R v Holzinger[2016] QCA 160

SUPREME COURT OF QUEENSLAND

1. PHILIP McMURDO JA:  The appellant was tried upon an indictment containing nine counts of sexual offending against the same complainant, a young girl under his care.  He was convicted on most of those charges, including three charges of rape for which he was sentenced, as required by s 161E(2) of the Penalties and Sentences Act 1992 (Qld), to terms of life imprisonment.^[1]
2. He appeals against the convictions for rape upon two grounds.  The first is that a miscarriage of justice was occasioned because the jury was not directed to consider alternative verdicts of attempted rape.  The second is that the verdicts were unreasonable.  He also appeals against his conviction, upon another count, of an offence of indecently dealing with the child.  His argument there is that the verdict was inconsistent with his acquittal upon another of the charges.
3. The appellant had also applied for leave to appeal against sentence, but abandoned the application at the hearing.

The evidence at the trial

4. The complainant was born on 7 July 2005.  She was aged four to seven at the time of the offences alleged by counts 1 and 2 and aged seven or eight at the time of the other counts.
5. Counts 3 to 9 were alleged to have occurred at a house occupied by the complainant’s grandmother.  The grandmother and the appellant had a longstanding friendship.  He did not live in this house but he was often there when the complainant visited and when she sometimes stayed overnight.
6. The first complaint was made in November 2013, when the complainant told her aunt that the appellant had made her watch sex videos and had touched her in an area which the aunt described as her “private parts”.  The aunt had the complainant tell the complainant’s mother about this conduct.  According to her mother, the complainant said that the appellant had smacked her bottom, touched her “front bit” and put “his face in her private parts”.  The complainant’s mother spoke with a prison guard who then spoke to a police officer.
7. Consequently the complainant was seen by a doctor on 27 November 2013.  The doctor examined the complainant’s external genitalia and observed no swelling, bruising or signs of acute injury.  The doctor was not able to “visualise” the complainant’s hymen and did not perform an internal vaginal examination.
8. The complainant was interviewed by police on 3 December 2013 and again two days later.  In the course of these interviews she related the events which became the subject of counts 3 to 9.  Counts 1 and 2 resulted from what the complainant said when interviewed by police on 9 January 2015.
9. Count 3 was a charge of rape which was particularised as involving the digital penetration of the vulva.  This was the first of the relevant events to be discussed by the complainant in the first of her interviews.  Her description of the event was preceded by a more general account of repeated conduct by the appellant in the nature of his “touching” the appellant’s “private parts”, which the appellant went on to say meant her vagina.  In this incident, the complainant described walking into a room in which no one slept and which she described as “quiet room”.  No light was on at the time but the appellant was there and grabbed the complainant by her foot and caused her to fall to the floor.  He pulled her pants and underpants off and pushed her legs open.  She resisted but he was “too strong”.  She said that the appellant had put his hands on her private parts.  She went on to give this further description of what that involved:

“Ok, and can you tell me where you could feel his hands on your private parts? --- No

Ok and what happened when he touched your private parts? --- He put his finger in

Tell me more about that part --- I don’t know, I don’t know that part

How, how do you know that he put his fingers in? --- Because I could feel it

Tell me what you could feel? --- His fingers

That’s ok, you can tell me --- That’s all, that’s all

…

Where could you feel them? --- In my, in my um

It’s ok you can tell me --- In my private parts between my legs

…

So you said he put his fingers in --- Yeah

Where does that mean? --- In my vagina, that’s all I know

And, tell what you felt --- I felt his fingers

Yeah? --- That’s all

But how did it make you feel? --- Awkward”

The complainant described that she heard her grandmother approaching when the appellant told her to get dressed and to tell no one of what had occurred or she would get into trouble.

10. Count 4 was a charge that the appellant indecently dealt with the complainant, which was particularised as putting his face onto or near the complainant’s vulva.  This was alleged to have taken place in the same room, although on a different occasion.  The complainant described the appellant pulling her shorts and underwear down before, as she described it, “he put his face in … my private part between my legs”.
11. Count 5 was a charge of rape, particularised as the penetration of the complainant’s vulva by the appellant’s tongue.  The complainant described this incident as occurring within a few days or weeks or perhaps even a few months after the incident the subject of the previous count.  It also occurred in the same room.  The appellant pulled her pants and underwear down after which there was this description of what occurred:

“… then he puted his face in … And then he put his tongue in … Very, very, very hard … you know like a stick … I could feel like a stick … felt a bit like a stick but a bit softer, a bit like wet …

Tell me how you know that it was his tongue? --- Cause I could feel a bit of his lips … I could feel his lips were on and then his tongue came on …

…

And what part was his tongue and lips touching? --- My private part

…

What, what’s the other name, another name for that part where he’s? --- Vagina

…

Ok, tell me more about the tongue being in vagina --- I don’t know, I forgot that bit

What do you mean by that, tongue in the vagina? --- Like, like where, where people they sash it

Yep --- So make sure it’s clean so it doesn’t hurt”

12. Again in the same interview, the complainant described the incident which became the subject of count 6, a charge of rape which was particularised as the penile penetration of the complainant’s vulva.  She described hiding from the appellant as he came downstairs in the house, before he found her and pulled her pants down, after which (she said many times) he “put his dick in”.  She described to police this incident in terms which included the following:

“Ok, tell me everything about that … in as much detail as you can --- As much detail, that’s all the details …

… then he put his dick in

Mmhmm --- And that’s all of my information of everything

Ok, Mel and I weren’t there --- So you’re going to ask how did it feel?

How did it happen --- I don’t know how it

…

Tell us everything that happened from then on …

--- And then he just got his thing out and just, his dick out and then he just put it in, I was a bit tired that day so I didn’t really know what he was, yeah

…

--- He just put it in like a stick, like stab a stick in but he stabbed that thing in, his dick in, stab, stab, stab, stab, stab

Ok, so he stabbed it in like a stick --- Yeah, but he didn’t actually stab, he just putted it in … it felt like stabbed

Ok, so it felt like stabbed, tell me how many times --- One, the lick was one, the dick was one, the face was one, actually the face was two…

…

Mmhmm, so, I’ll just take you back sorry, you said put in in like a stick? --- Yeah, it felt a bit like a stick, it was so floppy

…

Put it into where? --- My va - this bit

And what’s that called again? --- Vagina

…

Ok, tell me what you felt when he put his dick in --- It felt floppy like a floppy egg but it wasn’t.

What do you mean by that? --- Right, pretend this was my egg and it had the yolk on it, you know the yolk you know that white stuff you can’t see, it’s slippery and then it felt like that and then he just put it in, on the top side it felt like that, but it was a bit harder and not cold”.

13. After two hours that interview was terminated by the police officers.  A further interview occurred two days later, in the course of which the complainant spoke of incidents which became the subject of counts 7, 8 and 9.
14. Count 7 charged the appellant with wilfully exposing the complainant to an indecent picture.  The complainant described an incident in the kitchen of the grandmother’s house, when the appellant grabbed her and made her look at still pictures on a laptop computer which was on the kitchen table.  She described the pictures as showing a boy and girl, whom she estimated were aged between 14 and 20.  She said that the boy was touching the private parts of the girl.  When asked “how he was touching her private parts” the complainant answered:

“Just touching it like normal like you already know, you might even done a few days ago.”  (An apparent reference to her earlier interview.)

Again she was asked to describe the touching and answered:

“So he was touching it like putting his fingers in”.

But more than once she said that this was not “underneath the pants” but “over the top” of the girl’s pants and that “the pants were on”.

15. Count 8 charged the appellant with indecently dealing with the complainant, which was particularised as his tapping on the complainant’s vagina with his hand on the outside of her clothing during a game.
16. Count 9 charged the appellant with unlawfully exposing the complainant to an indecent act, which was particularised as the appellant exposing his penis and trying to get the complainant to touch it.  She successfully resisted.
17. Some 13 months later, the complainant was again interviewed by police, when she related incidents which became the subject of counts 1 and 2.  These were said to have occurred when the complainant was in Cairns, where her grandmother was then staying with the appellant.
18. The complainant said that when the complainant and the appellant were in a caravan at this house, the appellant touched her between the legs with his hand and that he was “touching inside, not just on the outside.”  She added that “he was trying to put his private part in mine” and “making me, trying to make me touch it”.  She was asked to explain “more about inside” to which she answered: “well you know we have that outside bit, he was touching where I, um, pee” and that he: “was touching … the bit where, the bit where you have your line.”  This incident became the subject of count 1, a charge of rape which was particularised as the digital penetration of the complainant’s vulva.
19. The other incident, which became the subject of count 2, was said to have occurred on the same occasion.  Count 2 alleged that the appellant unlawfully exposed the complainant to an indecent act, which was particularised as exposing his penis and masturbating or appearing to masturbate.  She also described his attempt then to have her touch his penis which she was able to resist.
20. On all counts the prosecution case depended entirely upon the complainant’s evidence.  Her evidence consisted of the recordings of her three interviews and some pre‑recorded evidence, consisting mainly of cross‑examination.  There was no evidence called or given by the appellant.

The verdicts

21. On count 1, the appellant was found not guilty of rape but guilty of indecent dealing, indicating that the jury was not satisfied that there had been penetration on that occasion.  On count 2 the appellant was acquitted.  Because this incident was alleged to have occurred on the same occasion as count 1, it is submitted that there is an inconsistency between these verdicts which warrants the verdict of guilty on count 1 being set aside.
22. The appellant was found guilty of rape on counts 3, 5 and 6 and guilty of the charges on counts 4, 8 and 9.  He was acquitted of the charge on count 7.

Alternative verdicts on the charges of rape

23. The prosecutor suggested to the trial judge that his Honour should direct as to alternative verdicts of indecent dealing to the charges of rape.  It was said that this was necessary because if the appellant was convicted of rape, he would face a mandatory life sentence.  No doubt that submission was motivated by a sense of fairness to the appellant, but it did not provide a sufficient reason for alternative verdicts being left for the jury’s consideration.
24. His Honour correctly observed that it was the issue of penetration which made it appropriate to leave the jury with the option of convicting the appellant of an offence of which penetration was not an element.  His Honour referred to s 578 of the Criminal Code which provides, in part, as follows:

“(1)Upon an indictment charging a person with the crime of rape, the person may be convicted of any offence, if established by the evidence, defined in section 208, 210(1), 215, 216, 217(1), 218, 222 or 352.”

The offence of indecent treatment of a child under 16 is defined in s 210 of the Code.  In particular it provides that any person who unlawfully and indecently deals with a child under the age of 16 years is guilty of an indictable offence.^[2]

25. Alternative verdicts were therefore left on counts 1, 3, 5 and 6 and on count 1, the jury convicted on that alternative.
26. It is now argued that the jury should have been given a further alternative, which was that they could convict the appellant of an offence of attempted rape.  This is an offence by s 350 of the Code which provides that a person who attempts to commit the crime of rape is guilty of a crime.  It can be left as an alternative verdict according to s 583 of the Code, which relevantly provides:

“(1)Upon an indictment charging a person with committing any offence, the person may be convicted of attempting to commit that offence, or of attempting to commit any other offence of which the person might be convicted upon the indictment.”

27. It is argued that this alternative was open because of the possibility that the jury could not be satisfied that there had been penetration.  It is said that this is an alternative verdict which “fairly arose for consideration on the whole of the evidence”, so that a failure to leave this alternative deprived the appellant of a chance of an acquittal on counts 3, 5 and 6.
28. The terms of that submission derive from the judgment of Applegarth J, with whom Fraser JA and Jackson J agreed, in R v MBX.^[3]  Applegarth J there discussed, amongst other cases, the judgment of the Victorian Court of Appeal in R v Nous,^[4] where it was said that outside the particular context of murder/manslaughter, the following factors should be considered in deciding whether to leave a lesser alternative offence to the jury:^[5]

“(1)the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;

(2)reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;

(3)a real chance that the jury may convict the accused of the lesser offence; and

(4)a request by a party that the lesser alternative offence be left to the jury.”

After an extensive review of the authorities, Applegarth J said that the test in Queensland, according to the authorities in this state, was whether an alternative verdict “fairly arises for consideration on the whole of the evidence”, which he considered comprehended those four factors identified in Nous.^[6]  His Honour continued:^[7]

“There must be a real chance that the jury may convict the accused of the lesser offence, and such an offence will not fairly arise for consideration on the whole of the evidence if there is no evidence upon which a conviction for the alternative offence could safely be based.”

29. R v MBX was decided prior to the decision of the High Court in James v The Queen,^[8] which held that the duty of the trial judge with respect to alternative verdicts did not require a lesser alternate verdict to be left to the jury in every case.  Rather, it was held that outside the category of murder/manslaughter cases, the question is whether an instruction on an alternative verdict is necessary to secure the fair trial of the accused, according to the circumstances of the particular case.^[9]  It may be that R v MBX is not inconsistent with James, but the judgment of the High Court emphasises the need for the facts and circumstances of the particular case to be considered and for the essential inquiry to be upon the fairness of the trial.
30. The fairness, or suggested unfairness of a trial, is usually considered by appellate courts by reference to the interests of the accused.  But the rationale for directing a jury about alternative verdicts comes from a broader perspective.  In James,^[10] the plurality apparently agreed with the reasoning of Lord Bingham of Cornhill in R v Coutts as follows:^[11]

“In any criminal prosecution for a serious offence there is an important public interest in the outcome.  The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed.  The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves.  The objective must be that defendants are neither over‑convicted nor under‑convicted, nor acquitted when they have committed a lesser offence of the type charged.  The human instrument relied on to achieve this objective in cases of serious crime is of course the jury.  But to achieve it in some cases the jury must be alerted to the options open to it.  This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is.  Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client.  It is the ultimate responsibility of the trial judge.”

Lord Bingham continued:^[12]

“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support … by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial.”

31. Clearly the conduct of a fair trial may require an alternative verdict to be left although it is not requested (as it was not requested here) by counsel for the accused.^[13]  Clearly also it would not be conducive to a fair trial to leave an alternative verdict where the defence case may have been differently conducted had the possibility of that verdict been one which was raised at the outset of the trial.  The need to advise a jury about an alternative lesser offence comes from the risk, in the particular case, that a defendant who has committed only the lesser offence will either be wrongly convicted of the more serious offence or acquitted altogether.  Where those risks can be avoided by directing as to a particular alternative verdict, it will not be necessary to direct as to any other alternative.
32. In the present case, it is argued that the appellant was deprived of the prospect of an acquittal of rape by the jury not being told that they could convict him of attempted rape.  The real prospect of that alternative verdict being reached by the jury came from the issue of whether the element of penetration was proved.  I discuss below the appellant’s arguments as to what is said to have been the weakness in the prosecution case in that respect.  At this point it is unnecessary to discuss the relative strength of that case.  For the present argument, let it be assumed that there was a prospect, on one or more of these three charges of rape, that the jury would not be satisfied that there was penetration.
33. As the trial judge explained to the jury, if they were not satisfied that the element of penetration had been proved for a charge of rape, they were to consider whether the appellant was guilty of indecent dealing by touching “the vaginal area”.  It appears that it was by this reasoning that the jury convicted the appellant of indecent dealing on count 1.  This indicates that by leaving the alternate verdict of indecent dealing on each charge of rape, the trial judge avoided the risk that the appellant would be convicted of a greater offence than that which he committed.
34. Had the alternative of attempted rape been left to the jury, the trial judge would have instructed that attempted rape is an offence having an element which is not required for the offences of rape or indecent dealing, namely an intention to rape.  At least in theory, that made it less likely that the appellant would be convicted of attempted rape than of indecent dealing.  And practically speaking, there was nothing which made it more likely that he would be convicted of attempted rape than indecent dealing.  Consequently there was nothing which made it more likely that he would be acquitted of rape, if the jury was given the option of convicting him of attempted rape, than if the jury had only the option of a conviction of indecent dealing.
35. On one view at least, the offence of indecent dealing in this case was more serious because it carried a maximum penalty of 20 years imprisonment,^[14] whereas the maximum penalty for an offence of attempted rape was 14 years in prison.^[15]  Of course, the jury would not have been instructed as to the penalties.  It is submitted for the appellant that the jury might have understood the offence of attempted rape to be the more serious of the two.  Upon that premise, it is argued the jury might have acquitted of rape and convicted of attempted rape, had they been directed to consider that alternative.
36. In my view however, there was no real, rather than theoretical, prospect that an alternative of attempted rape would have made a difference.  The jury could not have misunderstood the gravity of an offence of indecent dealing being committed in relation to counts 3, 5 and 6.  And a conviction of indecent dealing would have been more likely than one of attempted rape.  That is not only because the offence of attempted rape required the proof of a further element.  More importantly, it is because on none of these counts did the evidence raise a real possibility that the appellant had intended to effect penetration but had not done so.  For example there was no evidence that the complainant, by resisting the appellant, had managed to prevent penetration being effected.
37. Because the jury was no less likely to convict of rape given the option of a verdict on attempted rape, it cannot be said that there was any miscarriage of justice by that option not being left.  The first ground of appeal must be rejected.

Unreasonable verdicts

38. It is argued that on each of counts 3, 5 and 6, it was not open to the jury to be satisfied that penetration was effected and therefore, that the offence of rape had been committed.  The factors which it is said should have left the jury in doubt were as follows.  When she was interviewed in December 2013, the complainant was aged eight years and her descriptions of the relevant events indicated the absence of a clear discrimination between the outside and the inside of her genitals.  It is said that her description of what she saw in the picture which was the subject of count 7 was telling, because there she used similar language to that which she used in describing what was done by the appellant, although the girl in the picture was said to have been clothed.  This was said to indicate that her evidence as to penetration was to be given little weight.  Her preliminary complaint to her mother did not refer to penetration and she was at least equivocal in that respect in her preliminary complaint to her aunt.  And the medical evidence was neutral on the question.
39. As to that first factor, it is said that her interview in January 2015 reveals a clearer appreciation by that time about her genitals than at the time of the earlier interviews.  Her description of the acts which became the charge of rape in count 1, as related in that January 2015 interview, was certainly less probative of the fact of penetration.  However having read the transcript of the relevant interview in December 2013 (and, with the appellant’s agreement, viewed the videotape of the parts of that interview to which the court was directed by the respondent’s submissions), I consider that the complainant showed a sufficient understanding to make reliable what she said about penetration.
40. The complainant’s evidence as to the picture, the subject of count 7, is clearly relevant.  Her description of what she saw on the computer screen was unconvincing, as the jury found it to be when acquitting the appellant on count 7.  The fact that this evidence was given was relevant to her credibility, or at least reliability, upon other counts.  But it did not require the jury to doubt that she had an understanding of her genitals which was sufficient for her to give reliable evidence as to counts 3, 5 and 6.  The jury could have reasoned that she was simply unreliable in relation to the incident which was alleged in count 7.  The jury could well have thought that she would have a clearer recollection of what had been done to her, than of what she had seen momentarily on a computer screen.
41. The fact that her preliminary complaints did not detail the acts of penetration was also relevant but not telling.  The jury could have reasoned that it was only when she was pressed to recall as much as she could of these incidents that she saw fit to describe them as she did in the police interview.
42. In my conclusion, it was open to the jury to be satisfied beyond reasonable doubt that penetration was effected as it was alleged in counts 3, 5 and 6, so that it was therefore open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.^[16]

Inconsistent verdicts

43. It is submitted that the acquittal on count 2 cannot be reconciled with the guilty verdict on the alternative to count 1.  The two offences were alleged to have been committed on the same occasion and it is said that there was no material difference in the quality of the complainant’s evidence between the two counts.  Therefore, it is argued, a doubt about count 2 should have been reflected in an acquittal on count 1 and its alternative.
44. The respondent argues that there was a material difference in the quality of the evidence between these counts.  Early in the interview of January 2015, the complainant said that the appellant was trying to make her touch his penis.  She then gave a lengthy description of acts which became the subject of count 1, after which the interviewer returned to the subject of the appellant’s attempt to have her touch his penis.  What the complainant then said was unclear on the question of whether the appellant masturbated in front of her, an act which was an element of count 2 as particularised.  This made the evidence of count 2 relatively weaker than that of the alternate of indecent dealing on count 1.  In my view the appellant’s submission that there was no material difference in the quality of the evidence cannot be accepted.
45. Where there is said to be an inconsistency of verdicts, the basis for the intervention of an appellate court is that the outcome is suggestive of error.  The effect of the appellant’s argument is that there is an inconsistency here which suggests a compromise of the performance of the jury’s duty or a confusion in the minds of the jury.^[17]  That cannot be accepted once the difference in the quality of the evidence is understood.  It was open to the jury to convict of indecent dealing on count 1 although unpersuaded, on lesser evidence, of count 2.

Conclusions and order

46. In my view each of the grounds of appeal should be rejected.  I would dismiss the appeal.  The application for leave to appeal against sentence will be refused.
47. MULLINS J:  I agree with Philip McMurdo JA.
48. DOUGLAS J:  I also agree with Philip McMurdo JA.