R v Vlies[2016] QCA 276

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Philippides JA and with the reasons given by her Honour.
2. PHILIPPIDES JA:  The appellant appeals against his convictions for a number of sexual offences and seeks leave to appeal against the sentences imposed.
3. The appellant was convicted by a jury on 26 June 2015, after a five day trial on a 10 count indictment of: one count of maintaining a sexual relationship with a child (count 1); one count of indecent treatment of a child under 16 and under 12 (count 2); two counts of indecent treatment of a child under 16 (counts 3 and 7); two counts of attempted rape (counts 4 and 5); one count of rape (count 6); two counts of taking indecent photographs of a child under 16 (counts 8 and 9); and one count of possessing child exploitation material (count 10).
4. For that offending, charged as occurring between 1 May 2003 and 7 February 2013, the appellant was sentenced to five years imprisonment in respect of count 1, two years imprisonment for counts 2-5 and 7-10 and three years imprisonment for count 6.  These sentences were ordered to be served concurrently with each other but cumulatively upon sentences imposed on 7 May 2015 for distinct offending in 2012 and 2013.  The May 2015 sentences were imposed in respect of a conviction for one count of maintaining a sexual relationship with a child and two counts of indecent treatment of a child under 16 and under 12.  For that offending, the appellant was sentenced to two years and nine months imprisonment, to be suspended after serving 16 months.  The effect of making the present sentences cumulative upon the earlier sentences was that the parole eligibility date was set as 7 March 2019 (being after two and a half years imprisonment from the present sentence had been served).

Appeal against conviction

5. The ground of appeal alleged in the notice of appeal was that the verdicts of the jury were unsafe and that there had been a miscarriage of justice.  There were six matters raised in that regard:
   1. the admission of the preliminary complaint evidence;
   2. the effect of medical evidence concerning the appellant;
   3. the inconsistencies in the complainant’s evidence;
   4. errors in the trial judge’s directions;
   5. the duration of the jury’s deliberations; and
   6. the lack of medical evidence to support the complainant’s account.

The evidence

6. The offences that were the subject of the 10 count indictment were alleged to have occurred over a period of two and a half years.

The complainant’s evidence

7. The complainant was born in January 1996.  On 17 August 2011, she gave a statement in accordance with s 93A of the Evidence Act 1977 (Qld).  That statement was tendered at trial and, in addition, the complainant gave evidence before the jury.  The primary evidence in support of the charges was based on the complainant’s s 93A statement.  She was also cross-examined.
8. The complainant said that she and her mother met the appellant through S, a close family friend.  She and her mother would visit the house of the appellant and his wife and stay for a few days at a time at their house.  Some months later, the complainant and her mother moved into the appellant’s house.^[1]
9. The complainant gave an account of having “growing pains” and that her legs were sore.  The appellant said he was a “professional masseuse” and that he could make her “legs feel better”.  The complainant’s evidence was that, after the third massage, the appellant started touching her sexually in a variety of ways every time he massaged her.  Her evidence was that this occurred in a room with the door closed and “barricaded”.^[2]  The massages stopped when the complainant and her mother moved to the Sunshine Coast at the beginning of 2008.

Count 1

10. In relation to the maintaining charge, the evidence relied upon by the prosecution were the acts that comprised counts 2-7, together with other sexual acts identified, but not particularised, by the complainant in her evidence.  These included acts of which the complainant gave evidence, including: the appellant “twiddling” the complainant’s vagina with his fingers; repeatedly using vibrators on her;^[3] telling the complainant to take her clothes off so he could look at her entire body; lying beside her while he “did stuff” to her; repeatedly licking her vagina while massaging her; putting his penis “into [her]” a number of times; putting or trying to put vibrators into her vagina or bottom; pushing his penis against her vagina or bottom a number of times; sucking her vagina; and putting his finger in her vagina.

Count 2

11. The complainant’s evidence was that count 2 occurred when the complainant was staying with the appellant but prior to her moving into the appellant’s house.  He gave the complainant a massage, which he had previously done three times before.  However, on this occasion, the appellant told the complainant to remove her underwear.  He then touched her on the vagina, and ran his fingers between “all the crevices”.  The appellant gave “sex talks … while he was doing it … showing where everything is like … this … hole where the penis is supposed to go in”.  The appellant told the complainant, “it’s okay, just don’t let anybody else do it”.  The complainant said she felt uncomfortable but “didn’t know what he was doing because … I was so young, I didn’t understand it”.  The complainant’s mother was in the lounge room at the time.

Count 3

12. The complainant’s evidence as to the indecent treatment the subject of count 3 was that it occurred after the complainant and her mother had moved into the appellant’s house, toward the end of the year when she was in grade 6.  She said that, on this occasion, she was lying on the bed with no clothes on and he was standing on the floor between her legs.  The appellant removed his penis from his pants and told her it would “be the first and last time he did that”.  The appellant grabbed her hand and made her hold and squeeze his penis.  She then let go and pulled her hands away.

Count 4

13. The complainant’s evidence as to the first attempted rape count (count 4) was that it occurred when she was lying on the bed and the appellant grabbed his penis and pushed it against her vagina and bottom.  He kept trying to push it in for five to 10 minutes.  He then put his penis away and just started fiddling with her vagina with his hands for about five minutes before he stopped, unlocked the door and let her go.

Count 5

14. The complainant’s evidence about the second attempted rape count (count 5) was that it occurred three or four weeks after count 4.  Her evidence as to what took place was similar to that concerning count 4.  However, this time the complainant was wearing clothes but lying on her bed as before.  The appellant told the complainant he was “gonna do [her] legs now” and to take her clothes off.  She refused, as she did not want to.  The appellant said “ok leave your dress on” but “take off your underwear”, which she did.  The complainant said the appellant closed the door to the room but forgot to barricade it.  He lifted her dress up, pulled his penis out and did what he had done the previous time.  Then, all of a sudden, he pulled her dress down and zipped up his pants.  The complainant’s mother was fiddling with the door and rattling the door handle.  She opened the door and said dinner was ready.  On this particular occasion, the complainant said it only went on for about 10 minutes, although, she said, it usually lasted about 45 minutes.  This was the last occasion that the complainant could remember that the appellant tried to put his penis into her.
15. The complainant’s mother gave evidence that she did not see this incident but confirmed that the door would be closed during the massages.

Count 6

16. The complainant also gave evidence of the appellant trying to push his penis into her and that he then put his “fingers into [her]” to “stretch [her]” (count 6).  The complainant said the appellant would put his fingers into her vagina hole to try and break the seal.  He used his pointer finger.  He did this three or four times.  Every time he did this, he told her not to let anyone else do this to her and that if he got hard not to try and stop him.  He was standing between her legs at the time.

Count 7

17. The complainant’s evidence of the indecent treatment the subject of count 7 was of the appellant licking out the complainant, having put scented oil on her vagina, which burnt.  The complainant gave evidence that, at one stage, she had refused to let the appellant massage her.  This angered the appellant.^[4]  It resulted in him ignoring her and taking back items he had bought her.  She was made to feel guilty and told to apologise by her mother and the appellant’s wife.  The appellant took the complainant into her bedroom so she could apologise.  It was after she apologised that the appellant “straight away” gave her a leg massage, licked, and then applied scented oil to, her vagina.

Counts 8, 9 and 10

18. Counts 8 and 9 concerned two counts of taking indecent photographs of the complainant, who was under the age of 16 at the time.  It was alleged that the appellant had taken two sequences of photographs of the complainant, of which two photographs were indecent.  The photographs were identified by the complainant as photos taken of her by the appellant while she and her mother were living with him.  The complainant gave evidence that the appellant instructed her to position herself as depicted in the photographs.  She was able to identify herself in both photos, in part because of a bruise on her thigh and her wet hair, and identified the photos as being taken in rooms inside the appellant’s house, including identifying a door stopper appearing in one of the photos in the sequence.  She said the appellant used a Kodak camera, borrowed from her mother.
19. The complainant identified the appellant’s handwriting on the two discs containing the photographs.  The discs were found on 6 February 2013 during a search of the caravan the appellant was then living in.  Those discs were located inside a case about an hour into the search.  The forensic expert evidence was to the effect that the discs containing the copies of the photos had been “burnt” using the computer; the disc could only be written onto once.  The photographs were taken approximately 10 seconds apart and the two sequences of photos were taken over periods of approximately seven minutes each.  The date on which the photos were taken could not be established from the image data alone.  The images had been created on a computer with a system date and time of 3 April 2008.
20. There was evidence from the complainant’s mother that the camera used had been retained by the complainant’s mother and stored in her bedroom until surrendered to the police for analysis in March or April 2015.  Upon analysis, the data contained within the images and the data on the camera was consistent with the images on the discs being taken using the same model as the complainant’s mother’s camera although it could not be said that the photos were taken with that particular camera.  When tested, the camera was saving images to an SD card.  Possession of the photographs formed the basis of count 10.
21. It is fair to say that, notwithstanding extensive cross-examination, the complainant did not resile from her allegations during cross-examination.

Preliminary complaint witnesses

22. Despite being told by some family members not to say anything to anyone, the complainant said that she did speak to a number of people.^[5]  She said she told LB and then her mother.  She then told CC, RF and JF, on the same day, about four days to a week after that.  This was in late 2010 or early 2011.  The complainant gave evidence that she had told her mother that the appellant did things to her and that the conversation occurred when they were driving in the car.  The complainant’s recollection of what she told others was not clear.
23. The witness, LB, said that towards the end of 2010 or in the beginning of 2011, the complainant told her that the appellant had touched her, made sly comments and that his conduct got worse once she and her mother moved in.  The complainant told her the appellant would take her into a bedroom and put something against the door.  He would massage her (sometimes with clothes on and sometimes with clothes off) and work his way down to her vaginal area.  He jumped on her and hurt her “down there”.  LB said she asked the complainant if she had been raped and the complainant answered that she did not know if he had raped her.  She said she did not remember if he raped her.  LB said the complainant was crying and she tried to calm her.
24. The complainant’s mother gave evidence of an occasion in 2011 when she was with the complainant in the car and the complainant told her that that the appellant had raped her.  She did not ask what the complainant meant by this.
25. The witness, CC, remembered being told something by the complainant during the school holidays between the end of 2010 and the beginning of 2011.  RF and her mother were with her.  They were visiting the complainant at her grandmother’s house, where the complainant was living at the time.  The complainant became upset, saying memories were coming back.  The next day, when CC asked the complainant why she had been crying, she was told that “there was a man, a friend of [her] mum’s, who used to come around regularly and touch [her] regularly when [she] was younger”.
26. The witness, RF, referred to the same visit when CC was present.  She said that during a conversation with the complainant, when CC had gone to make a phone call, they were discussing “about boys and stuff”.  The complainant said it was hard for her “because of what’s happened to her”.  When RF asked what she meant by that, the complainant “just got this horrible look on her face” and mentioned the appellant’s first name.  The complainant was crying and said “it’s really hard having been raped”.  She said it had started when he used to give her massages.  RF said that the complainant indicated she had not told her mother because she was scared of hurting her.  RF could not remember if CC was there when the complainant said that the appellant had raped her, as RF was upset and crying about what the complainant had told her.  In cross-examination, RF agreed she had said in her statement that the complainant had stated “it’s really hard having been raped … more than once when he used to give me massages”.
27. RF’s mother, JF, referred to the same visit as RF.  She said it was in May 2011.  She overheard the complainant and RF talking about boys.  The complainant got upset and looked at her and JF asked her if the appellant had ever touched her.  The complainant burst into tears and said yes.  She went on to say that she had not told her mother as it would kill her.  Her account remained substantially consistent under cross‑examination.
28. The school chaplain, LW, gave evidence that she spoke with the complainant on 12 August 2011.^[6]  The complainant told her, when discussing other matters, that she had been “having dreams and flashbacks about an event that happened in the past” and that she had been raped in Bundaberg about eight years previously.

Medical evidence

29. A doctor gave evidence as to the medical examination of the complainant.  The effect of that evidence was that the examination findings were neither consistent nor inconsistent with vaginal penetration by a finger.

The evidence for the defence

30. The appellant gave and called evidence.  He denied the allegations made against him and denied any sexual interest in the complainant.
31. The appellant accepted that he had given the complainant massages.  His evidence was that the massages were to deal with the complainant’s incontinence issues and growing pains in her legs.  The massages occurred in one of the bedrooms in his house and “most of the time” he would close the door of the bedroom.  He would massage the complainant’s stomach and back.  As to the complainant’s clothes, what occurred changed “depending on what she was wearing – usually she had shorts and a top on.  She’d remove her shorts and they were placed beside her”.  The appellant maintained that the complainant’s underpants were always kept on when he massaged her.
32. The appellant said he had “a particular type of oil [he] liked to use.  The oil was not for the massage but to use with a ‘massage machine’”.  He said he originally had three massage machines, one of which he used on the complainant.  However, he denied having anything that might be described as a “sex toy” or a “vibrating sex toy”.
33. The appellant denied taking the images that were the subject of counts 8-10 or writing on the discs.  His evidence was that he was not aware of the presence of the discs in the caravan.  The appellant gave evidence of an interest in computers and that he received discs from a number of people, 729 in all.  His was not the only handwriting on those discs and several friends had helped him move his things to the caravan.
34. The appellant admitted that he had borrowed a Kodak camera from the complainant’s mother once to photograph two moles on the complainant, even though he accepted this was something that needed to be done by a doctor.  He also bought an SD card to use in the camera and returned the camera about five to 10 minutes later.  He said he gave the card and card reader to the complainant’s mother.
35. The appellant’s wife gave evidence that the complainant and her mother moved into the appellant’s house in 2006.  She was aware that the appellant was giving massages to the complainant.  She said the appellant gave the complainant massages “probably every week”.  She disputed that the appellant massaged the complainant “almost daily”, although that was what she had said in her statement to police.  She said that the bedroom door was kept shut during the massages.  It was not barricaded.  She said she did enter the bedroom on occasions during massages of the complainant, of her own volition.  The appellant’s wife disputed that the photographs tendered showed rooms of the house where she and the appellant lived at the time the complainant was living with them.
36. The appellant, who was 74 at the time of trial, also gave evidence as to his health.  He said he had had five heart attacks; a triple bypass which went wrong; tachycardia; vascular dementia; diabetes; had his gall bladder removed; and had been impotent since the mid‑1990s.  The appellant’s wife, a recently retired registered nurse working in aged care, gave evidence that the appellant had seen a doctor about failing eyesight and his impotence in 1999 and asserted that the appellant had not been able to sustain an erection since 1999.  The appellant did not give evidence on the topic and the complainant could not recall if the appellant’s penis was hard or soft during her sexual contact with the appellant.

Grounds of appeal

Relevant principles

37. As explained in R v RAU,^[7] the ground of appeal against conviction raised is to be regarded as a contention pursuant to s 668E(1) of the Criminal Code (Qld) that the jury’s verdicts were “unreasonable, or cannot be supported having regard to the evidence”.  It is, therefore, necessary for this Court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  The relevant principles were summarised in R v RAU,^[8] in the following passages, that have been adopted on subsequent occasions:^[9]

“In MFA v The Queen,^[10] McHugh, Gummow and Kirby JJ noted that a review of this kind:

‘… involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.’

In R v SCH,^[11] the relevant principles were summarised as follows:

‘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.^[12] In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such 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.^[13] 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.^[14]

This Court must, therefore, undertake “an independent assessment of the evidence, both as to its sufficiency and its quality”^[15] in accordance with [these] principles …’”

38. The long established approach referred to in M v The Queen^[16] and MFA v The Queen^[17] as to the primacy of the jury in criminal trials was recently reiterated in The Queen v Baden‑Clay,^[18] where the High Court observed:^[19]

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way …

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”

The duration of the jury deliberations

39. The issue of the duration of the jury deliberations, which was raised only faintly, may be dealt with immediately.  The jury retired at 1.19 pm on 26 June 2015.  They received a redirection at 1.28 pm and retired again at 1.32 pm.  The jury returned with guilty verdicts, without further redirection, at 4.05 pm.  The jury had the lunch period during which to deliberate.  They also had the benefit of a very thorough summing up by the trial judge of the evidence and issues.  There can be no basis for the suggestion that it should be inferred from the duration of the deliberations that the jurors did not properly attend to their task as jurors.

The lack of medical evidence to support complainant’s account

40. It is also convenient to address now the submissions made as to the evidence of the medical examination of the complainant.  The doctor’s evidence was that the medical examination of the complainant neither supported nor contradicted the complainant’s evidence, especially as to digital penetration.  While it was accepted that such evidence is generally described as neutral to the complainant’s allegations of sexual penetration, it was submitted on behalf of the appellant that, in this case, the absence of corroborating evidence raised a question about the complainant’s reliability.
41. The respondent submitted that the medical evidence went to forestalling speculation by the jury as to whether there was medical evidence to support the complainant’s evidence.  There was no evidence that the nature of the allegations made by the complainant would normally be expected to leave some medically observable sign or symptom.  In those circumstances, the respondent argued that the medical evidence to the effect that there were no findings that would confirm or refute the allegations, was intractably neutral and was, therefore, irrelevant to the assessment of the credit of the complainant.  Its purpose was to prevent the jury from speculating in just such a fashion as advanced in this ground of appeal.  I accept those submissions.  In this case, the jury would not have been assisted by the medical evidence beyond concluding that it was to be understood as being of neutral value.

Evidence concerning the appellant’s medical condition

42. On behalf of the appellant, it was submitted that the uncontested evidence given by the appellant and his wife, as to the medical conditions suffered by the appellant, raised a reasonable doubt as to the appellant’s physical capacity to commit many of the offences as charged.  In that regard, emphasis was placed on the appellant’s evidence of health issues including multiple myocardial infarcts and coronary artery bypass graft surgery, spinal degeneration including bulging discs, vascular dementia, diabetes and sexual impotence since the mid‑1990s.  It was contended that, given the uncontested evidence of impotence adduced at the trial, the jury could not be satisfied beyond a reasonable doubt that the appellant had the necessary intention or physical capacity to achieve vaginal penetration to any extent as required for counts 4 and 5.  Furthermore, it was argued that the complainant’s own evidence under cross‑examination as to whether the appellant was attempting to put his penis into her vagina was that she could not recall and that this was a further matter that ought to have raised a doubt in the jury.
43. On behalf of the respondent, it was submitted that there was no expert evidence called as part of the defence case concerning any of the appellant’s medical conditions, although the appellant had been to many doctors and specialists.  Moreover, the appellant gave no evidence about the consequences to him of any of those conditions.  On his own admission, the appellant’s health problems did not prevent him travelling around Australia by car.  Apart from difficulties in getting or sustaining an erection, there was no evidence of the day to day consequences of the appellant’s medical conditions nor any expert evidence.  I accept the weight of the submissions; there was nothing in the evidence concerning the appellant’s medical conditions that rendered the jury’s verdicts unreasonable.
44. As to the evidence of impotency, it is to be noted that the appellant’s efforts of penile penetration were but an aspect of the sexual touching of the complainant.  As the respondent submitted, on one view, the appellant’s behaviour, as described by the complainant, was actually consistent with her observing signs of his medical conditions.  The complainant’s narrative referred to him bringing his genitals into contact with hers, without penetration, and then touching her genitals with his fingers and only achieving digital penetration.  Furthermore, part of her narrative in relation to counts 5 and 6 could be understood as entailing a comment by the appellant about his erectile difficulties: “… if I get hard”.  There is nothing in the evidence concerning the appellant’s medical conditions that would have troubled the jury.  I do not consider that the evidence of the appellant’s medical condition indicates that the jury’s verdicts were unsafe or unreasonable.

Admission of the preliminary complaint evidence

45. On behalf of the appellant, it was submitted that the evidence of the preliminary complaint witnesses was admitted without a pre‑trial hearing to determine whether or not such evidence ought to properly be admitted.  Precisely what each of the preliminary complaint witnesses were told by the complainant and when they were told was thus not examined before the trial.  A further matter raised was that a number of possible preliminary complaint witnesses listed by the complainant in cross-examination had never provided statements to police and were not called at trial.  It was argued that the preliminary complaint witnesses’ evidence was, in significant respects, inconsistent with each other’s evidence and with the allegations made by the complainant.  No explanation was provided as to why the complainant provided each preliminary complaint witness with different versions of the alleged offending and also told each preliminary complaint witness that she had not told anyone else.  This was said to be likely to raise a doubt as to her reliability.  It was also submitted on behalf of the appellant that if the evidence sought to be adduced by preliminary complaint witnesses was inconsistent with the complainant’s version of events, it should not have been admitted as evidence of preliminary complaint.  It would not fall within the exception provided in s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) and ought to have been excluded.  Further, as the versions provided by each preliminary complaint witness were critically inconsistent with the complainant’s version of events, the evidence of the preliminary complaint witnesses ought to have been excluded pursuant to s 130 of the Evidence Act 1977 (Qld) as being highly prejudicial and possessing little to no probative value.
46. The respondent submitted that the preliminary complaint evidence was properly admitted.  The respondent argued that, while there were inconsistencies in the evidence of the preliminary complaint witnesses, the failure to object to its admission was a tactical decision binding on the appellant.  The failure to object could be viewed as a sound tactical decision, since, as the trial judge’s summing up demonstrated, the strongest attack on the complainant’s credibility had at its foundation asserted inconsistencies in the preliminary complaint evidence.  It would thus have been tactically unsound to test that evidence in advance of the trial.  Such a course would have run the risk of forewarning the preliminary complaint witnesses of difficulties with their evidence.  Its greatest potential impact was in front of the jury and that impact was deftly handled by defence counsel.  Further, such a course would have invited explanation of inconsistency and may have led to the prosecution seeking further preliminary complaint witnesses, which may have added to the consistency of the complainant’s account.
47. It is to be noted that defence counsel did not raise any objection to the evidence, nor was a voir dire sought to overcome the lack of particulars regarding the nature of the preliminary complaint evidence.  Furthermore, in my view, that failure can be seen as a sound tactical decision, as submitted by the respondent.
48. As to the inconsistencies in the preliminary complaint evidence raised on behalf of the appellant, they included that:

• CC’s evidence was that the complainant was touched by a male friend of her mothers who “used to be around”.  It was said that there was, at the very least, an issue of identification of the perpetrator in that evidence and that this was an unusual way of referring to the appellant, with whom the complainant was staying.
• LB’s evidence was that she had been told that the appellant “jumped” on the complainant and really hurt her “down there”.  It was submitted that the description of “jumping” did not sit well with the appellant’s account of his medical condition.  Further, when LB then asked the complainant directly if he had tried to rape her, the complainant said that she could not remember if he had tried to “rape” her.
• JF’s evidence was that she asked the complainant if the appellant had ever touched her and that the complainant said yes, but told JF that she could not remember the details.  However, the complainant’s own evidence was that she did not have a conversation with JF, but that JF had walked into the room and overheard a conversation with one of the other preliminary complaint witnesses.

49. All these matters were ones that were properly questions for the jury in their assessment of the evidence.  That there were inconsistencies did not render the evidence of the preliminary complaint witnesses inadmissible.  As was observed in R v BCZ by Philip McMurdo JA, to be admissible the preliminary complaint evidence must be unambiguously referrable to the evidence given by the complainant.^[20]  In relation to the preliminary complaint evidence here, the submission that it was not admissible due to its generality cannot be accepted; it was clearly referable to count 1, in addition to some of the other counts on the indictment.  The generality of the complaints went to the weight of the evidence and not its admissibility.^[21]
50. In that regard, it is worth noting, as was submitted by the respondent, that in this case the jury was clearly directed that it was for them to determine whether there was evidence of complaint and, if there was, whether it was consistent or inconsistent with the complainant’s evidence.
51. I accept the respondent’s submissions that, given the clear directions of the trial judge, there was no scope for the jury to have improperly used preliminary complaint evidence in this matter.
52. Furthermore, to have excluded the evidence of preliminary complaint would have deprived the appellant of an avenue for attacking the credibility of the complainant.  There was no danger the jury could have reasoned so as to have used evidence, which was advanced as preliminary complaint evidence but which the jury found to be inconsistent with the evidence of the complainant, as bolstering the complainant’s evidence.  In my view, there was no error, in any event, in the admission of the preliminary complaint evidence.

The complainant’s evidence and matters of credibility

53. On behalf of the appellant, it was submitted that the complainant was a “disturbed” child in that she was faecally incontinent before she moved into the appellant’s house (which continued during the time that the complainant lived at the house of the appellant).  The complainant was, by that time, 11 years old.  The complainant also attended a counsellor.  It was submitted that the complainant’s “disturbed mental state” had continued and that no evidence was adduced with regard to the difficulties the complainant was having with her faecal incontinence before or after the time that she lived with the appellant.  Furthermore, it was submitted that no evidence was adduced with regard to her mental health at that time or as to the nature of the conflict with her mother’s partner in 2011.  Sometime in early 2011, the police spoke to the complainant about her mother’s partner.  The complainant said that she was “having an episode that morning”, was “very emotional that day” and had to have “the police escort me”.  Furthermore, she did not tell the police about the appellant that day although she had ample opportunity to do so.
54. As to those submissions, there was no evidence, as the respondent pointed out, that the complainant was a disturbed child of which her incontinence was a symptom or sign.  Nor could such an inference be rationally drawn.  As to the complainant’s reference to having an “episode”, that was a reference to events happening at the complainant’s home in 2011.  I accept the respondent’s submissions that there was no evidence of it being part of, or in fact, a continuation of a “disturbed mental state” on her part.  Such a mental state could not have been rationally inferred to exist or to have had a bearing upon the assessment of the complainant’s credibility.
55. Counsel for the appellant raised the following “inconsistencies” in the complainant’s evidence:

• The complainant’s evidence that she stayed overnight by herself at the appellant’s house was contradicted by the evidence of her mother.
• Evidence that might be described as going to the appellant’s sexual interest in the complainant, such as buying sexy underwear and high heeled shoes, was uncorroborated.  The complainant’s mother had no memory of seeing lacy underwear or high heeled shoes.  The purchase of such items was denied by the appellant.
• The complainant alleged that the vibrators used on her by the appellant were “sex toys”.  The complainant agreed in her evidence in chief that the appellant would “try to use” vibrators.  No actual explanation of “try” was ever provided.  Despite having said that she could not recall the vibrators being used on her more than once she also said they were used more than once.  The complainant’s mother denied seeing any sex toys at the property.  No vibrators as described by the complainant were found.  The appellant denied having any sex toy type vibrators.  The appellant agreed that he had three massage vibrators but the complainant did not identify the massage vibrators as being the vibrators used on her by the appellant during the commission of the alleged offences.  It was not possible for the jury to be satisfied beyond a reasonable doubt that there was any actual use of sexual vibrators by the appellant on the complainant.
• The complainant alleged that her mother was present in the house during the offending unless she was out at work or running an errand.  This evidence was said to be contradicted by the complainant’s mother who said that she was not employed during the relevant time period and kept the complainant with her at all times.  Further, there was uncontested evidence that there were a high number of individuals in and around the house constantly during this time period.
• The complainant alleged that the door of the bedroom where the massages took place was closed and barricaded “every time’’ after the massages became sexual.  Yet, on the one occasion that the complainant said that her mother walked in, the appellant apparently had forgotten to put the barricade against the door.  The complainant clarified her evidence, stating she was unable to recall if the barricade was there on that day or not.  The jury could not therefore be satisfied to the requisite standard that the door was ever barricaded during the massages.  There was no contest that the door was closed during the massages.

56. As to the first matter of inconsistency, it is to be noted that the evidence of JF contradicted the complainant’s mother’s evidence that she was always with the complainant.  That matter and the other issues of inconsistency raised were properly the matter of addresses.  They were also dealt with by the trial judge and placed before the jury as touching upon the credit of the complainant.  I accept the respondent’s submission that none of those issues, individually or collectively, prevented the jury from accepting the complainant’s evidence as to the commission of the charged counts.

Trial judge’s directions

57. The trial judge’s summing up included directions about inconsistencies in the evidence and their potential significance, leaving the jury to decide what evidence they accepted.  His Honour also gave directions to the effect that it was for them to decide the significance of the evidence of the appellant’s impotence and what significance that had as to whether penetration was intended.
58. In relation to counts 8-10, the trial judge explained that proving the guilt of the appellant was linked to accepting the complainant’s evidence about the taking of those images and the appellant’s handwriting being on the DVD case in which the two discs were found.
59. A Longman direction was given in which the trial judge referred to both delay and inconsistencies.  The trial judge took the jury to inconsistencies, particularly those specified by defence counsel.  The trial judge also gave a warning that it was dangerous to convict on the complainant’s evidence alone and that there was a need to scrutinise her evidence with great care, not only because of delay, but also because of the inconsistencies in her evidence.  In my view, contrary to the appellant’s submission, that warning was adequate.  The jury was told that they were only to act on the complainant’s evidence if, bearing in mind that additional warning, they were convinced of its truth and accuracy.  There was no need for any additional direction for particular care to be taken in examining the complainant’s evidence because of any “mental state” of the complainant.
60. A preliminary complaint direction was given.  The trial judge directed the jury that inconsistencies might cause them to doubt the evidence of the complainant, that whether inconsistencies existed was a matter for them and that the evidence may go toward proving some of the offences only.  Further, the trial judge outlined the inconsistencies in the preliminary complaint evidence raised by defence counsel.  These directions were sufficient.
61. The trial judge gave a clear and strong Markuleski direction.  His Honour also gave a direction that the prosecution case depended on the jury accepting the evidence of the complainant and that they did not have to believe the evidence of the appellant to have a reasonable doubt.
62. In my view, no deficiency in the directions can be demonstrated.  The trial judge gave comprehensive and careful directions to the jury that were appropriate to the case.

Conclusion

63. The jury received appropriate directions as to the need to scrutinise the evidence of the complainant with great care.  The trial judge in particular emphasised that the jury was required to assess whether there were inconsistencies in the preliminary complaint evidence and the evidence of the complainant generally and determine the weight and significance of the inconsistencies.  The jury also enjoyed the considerable advantage of hearing and seeing the witnesses.  In my view, on the evidence before the Court it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charged counts.

Application for leave to appeal against sentence

Sentencing remarks

64. In imposing sentence, the trial judge had regard to the nature and duration of the present offending, which occurred over a period of approximately two and a half years.  His Honour noted that while the offending was serious and the appellant had taken advantage of a family to whom he had given shelter, it was not aggravated by occurring in the context of a family relationship.  There were also no threats, no violence and no injuries of a physical kind.  Nevertheless, his Honour concluded that the appellant had taken advantage of a naïve mother and deliberately developed a relationship with the complainant in order to commit the offences.
65. The trial judge made reference to the complainant’s victim impact statement.  His Honour noted that the appellant’s conduct had placed the complainant “in a very vulnerable state”, with significant effects on her health and wellbeing; impairment in her ability to relate to partners and her own child; and difficulty sleeping.  Having to view the photos that comprised counts 8 and 9 made her feel sick.
66. His Honour had regard to the appellant’s age; he was 74 when sentenced and aged 62 to 67 during the period of offending.  In the appellant’s favour, it was noted that he had a good work history and had previously engaged in community work.  The appellant had adult children.  His wife was considered “likely to stand by” him.
67. The trial judge made reference to the appellant’s medical conditions, which included stable and minimally symptomatic ischemic heart disease without cardiac failure, coupled with a moderate aortic stenosis, peripheral vascular disease with coarctation, cerebrovascular disease with evolving cerebral ischemia and vascular dementia.  His Honour noted that the appellant’s angina had increased since being imprisoned and he had been placed in a medical unit on a permanent basis.  The trial judge considered the appellant’s medical conditions as relevant to the sentence to be imposed but referred to defence counsel’s concession that the condition did “not overwhelm the sentencing that would otherwise be imposed”.
68. His Honour referred to the appellant’s criminal history of a similar nature, comprising convictions for maintaining and also for indecent treatment of a child under 12, for which the appellant, as already mentioned, was sentenced, after trial, on 7 May 2015 to a period of two years and nine months imprisonment to be suspended after serving 16 months, with an operational period of five years.  That period was made up of concurrent terms of imprisonment of two years and nine months and 18 months.  That offending was committed between October 2012 and February 2013, when the appellant was 72 years of age, against a nine year old complainant.  It post-dated the present offending.  His Honour noted that, on that occasion, the sentencing judge had imposed a suspended sentence in order to provide a definite period of imprisonment before release.
69. In imposing sentence, his Honour had regard to authorities such as R v Myers^[22] and R v TY.^[23]  His Honour noted defence counsel's submission that a similar approach should be taken to that adopted by the sentencing judge in May 2015, so as to provide for certainty as to the actual period of imprisonment.  His Honour considered that the appellant had had his “chance” in respect of that approach and stated that he simply intended to set a parole eligibility date.  His Honour noted that, in respect of the sentences imposed in May 2015, the release date for the 16 months required to be served by way of actual custody was 7 September 2016.  His Honour stated that the cumulative sentences imposed would thus commence on that date.
70. The imposition of a cumulative term of five years for the major offence resulted in a full time release date of 7 September 2021, with parole eligibility on 7 March 2019.

Submissions

71. In seeking leave to appeal against sentence, the appellant did not cavil with the head sentence imposed but rather submitted that the sentence was manifestly excessive in terms of the imposition of a cumulative sentence and in the failure to properly take into account considerations of totality.
72. It was argued that the sentencing judge failed to consider, and give effect to, the appellant’s medical conditions and, in particular, the impact that those conditions would have on the appellant’s manner of incarceration in fashioning the sentence imposed.  It was submitted that management of those health conditions in prison would be detrimental to the appellant’s physical and mental health.  Furthermore, it was argued that the trial judge failed to consider and give effect to totality considerations.  In ordering that the term of imprisonment be cumulative upon sentences imposed on 7 May 2015, his Honour did not reduce or otherwise soften the cumulative nature of the imposed penalty.  There was no tangible evidence here that the totality of the imposed sentence was revisited by the sentencing judge when this sentence was cumulatively imposed.  It was submitted that the resulting sentence was crushing.  In that respect, it was argued that, bearing in mind the cumulative nature of the sentence imposed, the appellant would be required to serve a total of 46 months of actual custody.
73. The respondent confined submissions to matters raised by the appellant, contending that the total effect of the sentence was not out of proportion to the overall criminality of the appellant and could not be said to be manifestly excessive.

Conclusion

74. I am unable to accept the appellant’s submissions.  His Honour did not fail to have regard to the consequences for the appellant arising from a cumulative sentence given the appellant’s medical conditions.  The trial judge was correct to not approach those matters as overwhelming an otherwise appropriate sentence.  It was well within his Honour’s sentencing discretion to reject the submission that a suspended sentence be imposed and instead exercise his discretion to impose a terms of imprisonment to be served cumulatively upon the sentences for the earlier offending.  The offending was of a very serious nature by an individual with a relevant history who did not have the benefit of having entered a plea and whose conduct has had a lasting effect on the complainant.  I do not consider that the course taken in not setting an earlier parole eligibility date (that is, earlier than the half way mark of the five year sentence) was outside the sentencing discretion.  The trial judge made explicit reference to the need for bear in mind the totality principle and no error can be detected, in my view, in relation to that consideration.  The sentences imposed have not been shown to have been manifestly excessive.

Orders

75. The orders I propose are:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

76. DOUGLAS J:  I agree with the reasons of Philippides JA and the orders proposed by her Honour.