R v Bonner[2015] QCA 80

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Atkinson J’s reasons for dismissing this appeal against conviction.

[2] HOLMES JA:  I agree with the reasons of Atkinson J and the order she proposes.

[3] ATKINSON J:  The appellant was convicted of rape on 27 August 2014 and sentenced to two-and-a-half years’ imprisonment with eligibility for release on parole after having served 15 months of that sentence.  He has appealed against that conviction on the ground that, having regard to all of the admissible evidence, the conviction was “unsafe and unsatisfactory”.  That term is understood to refer to the ground expressed in the Criminal Code (Qld) of a verdict that is unreasonable, or cannot be supported having regard to the evidence.[1]  An application for leave to appeal the sentence was withdrawn.

[4] The “unsafe” verdict ground of appeal requires a court of criminal appeal to assess the evidence independently to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[2]

The evidence

[5] The complainant’s evidence-in-chief was given by way of a recorded interview with police, which was admissible under s 93A of the Evidence Act 1977 (Qld) as she was a child.  She was 15 at the time of the interview and 14 at the time when she alleged the offences occurred.  The jury saw a DVD of that evidence, so this court is in as good a position as the jury to determine questions of credibility based on her evidence.[3]  Her demeanour throughout the interview was of someone who was very uncomfortable having to tell her story, embarrassed about its contents, and disturbed and upset about the effect upon her of the events she described.

[6] Two of the complainant’s sisters are referred to in these reasons.  The first, who will be referred to as the complainant’s “older sister”, was with her on the night in question.  The second was in a relationship with the appellant at that time and will be referred to as the complainant’s “oldest sister”.

[7] In her evidence-in-chief, the complainant described an occasion in August 2012 when she and her older sister visited the residence where the appellant and her oldest sister lived.  The appellant was the partner of their oldest sister.  They went to the residence intending to visit their oldest sister, but she was not there.  The complainant said that the appellant was like an older brother to her because she had known him since she was a young child.  The complainant also said that, as her mother had five girls, she treated the appellant like an older brother to her daughters.  The complainant said that they had a meal with the appellant and then watched television.  The complainant and her older sister were lying down on either side of an L-shaped couch.  Her evidence was that she fell asleep and later woke up to the feeling of her older sister scratching her feet.  She was lying on one side of the couch and her older sister on the other, so that the complainant’s feet were close to her older sister’s head.

[8] The complainant said that when she woke up, she found that the appellant was on top of her.  Her older sister told her to pretend she was asleep, so she tried to do that, but when it became too much, she moved and pushed him off her.  He then left and went into the next room.

[9] When asked to repeat the story to give more detail, the complainant said that she had pretended to be asleep but the appellant’s hands were down her pants, his fingers were inside her vagina and he was trying to pull her pants off, so she turned on her side and faced the other way, pretending to be asleep.  When he persisted, she pushed him away.  She did not know what her older sister was doing while this was happening, but as soon as he left the room, the complainant started talking to her older sister about what had happened.  In the morning, their mother rang and the complainant told her what had happened.  The appellant had thrown money at her older sister for them to go home that morning.  The complainant said that she found it hard to find the words to tell her mother what had happened on the phone, so after they went home on the train, she told her mother again in person.

[10] The complainant said that since then, she has been trying to block it out, not remember it and make it as if it did not happen.  She said that she was a virgin and had never been touched by anyone but the appellant.  She described what she meant by his being on top of her as his hands being over the top of her in her pants.  She thought it was his right hand that was inside her.

[11] The complainant’s cross-examination was recorded on 13 May 2014 and played to the jury pursuant to s 21AK of the Evidence Act 1977 (Qld).  Again, this court is therefore in as good a position as the jury to evaluate the credibility and reliability of her evidence.  Nothing in her cross-examination undermined the evidence that she had given in evidence-in-chief.

[12] In cross-examination, the complainant said that she had gone to her oldest sister’s house with her older sister to get some money from her oldest sister for the next day.  She refused to answer the question as to whether or not she had gone there to get some drugs from her oldest sister.  She said that they were not planning to stay the night but did so because it was late and cold.  She refused to answer a question about whether she and her older sister smoked some cones of cannabis at the house.

[13] The complainant said that she was woken at about midnight with her sister scratching her feet and the appellant on top of her with his hands down her pants.  She said that she spoke to her older sister shortly after the incident and to her mother the next morning, but that she had been unable to tell her mother everything then because she was too emotional.

[14] At that point in the cross-examination, the complainant became distressed and was given a break by the judge.  When the court resumed, she said that she fell asleep in the clothes she was wearing – leggings and a long-sleeved top.  She said that she had fallen asleep on the couch after watching some of the Olympics on television, then woke up with the appellant’s hands down her pants.  He was kneeling on a mattress which was on the floor between the couches.  The complainant reiterated that she had continued to act as if she were still asleep and rolled over, but he kept his fingers inside her vagina and tried to pull her leggings down with his other hand.  She then pushed him away and he left the room.  She was frightened and her older sister said that she would watch out in case he returned.  When she got home, she told her mother that the appellant had molested her.  She did not go into any detail at that time because, she said, she was too emotional and she did not know how to talk about it.

[15] The complainant’s older sister, who was with her on the night of the alleged offence, also gave evidence.  She said that they had visited their oldest sister’s house to get “some money and some pot”.  Only the appellant was home when they got there.  She said she knew that her oldest sister would not be there and that the complainant was aware of that.  They had not known, however, that the appellant was going to be there.  She admitted to using cannabis that night.  She said that both she and the complainant had smoked cannabis that night but that she had smoked considerably more than the complainant.

[16] The appellant pointed to the differences between the complainant’s older sister’s evidence and that of the complainant.  Apart from some differences in detail her evidence was very similar to that of the complainant except that, of course, it was told from her point of view.

[17] The complainant’s older sister’s evidence was that she was lying on one side of the L-shaped couch and the complainant was lying on the other when they fell asleep.  She said that her head was on the complainant’s feet and she was woken by some tossing and turning of those feet.  She turned her head around and saw that the appellant had his hand under the complainant’s blanket.  He was leaning over the couch and had his hand under the blanket.  His hand was in a position below the complainant’s waist but above her knees.  The complainant’s older sister said that she thought that the complainant was still asleep, but this is hardly surprising as the complainant said herself that she was pretending to be.  The complainant’s older sister denied telling the complainant to pretend she was asleep.  That contradicted the complainant’s evidence on that point but it does not, in my view, damage the complainant’s credibility.  The difference suggests that one of them has had a lapse of memory.

[18] The complainant’s older sister said that when she saw the appellant with his hand under the complainant’s blanket, she kicked him to let him know that she was awake.  He then left the room and the complainant “freaked out about it”.  She said that they spoke to their mother that night, who told them to wait until the morning.  They did so, then they grabbed their things and the rest of the money that their oldest sister had left for them the night before, got a taxi to the train station and then a train home.

[19] The complainant’s mother’s evidence confirmed the complainant’s evidence that the telephone conversation she had with the complainant about the alleged offence was in the morning and that they had another conversation when the complainant got home.  The complainant’s older sister’s evidence as to the timing of that phone call is able to be explained by the fact that their mother, according to her own evidence, had called the previous evening to check on them after they had arrived at their oldest sister’s house.

[20] The appellant did not give evidence.

The appellant’s submissions

[21] The appellant submitted that there were inconsistencies between the evidence given by the complainant and by her sister and that the court should have a reasonable doubt about the appellant’s guilt on that basis.  The appellant also submitted that, given the state of the evidence, the jury ought to have harboured a doubt as to whether penetration was, in fact, effected or not.  In this case, the only evidence of digital penetration came from the complainant.

The respondent’s submissions

[22] The respondent conceded that, in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced and it is only where a jury’s advantage in seeing and hearing the events is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred: M v The Queen.[4]  The respondent submitted that all of the issues raised by the appellant were comprehensively canvassed before the jury.  Notwithstanding any inconsistencies, there remained cogent evidence in this case upon which it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

[23] The credibility and reliability of the complainant was a central issue in the trial.  Differences in recollection of the event between the complainant and her sister did not significantly undermine the credibility and reliability of the complainant’s testimony on the critical aspects relevant to the offence.

[24] The alternative basis for conviction of a lesser offence under s 210 of the Criminal Code (Qld) was not reasonably open on the evidence.  The testimony of the complainant on the issue of penetration was without ambiguity and the appellant’s counsel at the trial did not invite a direction on an alternative basis of conviction open upon the evidence if it was not accepted that penetration had taken place.

Consideration

[25] The differences between the evidence of the two sisters are relatively minor and in relation to peripheral matters.  They are entirely explicable by the length of time which passed between the incident and its being reported to the police a year later, the complainant’s reluctance to give evidence about cannabis use, the greater intoxication of the complainant’s older sister, and the different points of view that each had of the incident.  They do not, in my view, undermine the reliability and credibility of the complainant’s evidence as to what occurred.  Indeed, the complainant’s older sister’s evidence corroborated the complainant’s evidence in important respects, particularly regarding the occurrence of the offence.  The learned trial Judge addressed the issues now raised by the appellant in his detailed and careful summing up.  An alternative lesser offence was not reasonably open on the evidence.

[26] On appeal, the task of this court is “to make an independent assessment of the whole of the evidence, to determine whether the [verdict] of guilty could be supported”: SKA v The Queen.[5]  The assessment of the whole of the evidence in this case canvassed in these reasons supports the jury’s verdict of guilty.  Accordingly, the appeal should be dismissed.

Order

[27] The appeal is dismissed.