R v SCH[2015] QCA 38

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Philippides JA and the orders she proposes.

[2] PHILIPPIDES JA:  Background The appellant was acquitted after a trial in the District Court at Gladstone of one count of rape and convicted of an alternative count of indecently dealing with a child under 12 years under his care (s 210(1)(a), (3) and (4) of the Criminal Code).

[3] The complainant child, M, the biological daughter of the appellant, was born on 5 January 2009.  She was three and a half years old at the time of the alleged offences and initial interview by police and four and a half years at the time of her pre-recorded evidence.

[4] The offences of rape and indecent treatment with circumstances of aggravation were charged in the alternative.  The charge of rape (count 1) was alleged to be constituted by penile penetration of the complainant’s vulva.  The charge of indecent treatment with circumstances of aggravation (count 2) was left for consideration in the event that the jury had a doubt as to whether penile penetration was proved and was alleged to be constituted by some type of contact between the penis of the appellant and some part of the complainant’s body or some other touching by the appellant of the complainant’s body.

[5] The acts said to constitute the alternative offences were alleged to have occurred on a night that M and her older sister, J (born on 17 March 2006 and also the biological daughter of the appellant), stayed at the appellant’s home not long before M’s complaint on Monday 13 August 2012.  The two girls had stayed with the appellant from Friday 5.00 pm to Sunday 5.00 pm and Tuesday 4.00 pm to 7.00 pm, pursuant to court orders allowing access.

Ground of appeal

[6] The ground of appeal against conviction agitated before this Court is to be regarded as a contention pursuant to s 668E of the Criminal Code that the verdict of guilty of count 2 was unreasonable and cannot be supported by the evidence.

[7] In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.[1]  In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred.[2]  However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[3]

[8] This Court must, therefore, undertake “an independent assessment of the evidence, both as to its sufficiency and its quality”[4] in accordance with the principles to which I have referred.

Evidence at trial

[9] Police interviews with M were recorded on 13 August 2012 and 20 May 2013 and the recordings were admitted into evidence during the trial pursuant to s 93A of the Evidence Act 1977 (Qld).  A recording of a conversation on 13 August 2012 between an examining medical practitioner, Dr Mawer, M and M’s maternal grandmother was also admitted pursuant to s 93A of the Evidence Act.  In addition, a police interview on 13 August 2012 of J, who was aged six years at the time of the alleged offences and interview, was admitted pursuant to s 93A of the Evidence Act.  Both M and J gave pre-recorded evidence under Part 2 Division 4A of the Evidence Act on 1 August 2013.

[10] The witnesses called by the prosecution were:

(a) CMP, the mother of M and J and estranged partner of the appellant;

(b) TJM, who shared a house with the appellant at or about the time of the alleged offences;

(c) Senior Constable May, the principal investigating police officer; and

(d) Dr Mawer, the medical practitioner who examined the complainant on 13 August 2012.

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

[12] The following is a summary of the evidence given.

The complainant’s evidence

[13] When interviewed by police on 13 August 2012, M gave the following account:

“I stay at my dad’s and I have a sleepover – he puts my bits into his bits ...  I was still awake with the TV off I was getting new nappy then he did it...

…I was in my dad’s room and I – naked...  And I was just laying down and he did it ...  He put my bits and then he did this, he put it into my bits.”

(In the context of the whole of the evidence, including that of M, her sister and mother, it is plain that the reference to “his bits” and “M’s bits” was a reference to their respective genitalia.  M’s later reference to J’s bits is also to be understood in that way.)

[14] M said that when it happened “it was night-time” and that she “was still asleep ...  And he then he did it”.  When asked to say “what [her] dad did”, she replied, “It’s what boys and girls do...  Um, they put their bits into boys’ bits”.  M was asked what “bits” she was talking about and replied, “Brown... and big”.  When asked “So tell me more about the brown and big thing”, M said, “Um, there was sauce in it”.

[15] After further questions, M said:

“… I was watching a movie...  And I was just saying ‘Press play, Daddy.  Press play, Daddy.’...  He got naked... he was getting me in trouble, ‘Get into bed, Darling’...  He said it again...  And again...  I was lay down then I wet the bed... he was telling me to lay down and go to sleep...  He just was putting his hands up and he was gonna smack me...  I was laying down then he said it again and again and again...  He just said, ‘I see you on Monday’...  And I not coming – and I not going back there...  ‘Cause Mum said so.”

[16] When asked about “what was brown and big and had sauce on it”, M said, “Um, it was white” referring to the “sauce”.  She also said that her “bits” were red and pointed to her lower body, “[r]ight in there”.  She said her father asked whether she liked it or not and that she said she did not.

[17] M was asked what she used her “bits” for and said she “stuck it on his”.  She was asked what she meant by “his” and answered, “‘Cause there’s milk – ‘cause there’s sauce coming out...  Yeah, and I’m not allowed to touch boys’ bits”.  When asked to tell more, M said, “Um, he said ‘If you don’t settle down...  I’ll put all the lights out’”.  M said that the appellant said, “You’re not gonna watch more movies”.  She said she “was at the doctor’s ‘cause Daddy hurt these...  My dad’s putting his bit”.

[18] When asked “tell me more about Daddy’s bits”, M said, “The TV was off.  Then all the lights off...  Then I was really, really, really scared...  ‘Cause I – I still have nightmare...  I saw alien was there and… then an alien kissed me.”

[19] M was asked again to tell everything she could “remember about Daddy’s bits” and replied, “Um, he said ‘Well, lay down, Darling.’ ...  I was laying down then my eyes was closed...  Then he said ‘Darling, it’s day time’… I go to my mum’s.”  When asked again to tell more “about your daddy’s bits”, M said:

“Um, I was just um in the bathroom... and I was floating the boats then I was walking out to Dad and there was someone knocking on the door... Then he said ‘Be quiet, Darling.’... Then he said – he gave me my bottle...  And I want – I want to pick up [J]... Then all the lights were off [again]... Then he just said, ‘Darling’... ‘If you don’t settle down I’ll smack your bum.’”

[20] M was asked where J was when M’s “bits” went into the appellant’s “bits”.  M said J was present in her “dad’s room” and going to sleep.  When asked how it felt when her “bits went into ... daddy’s bits”, M replied that it felt “[h]ard...  It hurted in here” and her “bits” were red.  She said that her “daddy’s bits” looked “[b]rown” and “his bits were big...  Um, they were – got a little hole”.  M followed this by saying, “Then he went out, then he said ‘Darling, please stop follow[ing] me’”.  She said she did not say anything when her bits went into the appellant’s bits.  When asked if the appellant said anything, M answered that he said, “Lay down, darling.”  She said it was her dad’s bed she was lying on.

[21] M said that her “bits” went into her “daddy’s bits” on “Tuesday”.

[22] After talking about some other matters, M was asked to tell more about the “white sauce”. M said, “It was just so gross...  ‘Cause I didn’t like it”.  She said the “white sauce” came from “Dad’s bits” and went “Um, into Dad’s bits” and “In my ones...  Into my bits”.

[23] M was asked “did you touch dad’s bits at all” and answered, “Yes.” M was asked to “tell more” about what she had touched.  Although M answered, “His big long ones” the police officer then asked, “So how did you touch his big long one?”, M answered, “With my fingers”.  M was later asked, “when you said you touched your dad’s bits it was the big long one”, to which M agreed.  (The question was another leading question, which, in referring to “big long one” instead of “big long ones”, did not reflect M’s earlier answer.)  When asked why she “touched [them]”, she said, “’Cause he was showing me... He said ‘Touch them.  Touch them’”.  M said that when this happened J was also in her dad’s room. M said she ran away to J and said “No, no, [J]”.  She did that because “[J] was going to...  Stuck on it ... [on] His bits”.  When asked whether “[J] was stuck on [her] dad’s bits”, M agreed it was on his “boy bits”.

[24] During the course of the medical examination of M by Dr Mawer, there was a conversation that also involved Senior Constable May and M’s maternal grandmother.  M was asked to explain the reason she was at the doctor’s and what had happened.  She answered, “Um, Dad put my bits in his bits”.  She said she “went to my dad’s and...  He said, ‘Get into bed’ ... I was at Dad’s and I was gonna sleep ... And he said ‘Go to bed, darling’...  And then he said ‘Go to bed’ again … again and again and again”.  M indicated she would not go to sleep.  M was then asked, “And did it hurt” and replied, “Really hard”.  She was asked if she told “Daddy to stop.” M answered she “said” it another day.  M was asked if “Daddy [had] his clothes on”.  M said that her father had no clothes on and she was wearing her day time clothes (after having had a bath) but no underwear, as she was getting a nappy.

[25] The following are extracts from a second period of cross-examination of the complainant during her pre-recorded evidence on 1 August 2013:

“Okay.  Well, tell us this, then: Tell us, did you say that – did you say that daddy had done something, to the police? ---Yeah.

Can you remember what it was you said daddy had done? ---Yes, now I can.

Okay, tell us what it was? ---He hurt me from doing naughty stuff ... And he put my bits into his bits.

Put your bits into his bits? ---Yes.

What do you mean by that? ---He thinks I was an adult, but I wasn’t, I was still a little kid, but I thought ---

Is – okay, well ---? ---and I’m still a little kid.

… I know you said that he thought you were an adult, but just forget that for a moment and tell us what it actually was that dad did? ---He put my bits into his bits, that’s the truth.

What do you mean, my bits into his bits, you tell us what that means? ---It means if you – it means if you’ve been naughty and you might get in big trouble and you might get sent to jail.

Oh? ---That’s what it means.” (emphasis added)

[26] M was asked about what “bits” she was talking about:

“Oh, I see, but – but – what bit are you talking about, what bits? ---His bits are brown.

…

Okay, but … what did dad do with the brown thing? ---He got sauce out---

Right---? ---of there.

Right? ---And then he put my mouth through his bits.

Oh, I see? ---That’s all that happened at all.

Tell us – tell us about that, tell us about that bit about your mouth? ---He put his sauce into my mouth---.

Oh, yeah? ---and then he did it to my sister, but he just---

Yeah, did---? ---his – he only put his bits into my sister’s and then he put the rest of them and then he went back to sleep.

Okay, so if we can just talk about you for a moment? ---Yes.

So where were you when this happened? ---At my dad’s house.

Okay, and were you in the kitchen? ---No, in his room.

In his room? ---Yeah, I was – the light was off---

Yes? ---and everything was – but – then ---

Was it daytime, sorry, sorry darling, was it daytime or night time? ---Night.

Was it dark? ---Yes.

And the light was off? ---Yes.

Could you see---? ---And then--­

--- could you see anything? ---Yes.

Right. But it was dark with no light? ---Yes.” (emphasis added)

[27] M was then asked about what she saw the appellant do to J:

“Okay. And you saw him put his bits – or you – you saw – you saw him do something with [J] too, did you? ---Yes.

And what did he do---? ---But---

---sorry, but---? ---he put his bits into his sister’s and that’s all that happened.

Okay, so---? ---And then---

---was your---? --- and I don’t know the rest.

…

Thank you. So where was your sister – that’s [J] you’re talking about, is it [J]? ---Yes.

Okay. Where was [J] when you say this happened?

…

Um, [J] was at my Dad’s house too.

Okay. And whereabouts was she when this happened? Was she in the kitchen? ---No, in my Dad’s room.

Okay. And was she standing up, running around or lying down? ---No, lying down.

Lying down? ---On the bed.

And did she have her pyjamas on? ---Yes.

And she never – you didn’t see her pyjamas come off? ---No.

Okay. So she kept her pyjamas on the whole time? ---Yeah, and my Dad took them off.

Your Dad took them off? ---Yes.

So did you see Dad take her pyjamas off? ---Yes.

Right. Did you watch that? ---Not all of it.

Not all of it. And the light was still off? ---Yes.

And it was still dark? ---Yes.

Was it very dark? ---Yeah.

Okay. And what happened after your Dad took her pants off? ---Um, I don’t know.

Well, you said that- you said that he put his – or she put – he put his bits on her bits or in her bits, did he? ---Inside her bits.

Okay. And did you see that happen? ---No.

No. Well, how do you know that it did? ---Um, ‘cause I just know.

You just know? ---I wasn’t – I was not looking.

You weren’t looking? ---No.

…

Okay. So how did you know that Dad put his bits into [J]’s bits if you didn’t see? ---Um, oh, I was peeking.

Peeking, even though it was dark? ---Yes.

I think you might be telling a fib about that, … , are you? ---No.

Are you telling a lie about Daddy putting his bits in [J]? ---No, I’m telling the truth.

Okay. But you weren’t looking? ---No.

You were peeking? ---Yes.

What did you see when you peeked? ---Um, my eyes are still closed right close, but my Dad tried to open them but---

He tried - okay, he tried to open ---? ---So ---

He tried to open your eyes, did he? ---Yes.

How did he do that? ---Um---

Did he - - - ? ---He - um - stopped being mean to my sister and then he tried to open my eyes with his hands.

And what about the white sauce, did you see it go on your sister too? ---Um, not all of it.

Not all of it. Just some, was it? ---Yeah, some.

Just some. And you were peeking and saw that as well? ---Yes.

Okay. And then – so some white sauce went on your sister. Then what happened? ---And then ---

Sorry? ---And he said, “Lay down and go to sleep. Lay down and go to sleep. Lay down and go to sleep. Lay down and go to sleep”.

Who did he say that to? ---Me.

Okay. But I think you told us that he put his bits into [J]’s bit first. Is that right? Was that before you---? ---Yes.

Before you or after you? ---It was me, but – um – then it was my sister.

Who – whose bits did he put his bits into first, yours or [J]’s? ---Mine.” (emphasis added)

[28] M was then cross-examined about what had occurred to her:

“… So – but did he put [his bits] in your girl bits or in your mouth? ---In my girl bits.

So not in your mouth? ---No.

Okay. So the white sauce went on your girl bits. Is that right? ---Yes.

But didn’t go on your mouth? ---No.” (emphasis added)

[29] M also said:

“Okay. And you say Daddy put his bit in your bits? ---Yes.

Or your bits – or your bits in his bits? ---Mine.

Your bits in his bits? ---Yes.

Okay. And did your bits go inside his bits? ---Yes.

Or did his bits go inside your bits? ---Um, his bits went into mine.

Okay. And did it go a long, long way? ---Yes.

Okay. Could you see his bit going into your bit? ---Yes.

You could? ---Yes.

All right. So how did the white sauce come out, do you know? ---Um, he put my bits into his bits.

Yeah. And did you---? ---And---

Sorry? ---And that’s all that happened.

Okay. So did your really see the white sauce or not? ---I really did.

You did? ---Yes.

And where did you see it? Where was it? ---From his – from his bit.

Okay. And did you see it come out, did you? ---Um, I only saw a little bit, that’s all.

A little bit. And it was---? ---That’s all that happened what I said.

Okay. And it was dark still? ---Yes.

Okay? ---Yeah.

And then after he had done that what did he do then? After he’d finished what did he do then? --­Nothing, that’s all.”

[30] M gave the following further cross-examination evidence concerning J:

“That’s all. So he – he didn’t – he didn’t put his boy bits into [J]’s girl bits? ---No, um, he did everything.

Okay? ---That’s all.

Okay. So he never put his boy bits in [J]’s girl bits? ---No, he did that and then to me and then---

He did? ---And then--­

Okay? ---And I saw that happen.

Okay. So it was [J] first, was it, and then you? ---No, it was me first.

And then [J]? ---Yes.

Okay. And when he did it to [J] did you see his boy bits go inside her girl bits? ---No.

You didn’t? ---No.

Well, how do you know that he did? ---Um, my Mum knows.

Your Mum knows? ---And---

Did Mum – did Mum tell you it happened? --- Yes, ‘cause she knows about everything.

Everything? --- Yes.

So did this really happen or did Mum tell you that it happened? ---Um, it really did happen.

Okay. I want you to think really, really hard – think really, really as hard as you can. Pretend you’re a big girl at school and think really hard. Could this ---? ---Um, I

Maybe this was a dream, [M]? ---No, it wasn’t.

It wasn’t? ---It was real.

Real. Even though it happened in the dark? ---Yes.

But you could still see? ---Yes.

…

Okay. So when you say that Dad’s bits went inside your bits---? ---Yes.

- -- did you fell anything when that happened? --- Yes.

What? What did you feel? ---His bits.

Okay. And did it go a long way inside? ---Yes.” (emphasis added)

[31] M denied ever seeing any movies of boys and girls “playing with their bits” on TV or otherwise in real life.  M was then cross-examined as follows:

“No. So how long was Daddy – did Daddy have his bits in your bits? ---For one minute.

One minute? --- Yes.

Okay? ---And my sister – my sister’s bits were stuck on to my Dad’s.

They were stuck on? --- Yes.

I was going to ask you about that. Tell us what that means? ---It means if something’s stuck on someone and they can’t take it off.

Okay? ---That’s what it means.

And how do you know it was stuck? ---Um, I was sleeping and I – um – know in my – in my head.

Okay. So when – when you say Dad put his bits in [J]’s bits you were asleep? ---Um, I think the word into my head.

Yeah. But you were asleep, darling, were you? ---Yes.

Okay. And you think that that happened because you can see it inside your head? ---Yes.

Okay. So a bit like a dream? ---Yes.

Yeah. And maybe – is it the case that you think it happened to you and you were asleep as well and it went inside your head? ---Yeah.

So you were asleep when it happened, were you? ---Yes.

To you as well as [J]? ---Yes.

And you just have it inside your head and it’s like it’s real? ---Yes.

Yeah. A bit like the ghost rider? ---Yes.

And a bit like the zombies? ---Yes, a bit like all the nightmares.”

(emphasis added)

[32] After a short break, cross-examination was resumed and M was asked questions about distinguishing between dreams and real life:

“Okay. So you were telling us just before we had a bit of a rest that – that you know something happened to [J] because it’s inside – you pointed to your head – inside your head, right?-­-Yes.

But you didn’t really see it, right? ---No.

Okay? ---No.

And is it the case that you didn’t really see what happened to you either? ---No.

And it’s just inside your head like a dream? ---Yeah.

Okay. Now, when did this dream – dream-like thing happen, this thing like a dream, when did it happen – how old were you? Three? ---Yes.

…

All right. Was this thing like a dream on that day, or was it another day before that? ---It was a dream.

Okay. All right. This dream didn’t really happen in real life, did it? ---No.

No, daddy never did anything to you that was naughty, did he? ---Yes.

But – but it was in---? ---He---

... I’m sorry – I’m sorry, I didn’t – go on, darling, I didn’t mean to interrupt you? ---It was a big ginormous dream.

A big ginormous dream, so, just let me finish – I was going to ask you one more question and I was just going to say that this was a big ginormous dream, not something real, was it? ---No.” (emphasis added)

[33] During re-examination, M gave the following evidence about “dreams”:

“Okay. Now, you were asked questions about a dream or a big ginormous dream, can you tell us what a dream means? ---It means if you have nightmares or dreams and if it’s real or not real, it still is real, that’s what it means.

Okay? ---It means that.

Now, you were – you spoke about – or you were asked questions about whether the – what daddy had done that you told the police officer about was a big ginormous dream, do you remember telling the other man, David, about that just before? ---Yes.

…

When – when you told the police about what happened with your bits and your daddy’s bits? --­Yeah.

…

Okay. Now, when you were talking about – and when this happened with your daddy’s bits and your bits? ---Yeah.

Okay, you know what I’m talking about? ---Yeah.

Okay. Were your eyes open or closed? ---Closed.

Okay, and you said also whether you didn’t really see what happened, do you remember saying that to the other man, David, just before? ---Yes.

Can you tell us whether you could feel what was happening? ---I – it felt like it was a dream and it was a dream.

And why do you say that? ... Because it’s a real dream.

[M], do you know the difference between real or pretend dreams, is there a difference?--­ Yes, and if they’re not real – if they are real, and if they’re fake you might get in big trouble and [indistinct].  If you don’t tell the truth, which I am telling the truth, you won’t get in trouble if you tell the truth and you don’t. Dreams are real, and yeah.

Okay? ---Every night I try to make a wish.

Okay, so you said dreams are real? ---Yes.

…

Okay.  Now, in these – when you talk about dreams? ---Yes.

Okay.  I just wanted to ask you when – what time or when do you have these dreams? ---Very, very, very late.” (emphasis added)

The evidence of the complainant’s sister

[34] During her interview on 13 August 2012, J said that, when she was walking to school, M told her that “we shouldn’t go to dad’s any more ‘cause... she got hurt a little but it’s not hurting any more”.  J was asked to “tell… everything” about the conversation with her sister.  J explained:

“Well, she was – she was half awake and half asleep... And she had to – she just stayed up too late... And Dad was up too late too... and then [M] needed to go to the toilet and she got back in there and she saw him naked...  So she ran to me and said ‘Wake up’...  And I saw ... And she like – she like said Dad get back dressed and he did.”

[35] J also spoke of M waking her up and saying that she had had a nightmare.  J said, “I couldn’t hear her and then she walked into my dad’s room and she got tired and then she had to go to the toilet with him.  He was naked”.  J said it was on Monday (the next morning after the night in question) that M had told her, “Daddy hurt me last night”.

[36] J’s evidence was that her dad had never done anything to her that she didn’t like.  (During her pre‑recorded evidence, J also confirmed that the appellant had never done anything bad to her, had never done anything to or touched her “girl bit” or put anything inside her “girl bit”.)

The evidence of the complainant’s mother

[37] M’s mother gave evidence of a preliminary complaint by M which was significantly inconsistent with her police statement.  In particular, she gave evidence that M told her that “her girl bits were sore” and that “Daddy made me eat the white sauce ...  The white sauce from the little hole”.  When cross-examined as to the absence of mention of either matter in her police statement, she insisted that she had told the investigating officer, Senior Constable May, of M’s disclosure about soreness and claimed to have asked the same officer why the disclosure about “white sauce” had not been recorded in her statement.  She said that the reason given was that the police officer “didn’t think it would be necessary – wouldn’t hold with it, I don’t know.  I don’t really understand”.  When challenged about having told the police officer, M’s mother said she could not recollect from two years ago.  When challenged further, she said she was “pretty sure” she had asked her why the disclosures were not in the statement and added she had done so “recently” and eventually said she had asked “yesterday”. (That evidence was entirely contradicted by Senior Constable May, who gave evidence that she was the principal investigating officer with Senior Constable Townsend acting as her assisting officer.  Senior Constable May denied having had a recent conversation with the mother and said there was no prospect that Officer Townsend had done so, as she was stationed elsewhere.)

[38] Although M’s mother also gave evidence denying suggesting things to M, she indicated that M mentioned the “white sauce” “numerous amounts of time” as a result of her “questioning” M about what had happened.  M’s mother also agreed that there was animosity between her new partner and the appellant and that she would have liked to have prevented the appellant from seeing their children because of previous incidents.  She agreed that there had not been any previous incident or allegation by the children of sexual impropriety by the appellant towards them.

Medical evidence

[39] Dr Mawer gave evidence of the lack of any injury to M’s genitalia upon examination on 13 August 2012 which was inconsistent with any penetration of the hymen.

The submissions

[40] The appellant submitted that, in all the circumstances, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 2.  Even after making full allowance for the advantages enjoyed by the jury, there was a significant possibility that an innocent person had been convicted.  In making those submissions, the appellant pointed to inconsistencies and other difficulties in the evidence of M, her sister and her mother and to the lack of medical evidence to support M’s account.  The appellant relied, in particular, on the following circumstances as impacting on the reliability of M’s evidence:

(a) M’s young age and immaturity;

(b) the confusing nature of her account;

(c) M’s evidence as to her dreaming the alleged acts;

(d) what was said to be the demonstrably dishonest evidence of M’s mother concerning M’s initial disclosures in the context of animosity about the appellant’s ongoing contact with M and her sister;

(e) certain statements by M, which, it was said, were unlikely to have originated from the independent thoughts of the complainant;

(f) other aspects of M’s evidence, about her account of what the appellant did to her sister, that added to concerns as to possible coaching;

(g) the absence of medical evidence corroborating M’s account; and

(h) the lack of other evidence that corroborated M’s account in any substantial way.

[41] The respondent referred to the Crown Prosecutor’s argument in addressing the jury (as the learned trial judge summed-up)[5] that M’s memory of events in August 2012, very soon after the events in issue, was likely to be much fresher than when she gave evidence in August 2013 and that, in any event, her evidence remained essentially the same. The respondent also noted the prosecutor’s submissions before the jury that the specific details M had given could not be as a result of dreams or imagination but rather of experiencing the alleged event.  The respondent submitted that defence counsel did not put to M that the alleged events did not occur.

[42] The respondent submitted that relevant to the assessment of M’s evidence was that her cross-examination was disjointed and it would have been apparent to the jury that she was both tired and upset by the experience.  It was important to note that the jury asked to hear the s 93A tapes again, which they did along with the s 21AK recordings.  While it was for this Court to assess the evidence, it was reasonable for the jury to be satisfied that it could act on M’s evidence.  It was conceded, however, that given the nature of the case and the reliance by the prosecution on M’s evidence (and the support provided by her sister’s evidence of preliminary complaint) that the jury was in no better place than this Court to assess the evidence.

Discussion

[43] M was three and a half years old when she made the preliminary complaint to her mother, soon before being interviewed by police on 13 August 2012.  She gave evidence on an application under s 9A on the Evidence Act on 13 July 2013, at which time she was about four and a half years old.  She was judged by the judge hearing the competency application to be able to give an intelligible account of events in question.  The pre-recording of M’s evidence did not take place until the day following the s 9A application.  The cross-examination, while not especially long, was broken up and that may have affected the coherency of her evidence.

[44] Given that the Crown case relied almost entirely on M’s evidence, her reliability was a critical issue.  There were a number of inconsistencies in M’s evidence that went to the reliability of her account.  M’s statements in her pre-recorded evidence that the appellant “put [her] mouth through his bits” and that he “put his sauce into [her] mouth” were not mentioned by M in her s 93A interview and were retracted after further cross-examination in the pre-recorded evidence.  M gave inconsistent accounts as to the sequence of the appellant’s alleged interference with her and J.  M also gave evidence (contrary to her allegations that formed the particulars of the charges) that suggested that she went to sleep and then woke up with no intervening events occurring.  In that regard, she said at one stage that she recalled her father getting naked and telling her to get into bed:

“… [Lie] down and go to sleep.

… And then what happened?

…

He just was putting his hands up and he was gonna smack me… I was laying down… he said it again and again…  He just said ‘I see you on Monday’… and I [am] not going back there… ‘Cause Mum said so.”

[45] Similarly, when asked to concentrate and “tell… everything… that you can remember about Daddy’s bits”, she said that:

“… [H]e said ‘Well, lay down, darling.’

…So daddy said ‘Lay Down’, and then what happened?

I was laying down and my eyes were closed… Then he said ‘Darling, it’s daytime.’”

[46] Another matter, which called into question M’s reliability, concerned her account of the allegations of sexual abuse by the appellant of J.  Again, there were a number of contradictions.  M’s evidence was that she saw the appellant “put his bits into [her] sister’s”.  She seemed to indicate that the “white sauce” went into her sister also.  Later in her evidence outlined above, M accepted that she did not see the appellant put his bits into her sister’s bits, and when then asked how she knew that had happened to J, replied, “‘cause I know” but that she “was not looking”; she was “peeking”.  Later again, she confirmed she did not see the appellant “put his bits into [J’s] girl bits” and, when again questioned how she knew that the appellant did that, she replied, “My mum knows”.  When asked, “Did mum tell you it happened” she answered, “Yes. Because she knows about everything”.  As the appellant’s counsel argued, that evidence raised, as a real possibility, her suggestibility and that what M recounted initially, as an observed fact, then admitted she had not seen, was what her mother told her had occurred.

[47] The reliability of M’s evidence was also brought into question because of the stark inconsistencies between her evidence and that of J.  M’s evidence, that the appellant interfered with J in “dad’s room” when J was lying on his bed, was entirely inconsistent with J’s evidence that she and M had their own room at the appellant’s place and J’s evidence that she did not go into the appellant’s room at night.  But more fundamentally, it was inconsistent with J’s categorical denial (both in her s 93A interview and her pre-recorded evidence) that the appellant had ever interfered with her or done anything to her.

[48] The issue of M’s suggestibility (in the context of the reliability of her evidence) was raised in an acute way, as the appellant’s counsel argued, given her mother’s concession that, irrespective of any alleged sexual misconduct, she would have liked to prevent the appellant from seeing his children and her evidence which suggested she had questioned M extensively.  Furthermore, the mother’s own credibility was seriously undermined and rendered her evidence of no real assistance in terms of assessing M’s reliability.  The mother gave evidence that M’s preliminary complaint included that the appellant hurt her and made her eat white sauce.  Her explanation as to why neither of those matters appeared in her police statement was not credible.  Her claim that she had told police and had queried the investigating officer about the absence of such matters the day before she gave evidence was contradicted by Senior Constable May, as already mentioned.

[49] Also relevant, in this context, are M’s statement that the appellant “thinks I was an adult, but I wasn’t, I was still a little kid” and her explanation that putting “my bits into his bits” “means if you’ve been naughty and you might get in big trouble and you might get sent to jail”.  As the appellant’s counsel argued, both statements reveal insights which were unlikely to have originated from the independent thoughts of a child as young as M.  They would appear to be more consistent with M repeating things told to her by a more mature person.

[50] In considering the reliability of M as a witness, it is pertinent that J’s evidence was more contradictory of M’s evidence than corroborative.  In particular, as already mentioned, J emphatically denied that she herself was touched in any inappropriate way by the appellant.  The main aspect of J’s evidence that could be seen as being potentially corroborative was J’s evidence that she saw her dad naked at some point.  But, in considering the value of that as corroboration, it must be borne in mind, as mentioned, that M’s evidence was that J was present in her father’s room when the events in question occurred.  That was clearly inconsistent with J’s evidence as to where she slept and where, in fact, she saw M.

[51] The potentially corroborative aspect of J’s evidence of being woken and seeing her father naked must also be considered in the light of M’s other evidence of M being asleep and dreaming.  As the appellant’s counsel emphasised, the complainant’s evidence revealed that M had difficulties in distinguishing between dream and reality.  When questioned about the period immediately prior to the incident, M said she was “still awake with the TV off” and “getting a new nappy, then he did it”.  But later, she contradicted that account, saying “I was still asleep and then he did it”.  M accepted the proposition that she was asleep again in her evidence and that she “thought” it had happened to her (“And you just have it inside your head and it’s like it’s real”).  She accepted that it was “a bit like the ghost rider (a reference to a nightmare she described).  M admitted that she did not really see what happened to her and agreed that it was “just inside [her] head like a dream”.  She agreed that “this dream didn’t really happen in real life” and “It was a big, ginormous dream”.  She later reiterated, in re-examination, that when she told police about what happened with her bits and her “daddy’s bits”, her eyes were closed and that she “felt like it was a dream” and “it was a dream”.  When asked about the distinction between real and pretend dreams, M said:

“… [I]f they’re not real – if they are real, and if they’re fake, you might get in big trouble… If you don’t tell the truth, which I am telling the truth, you won’t get in trouble if you tell the truth and you don’t. Dreams are real…”

[52] The respondent submitted that this evidence, which raised the possibility of dreaming the alleged acts, occurred during the further cross-examination of M when it was apparent that she was either tiring and/or distressed.  The comments about the incident being a dream came in the third period of cross-examination.  Having viewed the evidence, I do not consider that M appeared troubled or distressed when giving the evidence in question, although it was clear that she wanted to conclude her evidence as soon as possible.  The evidence M gave that “it was a dream” severely weakened the Crown case.  When that matter is considered in combination with the other contradictions and inconsistencies mentioned, the weakness of the Crown case compelled the conclusion that there was a reasonable doubt that the appellant was guilty of count 2.

[53] For the above reasons, I have concluded, on the basis of my own independent assessment of the evidence, that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt on count 2.  Accordingly, the verdict should be set aside.  I would order that the conviction be quashed and a verdict of acquittal be entered.

Orders

[54] I would therefore order that:

1.The appeal be allowed.

2.The appellant’s conviction on count 2 be quashed.

3.A verdict of acquittal on count 2 be entered.

[55] DOUGLAS J:  I agree.