown case.  The guilty verdicts are not unreasonable and they are properly reconcilable with the acquittals on the other counts.

Ground 4: “The trial judge erred in not giving balanced directions to the jury about the defence case after the jury had viewed the s 93A and s 21AK of the Evidence Act (Qld) material for a second time during their deliberations.”

[25] The recording of the complainant’s police interview occupied about 12 minutes and her pre-recorded evidence occupied about 26 minutes.  The evidence and the addresses were completed within the first day of the trial.  The trial judge summed up to the jury for one hour on the morning of the second day of the trial.  There were no requests for further directions or re-directions.  About two and a half hours after the jury retired to consider their verdicts, the Court resumed and reference was made to notes received from the jury, including a request for the recording of the complainant’s police interview to be played to the jury again.  That recording was played to the jury.  The trial judge then gave the jury the following directions:

“I remind you of what I said during the summing up, that the only evidence you have about what happened as between the – between [the complainant] and [the appellant] is what [the complainant] says happened, either what she said to the police, what she said to her mother, what she said to her grandmother, what she said during her evidence that was recorded in Court.

Now, you’ve seen replayed what she said to the police, but bear in mind that there is also that other evidence of what she said to her mother, to her grandmother and what she said when she was examined and cross-examined in Court. So you’ve had one section of what she said replayed. Bear in mind that you must not give it disproportionate weight. Remember the other evidence that – that we have of what [the complainant] has said, and if you want to be reminded of any of that, just let me know.

I will specifically remind you of – of two areas of either inconsistency or significance about [the complainant’s] evidence that I want you to bear in mind, having replayed the 93A, the police interview. The first is the inconsistency about which – the description of the car that counts 1 to 4 are alleged to have taken place in. You’ll recall that during her evidence before the Court, she talked – that she gave a different description of the car and said that her mother had told her that she’d got the car wrong when she was speaking to the police. So there’s that. The other thing I’ll specifically remind you of is the other evidence that’s been given about the timing and the circumstances in which she made her complaint to the mother and the grandmother. Just bear in mind both the evidence about that and the arguments that have been put to you by both counsel in their addresses to you.”

[26] Those directions were consistent with submissions which had been made to the trial judge for the appellant.  The appellant did not contend that they were insufficient or inappropriate.

[27] About one and a half hours after the jury resumed its deliberations, the Court resumed to consider a request from the jury for the complainant’s pre-recorded evidence to be played a second time, together with evidence concerning penetration in the police interview.  The trial judge read to the jury relevant extracts from the police interview and played the recorded evidence to the jury.  That occupied about 40 minutes in total.

[28] Defence counsel then sought a re-direction.  He told the trial judge that he and the prosecutor agreed that the trial judge should warn the jury again “not to give disproportionate weight to the fact that they have seen the s 21AK tape for a second time, just out of an abundance of caution and in accordance with those recent authorities”.  The jury was brought back and the trial judge directed the jury that, “just as I said to you when you watched the police interview, be careful that you don’t give disproportionate weight to the pre-recorded evidence that you have just watched because that’s the last thing you’ve seen.  You must always put the evidence in the context of all of the evidence that you’ve heard.”  The trial judge inquired whether everything needed that evening had been dealt with.  Defence counsel and the prosecutor said that it had.  The jury retired to consider their verdicts at 5.10 pm.  They returned their verdicts the following afternoon.

[29] The appellant argued that defence counsel’s request for a direction warning the jury not to give disproportionate weight to the pre-recorded evidence “in accordance with those recent authorities” implied that the request was not only for a direction which warned the jury against giving disproportionate weight to the complainant’s pre-recorded evidence but also for additional directions which reminded the jury of the detail of the competing evidence.  That submission is inconsistent with the omission of defence counsel and the prosecutor to ask the trial judge to give those additional directions after the trial judge gave the initial re-directions.

[30] In an analogous case, R v SCG[2], Morrison JA referred to statements in various cases to the effect that in cases of this kind it will usually be necessary for trial judges to warn juries against giving disproportionate weight to a child’s evidence replayed for a second time to the jury and to give redirections identifying evidence favourable to the accused and highlighting evidence which did not support the complainant’s account.  Morrison JA observed:

“…Each case depends upon its facts. In each case, the overriding consideration must be fairness and balance, giving rise to the need to guard against the risk that undue weight might be given to a complainant’s evidence where it is played a second time without a warning, or where no reminder is given to the jury about the competing evidence. In making a judgment about that question various factors will be relevant, including: the time that has elapsed after completion of the defence evidence; the time that has elapsed since the conclusion of the summing up; the character of the complainant’s evidence, including the manner in which it is given; the course of the trial, in particular the stage of deliberations that the jury has reached; and the length of time that the relevant evidence occupies. In terms of the need to remind the jury of the defence evidence, one factor might be the manner in which that evidence was given; where that is relevant it is likely to have been a matter referred to by the Crown in their address. No doubt there are other matters that may arise.

However, these are all merely points for consideration in assessing the overall question which is whether fairness and balance requires that the warning be given and/or a reminder given to bear in mind and appropriately weigh the defence evidence. In circumstances where those warnings will be necessary because all or part of a complainant’s evidence will be replayed a second time, the need to remind the jury of the competing defence evidence may well require, depending upon the circumstances, repetition or summarising of relevant parts of that evidence, and possibly comment upon the manner in which the evidence was given.”

[31] In this short trial in which the aspects of the evidence upon which defence counsel relied were put to the complainant in the cross-examination in the pre-recorded evidence, clearly identified in defence counsel’s address, again brought to the jury’s attention in the summing up, and again brought to the jury’s attention in the trial judge’s direction upon the replaying of the police interview, the trial judge’s warning and directions upon the replaying of the pre-recorded evidence were sufficient to avoid any risk of unfairness to the appellant arising out of the pre-recorded evidence being played to the jury again.

Proposed Order

[32] The appeal should be dismissed.

[33] GOTTERSON JA:  I agree with the order proposed by Fraser JA and with the reasons given by his Honour.

[34] FLANAGAN J:  I agree with the order proposed by Fraser JA and with the reasons given by his Honour.