R v Spierenburg[2016] QCA 93

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA:  Mr Spierenburg was convicted on 28 August 2015, of one count of indecent treatment of a child under 16 years of age, the child being under 12.
3. Mr Spierenburg lived in the lower level of a two-storey house, the upper level being occupied by the child (P), several of her siblings and her mother.  Mr Spierenburg and the mother had been engaged to one another for several years, before they separated and she married another man, who was the father of her children.  That marriage failed, and after the mother and father separated, Mr Spierenburg moved into the lower level of the house.  According to the mother, they were on no more than friendly terms.  The children got on well with Mr Spierenburg.
4. There was a conflict of evidence, not as to what occurred, but as to whether it could have occurred at all.  The conflict was between P’s account and that of her mother.  A short synopsis at this point will suffice to show the conflict.
5. According to P, she asked for, and was given, her mother’s consent to sleep downstairs one night, because she wanted to see what it was like.  She had not slept downstairs before.  P was certain that it was not one of the two times when she (together with her sister, or sister and brother) had been down to watch a movie with Mr Spierenburg.
6. P said that when they got into bed, Mr Spierenburg drew her closer to him, put his hand down her pyjama pants and touched her on the outside of her vagina.  She felt paralysed with fear, but went to sleep.
7. According to P’s mother, there was no occasion when she gave consent for P to sleep downstairs, and the only time that P had been down at night was on the two occasions when the children (or some of them) watched a movie with Mr Spierenburg.  She said that on each occasion the children came back upstairs to sleep.
8. Mr Spierenburg challenges the conviction on the basis that P’s evidence was of such poor quality that the jury ought not to have been satisfied beyond reasonable doubt as to his guilt.  Further, the jury ought to have had serious reservations as to P’s reliability and honesty, when her evidence was seen in light of that by her mother, and her father.  It was contended that P was a determined liar.
9. The trial judge gave a report under r 94 of the Criminal Practice Rules 1999.  In that report her Honour drew attention to remarks she made in court following the verdict: “I will obviously proceed in the sentencing process consistent with the jury’s verdict but I did have some significant reservations about the verdict, particularly in view of the evidence given by the complainant, and the nature of the evolution of that complaint”.
10. The issues raised by the appeal are:

1. whether the verdict is unreasonable or cannot be supported having regard to the evidence; and
2. what weight, if any, should be given to the report of the trial judge.

Legal principles

11. The relevant test on an appeal where the ground is that the verdict is unreasonable is that in M v The Queen:^[1]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

12. In M v The Queen the High Court also said:^[2]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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.”

13. In applying those tests the court must make an independent assessment of the whole of the evidence, both as to its quality and its sufficiency.^[3]

Circumstances of the offending

14. P was interviewed by police on 4 December 2012, that statement being admitted under s 93A of the Evidence Act (Qld).  She was then nearly 10 years old.  Her oral evidence was pre-recorded under s 21AK of the Evidence Act.  At that time she was 11 years and four months old.
15. Her account in the interview was:

1. she wanted to sleep downstairs to see what it was like;^[4]
2. her mother said she could,  but warned her it was going to be cold;^[5]
3. she was the only one of the children who went downstairs on this occasion;^[6]
4. she and Mr Spierenburg looked at some photos on his computer, and he showed her how they could be changed;
5. they divided the bed, so each was on a different side;^[7]
6. she recalled the pyjamas she was wearing (silk with kittens, given to her by her father),^[8] and the words on them, something like “princess cat”;^[9] she drew them and the layout of the room (in some detail);^[10]
7. when they went to bed, Mr Spierenburg pulled her close, lifted her pants and “started doing it”;^[11]
8. she described the touching as: “he was putting his finger around … my … thing and then he put … his finger in his mouth and then dot it over and over again”;^[12] she identified her “thing” as her “rude part” or “vagina”;^[13] he was “doing it around like that and then putting his finger in his mouth and he’ll do it again and again”;^[14] he was on the vagina but near the outside;^[15]
9. she was really scared, and she did not know what to do;  she said she did not want her mother and Mr Spierenburg to get into a fight so she decided to wait to tell her father;^[16] she forgot about it until a recent holiday period, when she told her father;^[17]
10. she put the date as around March to May, which she said she recalled as it happened two months after she turned nine.^[18]

16. In her pre-recorded evidence in chief, P identified a part of the police interview that she said was, in fact, incorrect.  That was as to whether one particular brother was at home or not.  Otherwise she affirmed what she had said in the interview.  Her account, under cross-examination, was:

1. she went downstairs because she wanted to see what it was like; she hadn’t slept down there before;^[19]
2. she was positive that she did not go down to watch a movie;^[20] her sister was not there; the occasion when she had gone down to watch a movie Ice Age “was a completely different night”;^[21] she was definite that the Ice Age occasion  was not the night when Mr Spierenburg touched her;^[22]
3. her mother said it would be cold;^[23]
4. she was definite, in the face of aggressive questioning, that her mother had given her permission to sleep downstairs;^[24] she said “I remember her saying yes, I can … ‘Yes, you can go downstairs but be careful it might be cold’”;^[25]
5. Mr Spierenburg showed her photos on the computer and the things to do with them, like zooming in and out, distorting and flipping them;^[26]
6. she could not recall what she did between looking at the computer and going to bed: “If I said I did something I would be lying because I can’t remember”;^[27]
7. when they went to bed Mr Spierenburg pulled her close “and started touching my rude part”; at that time she was lying on her side, facing away from him;^[28]
8. she was wearing her “kitty silk” pyjamas;^[29]
9. he lifted up the elastic band at her waist and put his hand down the front; he “started touching my rude part in little circles – like, going around in the outside and started feeling my rude part”;^[30] he “got his finger out and  … did it in a circle – like, a circle on the outside of it – like, an entire circle”;^[31]
10. she was scared, petrified, and fell asleep;^[32]
11. she forgot about it until she told her father while at his house;^[33] she told her father “So he could do something about it”;^[34]  she explained that she did not like having Mr Spierenburg there “because he would always get mad and stuff”,^[35] so she told her father to see if he could do something about it;^[36] then, in answer to the leading question “[t]o get [him] out of the picture?”, she agreed but said “not kill him as such”, but “just get him out of the picture”, “[i]n a way, yes”;^[37]
12. she explained the forgetting of what happened: “I woke up that morning and I put my mind straight off it so then I would forget about it and nothing would happen.  But then I had to remember it, because I learnt that lesson that if you were to be assaulted in that way it’s illegal, so I had to tell my dad”;^[38]
13. she was prompted to tell her father because of a lesson at school, where they were told that if they were touched in such a way then it was illegal; “so I had to tell my dad”.^[39]

The mother’s evidence

17. P’s mother gave evidence which included these aspects:

1. she and P’s father had separated in 2007, and finally divorced in 2013; she had just regained custody of the children in April 2015; since separation the relationship between the mother and father had been “malicious and volatile”;^[40]
2. she had known Mr Spierenburg since childhood, and been engaged to him for four years, between the ages of 16 and 20; they met again in 2011 when they decided to keep things between them as “just being friends”;^[41]
3. in 2011 (for several weeks) and then from February 2012 Mr Spierenburg had lived at her house;^[42]
4. the children regularly spent time with him;^[43]
5. she said that the father had not returned the children one time in 2011, then again in September/October 2012 “where all this started”;^[44] however, the reason he did not return them in late 2012 was because her mother had rung him “and told him that I had been put into a mental hospital … into the mental ward…”;^[45]
6. there were only two occasions when the children were downstairs in Mr Spierenburg’s care; one was when they watched a movie called Cars 2, and they all came back up when it was over; the other was when P and her sister went to watch Ice Age 4, probably around June 2012;^[46]
7. on the occasion of watching Ice Age, P’s sister went upstairs, and P’s mother went down to check on her; P said she was good, so the mother left her to watch the movie; some time later Mr Spierenburg came upstairs to say that P had fallen asleep; he then carried her upstairs and P’s mother put her to bed;^[47]
8. P had not asked to sleep downstairs except on the occasion of watching Ice Age; “… she kept nagging and I said no and then she kept nagging and I actually gave in and I said you can go, you can watch the movie and we’ll see how it goes, but you probably won’t be able to sleep there because you’ll probably fall asleep and I’ll bring you upstairs”;  and “I said to her and if you ask again you’re not even going to be allowed to watch the movie …”;^[48]
9. there was no time when she said that P could sleep downstairs, except the exchange over watching Ice Age; “There’s been no other time that she asked me to sleep downstairs … and I have really not really said yes”;^[49] as to Ice Age, “it was not a yes … There was no yes ever”;^[50]
10. she became “really sick” in May and June, and she was having trouble looking after the children;  her mother was asked to watch the children for two weeks.^[51]

The father’s evidence

18. P’s father gave evidence concerning the occasion when P told him about the incident with Mr Spierenburg.  The conversation started with P asking about whether children’s views were taken into account in custody disputes.  He said that if she had a problem she could talk to him about it.  That was when P told him that: she had spent a night downstairs in Mr Spierenburg’s bed; he had pulled her pants down and started rubbing her vagina; P had not spoken to her mother about it as she did not want her mother and Mr Spierenburg fighting.
19. In cross-examination it was put to the father that P had said that she had been watching videos, to which he responded: “I am not sure of the detail of the videos, but I’m sure she’d told me that she was downstairs in [Mr Spierenburg’s] room”.^[52]  He was then asked about his evidence the year before when he had said that P’s account was that she had been watching videos on the occasion of the assault.  He responded that if the transcript showed that then he must have said it.^[53]

Discussion

20. The differences between P’s evidence and that of her mother essentially came down to two points: (i) P said she had her mother’s consent to sleep downstairs; and (ii) P said that consent was given on an occasion other than when P and her siblings went down to watch a video.
21. In the end the real difference was centred on the second point.  P’s mother gave evidence that P did ask permission to sleep downstairs, and persisted in asking to the point that she “kept nagging” about it.  However, the mother said that was the occasion when P and her sister went down to watch the Ice Age video.  Of course, P denied that to be the case, insisting that the assault occurred on a completely different night.
22. P’s mother said she had “not really said yes”, but rather “we’ll see how it goes” and P would probably not be able to sleep there because “you’ll probably fall asleep and I’ll bring you upstairs”.^[54]
23. The jury may have concluded that the mother’s answer, given to an eight year old, might have been understood by P as a “yes”.  However, that still leaves the difference as to whether it was on the video watching night or some other time.
24. Putting that to one side for the moment, the occasion that P’s mother referred to was one where, after P’s sister had come back upstairs, P was on Mr Spierenburg’s bed and fell asleep while Mr Spierenburg was there.  Further, when P’s mother went down after being told that P was asleep, P was lying on her side facing away from the other side of the bed.^[55]
25. In my view, there are reasons why the jury may have discounted the evidence of P’s mother.
26. First, the mother may not have wished to admit that she was responsible for giving the consent that led to the assault on her daughter.  Including the occasion when she said she agreed to P going downstairs in the context of sleeping over, the mother’s evidence was that there was no “yes” ever, only conditional consent was given when she gave in under P’s persistent nagging.
27. Secondly, the mother’s admission that she gave consent may have been seen by her to be potentially damaging in the context of the custody dispute over the children, finalised recently before the trial.  Given the mother’s description of the relationship between herself and the father as malicious and volatile, she may have been wary of giving any ammunition to the father.
28. Thirdly, the jury may have thought that her long relationship with Mr Spierenburg may have influenced her.
29. Fourthly, P’s mother gave evidence that she was “really sick in May, June [2012], and I was having trouble looking after the children because I was really sick”.^[56]  That period falls into the time frame covered in the indictment.  The jury may have taken that into account as a reason for discounting her recollection that there was never a “yes”.
30. Fifthly, looking at the mother’s position, until the complaint surfaced some time later there was no reason for her to remember the occasion when it might have happened.  That, combined with her admitted ill health around the time, provides a basis on which the jury may have discounted her evidence.
31. It is also possible that the jury took the view that while they accepted P’s evidence as to what happened, they did not accept that it was on a night other than when she and her sister went down to watch Ice Age.  Notwithstanding P’s definite manner as to it not being a video watching night, the evidence of P’s mother revealed an occasion when: (i) she had given a form of consent to P’s being downstairs with Mr Spierenburg; (ii) that consent acknowledged that sleeping over was a possibility; (iii) Mr Spierenburg and P were alone downstairs; (iv) P fell asleep on Mr Spierenburg’s bed; and (v) P fell asleep in a position where she was facing away from the other side of the bed, the position which P had described in the police interview.
32. The contentions advanced by senior counsel for Mr Spierenburg included that P was a determined liar,^[57] and the real reason for her invented story was that she desired to have Mr Spierenburg taken out of the picture.  It was said that conclusion could be drawn from: (i) P’s resort to answering “I don’t remember”; (ii) her response, when asked to explain what Mr Spierenburg had done, that she was uncomfortable talking about it; this was characterised as an attempt to shut down cross-examination; (iii) her story of falling asleep when she had just been assaulted was implausible; (iv) her account of why her brother had left the household was an invented story; and (v) so, too, was her account of her father telling her that it was wrong for a man to do what she described.
33. Thus, it was said, these were examples of P’s “resort to lack of memory”,^[58] the “hallmarks of an untruthful witness”,^[59] P’s attempts to “shut down the questioning completely”,^[60] “the means by which [P] avoided providing details as to what happened”,^[61] and revealing her capacity to tell a story and “making things up, telling a story”.^[62]
34. I do not consider that contention can be made out.
35. P’s answers that she did not remember were largely in response to questions:

1. as to her mother’s attitude generally to P’s sleeping downstairs;^[63]
2. whether her mother came down when P was watching Ice Age;^[64]
3. what she did between looking at things on the computer and going to bed;^[65] and
4. where she woke up.^[66]

36. The cross-examiner put to P several times that her mother “wouldn’t let you sleep downstairs” or that she “wasn’t allowed to sleep downstairs”, or “your mother never would allow you to … sleep in [Mr Spierenburg’s] room”.^[67]  P’s response to these questions was “I don’t remember” or “I cannot remember”.^[68]  Those questions were not specific to the night in question and as to whether the mother said yes on that occasion.  Rather, they were framed in such a way that they were likely understood to be directed at the mother’s attitude generally.  The response was to say that P couldn’t remember what her mother’s general attitude was.  That is hardly surprising given P’s age at the time.
37. The second time the question was framed to challenge that the event could have happened at all: “But what I’m saying to you is that could not have happened because your mother never allowed you to sleep down there – never?”^[69] That drew the answer: “The way I remember it is that she had said yes and if the way I remember it is wrong, I apologise”.  Senior counsel sought to draw two things from the answer: first, that there was an implicit concession by P that her memory could be wrong; and secondly, that once again she was shutting down cross-examination.
38. I do not accept either characterisation.  At that point the cross-examination tone was angry, and the question came after P was evidently confused as to what was being asked.^[70]  The answer was quite definite that she remembered that permission had been given.  The next question continued the aggressive and angry tone of questioning, and the DVD of the pre-recorded evidence shows P to be upset and frowning at what was being asked.  Once again the question was framed as this was “an event that could not have happened in the way you say it did because your mother never let you go to sleep in [Mr Spierenburg’s] room”.  The next question was, again in an angry tone accompanied by hitting the lectern: “You couldn’t have gone to [Mr Spierenburg’s] room to go to sleep because your mother would not allow it”.  The DVD reveals P to be upset, covering her eyes, frowning and then very soon after, she looks to the support person.
39. A third time the same line was used, with it being put to P that it was untrue to say her mother had said yes, “because your mother never let you sleep in [Mr Spierenburg’s] room – never, did she?”.  Then when that was answered with “I don’t remember”, the next question was: “What do you mean you don’t remember because you’re saying to us that she did”.  That last question was again put in an aggressive and angry tone, and at that point P was again upset and crying.  However, she was definite about the question of consent, saying “That’s how I remember it” and “I clearly remember her saying yes”.^[71]
40. P’s reaction to the questions did not bespeak a witness trying to shut down the cross-examination, but rather a child witness becoming upset at an aggressive line of questions that confused her.
41. The jury saw P’s evidence by way of two DVD’s, one of the police interview and the other of the pre-recorded evidence.  They could well have concluded that P’s evidence in these instances were not properly characterised as that of a determined liar trying to avoid questioning.  I have watched the same DVD’s and would not reach that conclusion.
42. Further, there are other parts of P’s evidence which would suggest the contrary conclusion.  Thus, in the police interview P said that Mr Spierenburg put his finger in his mouth during the course of touching her.  That detail was not repeated in her oral evidence.  Further, in her examination in chief, P corrected a part of her police interview that she said was wrong.  Finally, in her pre-recorded evidence she said that she was facing away from Mr Spierenburg when he touched her.  That detail was not in the police interview.
43. The jury may well have concluded that a determined liar or inventor of stories would have easily filled needed details and not said she could not remember.
44. Further, P gave a consistent level of detail as to the events that, the jury may well have thought, revealed a genuine memory rather than invention.  Thus, P referred to the photos on the computer and how she was shown how they could be manipulated, the specifics of the pyjamas she was wearing, who was assigned which side of the bed, the layout of the room down to a particular painting (a woman holding an umbrella in a graveyard), and the particular type of touching motion (circular motions with a finger on the outside of the vagina).
45. In P’s evidence there were a number of things which she said, and to which she adhered notwithstanding an aggressive cross-examination, which could be accepted by the jury as showing a level of consistency in her account:

1. she had permission to sleep downstairs;
2. she was alone with Mr Spierenburg;
3. he showed her photos on the computer and how they could be manipulated;
4. she was wearing her “kitty silk” pyjamas;
5. she and Mr Spierenburg were alone on the bed;
6. the touching occurred on the bed, and nowhere else;
7. he put his hand down the front of her pyjamas; and
8. he touched her on the outside of the vagina, using his finger and in circular motions.

46. In my view, the matters raised on appeal do not reach the level, alone or cumulatively, where it can be said that the jury ought to have had such a doubt about P’s evidence that they could not accept it and convict.
47. The issue of the absence of her brother became a topic when it was raised in cross-examination.^[72]  P’s response to it was the first example said to be an invented story.
48. P was asked whether she knew that a complaint was made about her brother (T), and that as a result he had left the household.  P answered yes to both.^[73]  Those questions were not as to whether P knew those things at the time they happened.
49. It was then put to P that she knew that if a “complaint of that type” was made, action would be taken, and T’s leaving the household was such an example.  P’s response was that she did not know at the time, and she was very young at that time.^[74]
50. P went further and said she still did not know why T had been taken away.  Further, she thought, plainly referring to the time T was taken away, that he was “taken away for, like, a school thing … a really long school thing”, and “he had something to do with school”.^[75]  The evidence of P’s father was that P was four years old at the time.^[76]
51. As P was attempting to explain what she knew and thought at the time T was taken away, well before the incident with Mr Spierenburg, it is difficult to portray this as an invented story.  I do not accept that it bears that character, and I doubt that the jury would have thought so.
52. The second example of so-called invention was said to be P’s account of the conversation with her father when she told him what had happened.  P said she told her father what happened, and she was then asked: “What did he say to you?”  Her response was:^[77]

“He said [P] that’s – you do – you do know that’s wrong for a man to do that to you? And I said, oh, really – no. I didn’t really say, oh, really. I said – I said sort of, really not. And then he said okay, well I need to sort this out.”

53. The contention seemed to be based solely on the manner in which P gave that evidence, described in argument as “quite animated” and “almost acting, in a way”.^[78]  In my view, that contention cannot be accepted.  First, P immediately corrected herself.  Secondly, P was a confident, demonstrative witness, and the so-called animation may well have simply been her normal manner.  Thirdly, P was not challenged as to what she said, nor was her father asked to give his version of the conversation.
54. Finally, it was contended that in so far as P said that she “sort of, really not” understood it was wrong, that was contrary to her evidence as to learning about unlawful sexual assault at a school lesson.  It was her evidence that learning for the first time, at that lesson, that sexual assault was unlawful, was what prompted her to speak to her father about what Mr Spierenburg had done.
55. The contention assumes a complete recollection and a perfect translation of it as between a child and her father, on an occasion of (the jury may well have thought) which was one of tension and discomfort for P.  I do not consider that there is such an inconsistency as would warrant the conclusion that it evidences a liar, rather than a child witness trying to recall events of some discomfort.
56. The evidence of P was that she told her father about the assault so that he “could do something about it”.^[79]  She found it hard to explain what she meant but said:

“… not taken away, but … mum and [Mr Spierenburg] were, like, dating at the time, you could say, and I didn’t really, you know, like having [Mr Spierenburg] there, because he would always get mad and stuff. So I went to dad to see if he could do something about it, like – I don’t know what to do something about it, but to do something about it. I don’t know.”^[80]

57. Then P was asked a leading question “To get [Mr Spierenburg] out of the picture?”  P agreed but in a qualified way: “In a way. Yes”.^[81]
58. I do not consider, contrary to the contentions for Mr Spierenburg, that this demonstrates a reason why P may have invented the story of the assault.  On her evidence P had just discovered that what he had done to her was unlawful, and she thought she should raise it with her father.  There was no challenge to the fact that there had been the lesson at school where the students were told that sexual assault against a child was unlawful, and the evidence of P’s father supported her version as to how the conversation originated.^[82]  Further, the account by the father, that P did not speak to her mother about it because P did not want her mother and Mr Spierenburg fighting,^[83] echoed P’s evidence that she did not like Mr Spierenburg there because “he would always get mad and stuff”.^[84]
59. Having done that which is mandated by M v The Queen and SKA, in my view it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of Mr Spierenburg’s guilt.  There was a consistent core to P’s evidence as to what occurred, supported by substantial detail as to the occasion, what she was wearing, what was done, and how it was done in terms of the particular physical motion.  That core of evidence was not undermined by cross-examination which, by its nature, caused P (at times) to become confused as to what was being asked, and upset and angry on some occasions.
60. I have viewed the DVD’s of both the police interview and the pre-recorded evidence of P.  Senior counsel for Mr Spierenburg urged that course at the appeal, saying there was some benefit in doing so.^[85]  In doing so I have borne in mind the fact that this Court does not have the benefit of reviewing the evidence of P’s mother and father in the same way.
61. Whilst the jury could very well have formed the view that P was a confident, outspoken and precocious child, I do not consider that they should have formed the view that she was the unreliable, untruthful story teller that the submissions on appeal portray her as.  In particular, she was quite definite and firm in her rejection of the repeated suggestions that she had made up the account of being assaulted and the fact that she had permission to sleep downstairs.  After voicing her discomfort at talking about the actual physical details, she was clear in her description of the assault, and equally reluctant to be drawn into giving supposed details of that which she said she did not remember, such as the things done before getting into bed.  That differentiation in memory is not hard to understand, given that P might remember the actual assault with a clarity that was not reserved for the peripheral or more mundane activities.
62. There were reasons why the jury could have discounted the evidence of P’s mother, that there was never a “yes” to sleeping downstairs, and no time other than when P went to watch videos.  This Court does not have the advantage that the jury had, of seeing P’s mother give evidence.  The jury was therefore in a better position to make an assessment of her evidence.
63. I have come to the conclusion that there is not a significant possibility that an innocent person has been convicted.

The trial judge’s report

64. Under r 94(2) of the Criminal Practice Rules 1999 (Qld) a trial judge may give a written report as to (relevantly) “the case generally” or “a point in the appellant’s case”.  Here, the report draws attention to remarks made after the verdict was given, but before sentencing.  Those remarks expressed the trial judge’s “significant reservations about the verdict, particularly in view of the evidence given by the complainant and the nature of the evolution of that complaint”.
65. In my view, whilst this Court should be cautious about declining to act on a trial judge’s report,^[86] there is good reason in this case why it should not be acted upon.  The task of this Court, given the ground of appeal, is to make an independent assessment of the whole of the evidence, both as to its quality and sufficiency.^[87]  The opinion expressed in the report is based substantially, if not solely, on P’s evidence, all of which was recorded on DVD, and presented to the jury in that form.  This Court must make an independent assessment of that same evidence, in that same form.  In that situation, this Court should decline to act on the opinion in the report.

Conclusion and orders

66. For the reasons given above, the appeal should be dismissed.
67. I would propose the following order:
    1. The appeal is dismissed.
68. PHILIP McMURDO JA:  I have not watched the recording of the complainant’s evidence or her police interview.  Mr Heaton QC, for the appellant, said that there would be some utility in doing so, for what might be made of the complainant’s demeanour.  But as he also said, the use which might be made of the recordings was affected by the absence of a recording of other witnesses.
69. Most importantly, there was no video recording of the evidence of the complainant’s mother.  Only by rejecting her evidence could the jury have reasoned to a verdict of guilty.  That circumstance, in my view, provided a good reason not to view the video recordings in this case, just as it did in SKA v The Queen.^[88]
70. Otherwise I agree that for the reasons given by Morrison JA, the appeal should be dismissed.