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R v Chardon[2017] QCA 253

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Chardon [2017] QCA 253

PARTIES:

R
v
CHARDON, John William
(appellant)

FILE NO/S:

CA No 187 of 2016

DC No 358 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 13 June 2017 (Kingham DCJ)

DELIVERED ON:

31 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2017

JUDGES:

Fraser and McMurdo JJA and Mullins J

ORDER:

Appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children – where all four children present on the day of offending were under the age of 12 – where there were inconsistencies between the children’s recollection of the events – where important aspects of the complainant’s evidence were internally inconsistent or were contradicted by other evidence – where the appellant has appealed against the conviction on the grounds that it was unreasonable and cannot be supported having regard to the evidence – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children  – where all four children present on the day of offending were under the age of 12 – where the first three of the four counts were of indecent treatment of a child with circumstances of aggravation – where the fourth count was of rape – where the appellant was convicted of count 3 – where the appellant has appealed against the conviction on count 3 on the grounds that it was unreasonable as it was inexplicably inconsistent with the acquittals on counts 1, 2, and 4 – whether there was a rational explanation for the acquittal on counts 1, 2, and 4 – whether the conviction on count 3 was impermissibly inconsistent with the acquittal on counts 1, 2, and 4

Criminal Code (Qld), s 668E(1)

Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited

R v Clapham [2017] QCA 99, cited

R v Kirkman (1987) 44 SASR 591, cited

COUNSEL:

P Davis QC, with A J Kimmins, for the appellant

M T Whitbread for the respondent

SOLICITORS:

Paddington Law for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  The appellant was charged on indictment with four sexual offences alleged to have occurred at the appellant’s residence on a day when the appellant was the only adult present.  The complainant in count 1 (“A”) was an eight year old boy.  His seven year old sister (“B”) was the complainant in counts 24.  Counts 1 and 2 charged the offence of wilfully and unlawfully exposing a child under 16 years to an indecent act.  Count 3 alleged that the appellant unlawfully and indecently dealt with B.  Counts 1-3 charged the circumstances of aggravation that the child was under 12 years and was under the care of the appellant.  Count 4 alleged that the appellant raped B.
  2. The Crown gave particulars of each count in the indictment, which were reflected in the trial judge’s directions to the jury.[1]  The particulars of count 1 identified the alleged indecent act as the appellant approaching and entering the swimming pool while naked and alleged that A saw the appellant’s penis at that time.  The particulars of count 2 identified the alleged indecent act as the appellant approaching and entering the swimming pool while naked and alleged that B saw the appellant’s penis at that time.  The indecent act alleged in count 3 was particularised as rubbing B’s vaginal area.  Consistently with references in the particulars to B’s evidence, the trial judge directed the jury that the prosecution was required to satisfy the jury beyond reasonable doubt that the appellant rubbed B’s vaginal area with a towel.  The particulars of count 4 alleged that the appellant penetrated the anus of B with his finger.
  3. The jury found the appellant not guilty of counts 1, 2 and 4, and guilty of count 3.  The appellant appealed against the conviction on count 3 on four grounds, but the appellant subsequently abandoned grounds 3 and 4.  The remaining grounds of appeal are:

“1. There has been a miscarriage of justice in that the guilty verdict of the jury for Count 3 is against the weight of the evidence and/or otherwise unsafe and unsatisfactory.

  1. The guilty verdict of the jury for Count 3 is inconsistent with the Not Guilty verdicts for counts 1, 2 & 4.”
  1. It was made clear by senior counsel for the appellant at the hearing of the appeal that ground 1 is intended to invoke the ground in s 668E of the Criminal Code, “that the verdict of the jury should be set aside on the ground that it is unreasonable”.  The principles the Court must apply in deciding whether that ground of appeal is established were discussed in R v Clapham:[2]

The principles to be applied in determining whether a verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are collected in SKA v The Queen.  The question is not whether there is as a matter of law evidence to support the verdict.  Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.  The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.  In considering this ground of appeal the “starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses”, but:

“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.”

In R v Baden-Clay the High Court emphasised that the jury is “the constitutional tribunal for deciding issues of fact”[3] and observed that, “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … 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”, “a court of criminal appeal is not to substitute trial by an appeal court for trial by jury”, and “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’.”  (footnotes omitted)

  1. As to the contention in ground 2 that the guilty verdict on count 3 is inconsistent with the not guilty verdicts for the other counts, in MacKenzie v The Queen,[4] Gaudron, Gummow and Kirby JJ quoted with approval a statement by Devlin J in R v Stone[5] that the appellant “must satisfy the court that the two verdicts cannot stand together meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”  Their Honours then explained that, “the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have lead courts to express repeatedly in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense” and that:

“…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.” (I have omitted citations)

  1. After referring to an alternative view that the appellate court might conclude that the jury took a “merciful” view of the facts upon one count, and remarks by King CJ in R v Kirkman[6] that in some cases the jury might conclude “that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number”, Gaudron, Gummow and Kirby JJ referred to “a residue of cases…where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.  Their Honours expressed the test as being whether “the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice”.

The evidence

  1. A and B’s mother worked for the appellant’s company and she was a friend of the appellant’s eldest and second eldest daughters (aged 28 and 27 respectively at the time of the offence), and also a business partner with the appellant’s eldest daughter in a market stall.  The appellant also had two young children.  His youngest daughter (“C”), was nine at the time of the alleged offence and his son (“D”), was seven years old at that time.  The four children (A, B, C and D) came to know each other well.  The evidence suggests that they played with each other on many occasions.
  2. Each child made statements in a police interview about five months after the events which were admitted in evidence in the Crown case under s 93A of the Evidence Act 1977 (Qld).  Each child also gave pre-recorded evidence, under s 21AK of that Act, about one year and eight months after the events. Because of a technical problem in the recording of B’s evidence, she participated in a second pre-recording, about two years and three months after the events.  Preliminary complaint evidence was given by A and B’s mother, her sister, and a friend of hers.

A’s evidence

  1. In A’s s 93 statement, A said he thought the relevant events occurred either on Easter Sunday or on New Year’s Eve.  He was unable to say which.  It is evident from his statement that he was unsure whether the events happened on a Saturday or Sunday.  A said that he and D went swimming first and then B and C came to the pool.  After they arrived, the appellant “came in naked” wearing goggles.[7]  A did not know when the appellant took his clothes off.  A described seeing the appellant’s penis and his bottom.  A said that he forgot to tell his mother that he saw the appellant swimming naked in the pool.[8]  When he and D were inside the house he heard the appellant ask B whether she wanted to have another look at his penis, to which B responded, “eww”.[9]  (A also said in that context that the appellant pointed at “the thing”.  A did not explain how he could have seen that from inside the house.[10])  In A’s pre-recorded evidence he agreed in cross-examination that he heard his sister speak about the events when their mother was also present.  During that conversation, A remembered an occasion on a weekend before the events occurred when the appellant hit him repeatedly with a wooden spoon.  A agreed that was the only thing he told his mother about the events at the appellant’s place.  A said that B told their mother about everything the appellant did to her.  He agreed that their mother and the appellant’s second oldest daughter had a massive falling out at about this time.  Their mother hated the appellant’s family.  A agreed that, before he went to the police station to speak about the events, he had heard his sister speak about that weekend to their mother.  A said that he and the other children had two swims on that Sunday morning.  He thought he had told the police that he had had two swims.  He then said that he had one swim and B had two swims.  A saw the appellant take off his shorts and underwear and put his goggles on so that he was naked.  He saw the appellant dive into the pool and start swimming up and down the pool, following B.  A said that he heard B tell their mother that the appellant pointed at his penis and asked B whether she wanted to have one more look at that.  He also said that B told him that when she got out of the pool.  He said that he had told the police that his sister had told him that.  (He had not told the police that.)  A made it clear that he had not seen that event.[11]

B’s evidence

  1. Towards the beginning of B’s s 93A statement, she stated:[12]
    1. “I think it was the start of Easter or something like that … I went to … my friends house and um there was this old man swimming naked in the pool … when it was end of pool time he was standing in front of the pool and he said do you want to have one more look at my private part but he actually pointed at it he didn’t say private part” (Count 2)
    2. “and then um when we got out of the pool I had a shower … and … I called my best friend to get me a towel … and then all of a sudden I saw the old man walk in with a towel holding in his hand … and then he just came in and started drying me and putting the towel through my bottom and poking it and poking through my bottom hole and it was really starting to hurt a bit …” (Count 4)
    3. “and um then he was rubbing my private part with a towel and stuff really hard and it was hurting and then five minutes later he said don’t let anybody wipe you but me and your mum”. (Count 3)
  2. B said that she got changed and was playing with her friend “that I went to’s house and then mum came five minutes later and um I didn’t tell her because I forgot the whole story and one day she reminded me about [the appellant] and I just remembered so I told her”.  Later in the interview, B said that five minutes after the appellant rubbed her vagina, B was playing with C “and then mum just came, mum came and picked me up”.[13]  B was sure this happened at the start of Easter or something like that, or close to Easter.  It was a weekend when she slept over at her friend C’s house.  In response to a question by the police officer about the time of day when B arrived at the appellant’s house, B responded, “I’m not really sure I think it was like well I’m not sure about that question um it had to be like between 12 and 1 o’clock probably”.[14]  When asked whether it was dark or light when she arrived, B said, “I think I got there at lunch time”.[15]
  3. Later in the statement B said that after the appellant had swum naked and everyone went inside the appellant “was standing in front of the pool and said um do you want to have one more look at he didn’t say private part but he said the wrong thing … and I covered my eyes walking up the stairs out of the pool and then I ran inside without looking at him”.[16]  When the complainant was asked to describe the appellant’s penis she responded, “I’m not sure cause I didn’t see it”.  When asked when the appellant took his clothes off she said that was “outside the pool area”.  When asked who was present when that happened B referred to A, C, and D and said that when they were all finishing in the pool there was only B and the appellant left, B swam away from the appellant because he was naked and she was not.  She did not like it.  When they all got out of the pool was when the appellant said “do you want to have one more look at this”.  The police officer later asked whether B saw the appellant taking his clothes off.  She replied:

“No I was turning around, as soon as he started lifting his shirt I turned around … And I started swimming underneath the water like a dolphin so I wouldn’t even have to look at him … Um he just started like lifting his shirt up and I’m not sure how he took his pants off cause I didn’t see … I used to swim away …”.[17]

  1. B said that when she was in the shower and had called out to C to get her a towel and the appellant had walked in with a towel in his hand, “he started wiping me up my bottom and on my private part and he was sticking his finger up my bum cheeks and really was annoying me”.  She identified her private part as her vagina and said that the appellant was “rubbing it really hard and it was stinging a bit” for about five minutes.[18]  B also said that C had a shower before she did.  B said that the appellant dried her on her “private part and my bottom and my tummy and my leg, basically my whole body”.  When asked to tell more about when the appellant put his finger inside her bottom, B said that the appellant “opened my bottom cheeks and then just sticked his finger with the towel and then was just putting his finger in circles like that and rubbing it and it was stinging in both spots in every spot”.  When asked how far in her bottom the appellant’s finger with the towel went she said, “Up to my bum”.  B also said that the appellant’s finger went inside her anus “A little bit”.  She subsequently described that in terms which suggested half the length of her finger.  Towards the end of the s 93A statement, the police officer asked again about count 4.  The complainant described the appellant “poking his finger through like that and putting it in circles”, apparently referring to the appellant having the towel over his finger at the time.  The complainant said that this was “Stinging, hurting”, and she also said it was “Stinging just stinging”.[19]  She said that C and D did not say anything when their father started taking off his clothes.  The complainant did not say anything to C after the complainant got out of the shower, “cause I forgot about it”.
  2. On the first occasion when B gave pre-recorded evidence, B said that the first person she told about the events was her mother.  She told her about three and a half months after those events.  She could not say how long it was before she went to the police that she had told her mother.  Her recollection was that her mother had driven her and A to the appellant’s house, arriving in daylight, and her mother had stayed for a short time and then left.  When it was put to her that she said that she had arrived at the appellant’s place between about 12.00 pm and 1.00 pm, she said that she remembered saying that but it was a mistake because she thought it was 7.00 am or 8.00 am or “around morning and afternoon”.[20]  When subsequently asked about the timing, she said it was “maybe” between 12.00 pm and 1.00 pm and “I think 12.30”.[21]  It is evident that B was quite unsure about the time when she arrived.  She agreed with the leading question that it was “definitely daylight”.[22]  B said that she stayed overnight and her recollection was that her mother came and picked her up.  She expressed uncertainty about that and did not know what time that her mother picked her up.  When defence counsel asked “if” B was there the next day, was it morning, lunch or afternoon that she left, B answered that she “would say” that it was about half an hour before lunch.  Again it seems evident that B was quite uncertain about the time she left.  B’s recollection was that shortly after her mother left, B, with A, C, D, and the appellant, started playing in the pool.  She agreed that they all got into the pool at the same time.  B thought they were in the pool for about half an hour before they got out.  C then had her shower in the bathroom, followed by B.  B said that the appellant was in the pool for the whole length of time that B and the other children were in the pool.  Defence counsel put to B that the appellant got out earlier and went inside to make sandwiches.  B agreed that he did make some sandwiches.
  3. Defence counsel asked B when she saw that the appellant had no clothes on.  She answered:

“When – I think – I think before we had a shower, we wanted – about after the sandwiches – we had to wait five minutes, because we had to let our tummies rest, but I think we went in the pool and I think that’s when he swam naked.  And our bathers were in the washing machine and I had a spare pair of undies and I put them on.”[23]

  1. B then agreed that all the children had swum in the pool both before and after the appellant gave them sandwiches to eat.  She agreed that the second time they went into the pool was when the appellant was naked.  She appeared to assent to the suggestion that she had remembered the appellant wearing little black Speedo trunks during the first occasion when they were in the pool.  B said that on the occasion of the second swim, C and D were naked and she could not remember whether or not A was naked.  When C got out of the pool she was naked, but she put a towel on.
  2. When it was subsequently put to B that, when she was asked in the police interview to describe the appellant’s penis, she had responded that she was “not sure because I didn’t see it”, B replied by indicating that she had put her hands up in front of her face and turned her head away, because it was disgusting.[24]  She agreed that she had not actually seen the appellant’s penis when everyone was getting out of the pool for the second time, when the appellant had asked her whether she wanted to have one more look at the penis.  B denied that she had not seen the appellant with no clothes on at any stage during the Easter weekend.[25]
  3. Subsequently after defence counsel took B through the chronology again, B said that she was getting confused.[26]  When asked about the second time in the pool, B said that she saw the appellant when “he came out naked”.[27]  Defence counsel put to B that the appellant walked out of the house with no clothes on.  B agreed.  She agreed that she saw the appellant walk into the pool without clothes on.  This exchange followed:

“What did you do when you saw that?---Well, the main thing I done – well, I didn’t – I just like – I was – like I just went like that, but I didn’t roll my eyes.  I just went – I just turned around.

[In the complainant’s second pre-recorded evidence, she explained that she “turned my head, and I covered my eyesight and I didn’t look.”[28]]

And did you then see him get into the pool?---He – yeah, I did see him get in the pool.

You saw him get in.  Yep.  And then how long did he stay in the pool with you?---Until all of us got out.

And how long did that end up being, approximately?---A bit lower than half an hour.

Right.  And in that period of time when he was in the pool, you didn’t see the bottom part of him?---No.

And then [after D and C left] what happened to you and [C]?---[C] went out and they all went inside and then I was still getting out of the pool because I had one more jump and I was swimming to the stairs to get out.  And then [the appellant] stood up outside the stairs and said do you want to have one more look at this and I went like that and went eww.

All right.  So there was only the two of you outside?---Yes.

And it was – what did you do that after?---We went inside and I sat on the couch and I took my wet – I think I took my wet – after the second time I took my wet undies off, I think I put them in the wash too and then I just left my dress on and then when we got in the shower I took my dress off and had a shower.”[29]

  1. Defence counsel suggested to B that she “said you saw [the appellant] come from the house with no clothes on”.  B agreed.  When asked whether he had “a towel with him at all or was he just completely naked”, B replied that he was “Completely naked”.  Defence counsel suggested that it was clear in B’s mind that she saw him walking towards the pool from the house with “not a stitch of clothes on”.  B replied, “Not even a crumb of clothes”.  Defence counsel suggested that B had told police that “[the appellant] took his clothes off whilst he was outside at the pool area”.  She replied, “No.  No.  No.  He didn’t take his clothes off outside the pool area.  He was inside and I think he took his clothes off in there and then he came out naked … But he probably did get undressed outside but I just didn’t see him”.  B agreed that she had told defence counsel that she saw the appellant walk from the house with no clothes on.  Defence counsel suggested “that would tend to mean that he was walking from inside the house out to the pool … and he was completely naked”.  B agreed.
  2. When asked whether B looked at her best friend, C, to see whether she saw what was happening, B said that she did not, but “… like – I just – as soon as I saw he was naked, like coming out of the house naked I turned around and then that’s when he was just near the stairs and coming in”.  B agreed that she saw the appellant’s penis before he got into the pool.  She thought that she was the only one looking in the direction of the appellant before he got in the pool.  Because she saw him get in the pool naked, obviously he was naked in the pool.  Whilst in the pool she could not see from the appellant’s waist down.  She was not upset, but she was a bit worried.[30]  B said that the appellant got out of the pool before her, he pointed at his penis and asked her whether she wanted to have one more look at it.  B went into the house before the appellant.  She thought he had got a towel and put it around himself.  B said that after going into the shower she called out for C to get her a towel.  B disagreed with the suggestion that C did not have a shower after swimming.
  3. B said:

“Okay.  Well, I got out of the shower and I called [C] to bring me a towel and [the appellant] walks in with a towel.  And then he starts drying … my front rude part and it was stinging and hurting.  And then he was rubbing my backside.  And he sticked his finger up in there with the towel and was rubbing it around like that and then sticking it up more.”[31]

  1. B agreed that after C went to the bathroom, showered and got changed, B went into the bathroom and had a shower.  She thought the appellant had turned the shower on because she did not know how to do it.  She was in the room having closed the door by herself.  B subsequently said that after she called out for a towel, the appellant came straight away and he closed the door as he came in.  At a later point in the cross-examination B said that the appellant was squatting on his knees, bending down, when he was drying her rude parts.  Her bottom and vagina were stinging when he finished.  B did not ask the appellant to stop because she was scared the appellant would hit her with the wooden spoon, as he had done to A before when A had got toothpaste on B’s shirt.  After the appellant had finished drying B, she got dressed and played with C for a long time.
  2. B agreed she had told the police officer that she did not say anything to C about what the appellant had done.  She forgot about it and was scared the appellant was going to hit her with the wooden spoon.  She disagreed that she had no memory of it at all.  She did not “quite remember … and … I got my memory back”.  When her mother mentioned something about the appellant, B remembered and started to talk about it.  B agreed that when she watched the video of her police interview she only mentioned to the police about swimming on one occasion.  On the way to the court she had spoken to her mother about how many times she went swimming, after B had watched the police interview.  After watching the video, B realised that she had forgotten to say she went into the pool a second time.  She told her mother and her mother said that she would just have to say it on this occasion.  B agreed that in her police interview she indicated that she had been dropped off and picked up from the appellant’s place by her mother on the same day, but after she watched the police interview before giving evidence she remembered she had forgotten about sleeping over, or was not thinking because she was only seven years old, and she remembered that there was an Easter chocolate under her pillow when she woke after sleeping over.  She denied that her mother helped her to remember this.
  3. Defence counsel referred to B’s statement in the police interview that, after the appellant told her not to let anybody wipe her except the appellant and her mother, “I got changed and everything and then I was playing with my friend that I went to’s house and then mum came five minutes later”.  B said that was not true, but it was what she was thinking at the time because she was seven.  She knew more now, and she had got her memory back much more after watching the video.  She did not mean five minutes after the events, because she woke up in the morning and there were Easter chocolates under her pillow.  Her mother had nothing to do with her memory getting better and had not told her that she was picked up the next day.
  4. B said the first time she remembered what had happened she told her mother.  On the way to the court in the car her mother had told her that they had to say what happened and tell the truth and she could not help A or B with anything.  B agreed the one thing she could be satisfied on was that the next day her mother came and picked her up from the appellant’s home.  She did not remember where she went after she was picked up.  Defence counsel cross-examined B at length about how and when she and A were taken to the appellant’s house.  B’s memory was that they were dropped off on the Saturday before Easter during the morning by her mother and went to the pool twice on that day.  When it was put to B that the only time during the weekend when she and the others went in the swimming pool was on Sunday morning, she responded that they “went in two times”.  B did not give a clear answer to the question whether this was on Saturday or Sunday.
  5. Towards the end of the cross-examination, B agreed that: her mother was taken by ambulance to the hospital on Easter Sunday morning; the appellant drove A, B, and the appellant’s eldest daughter to the markets, where they stayed until the appellant’s second oldest daughter took them to her place for the rest of the afternoon and into the night; A and B (and possibly C, D, and the appellant’s eldest daughter) had dinner at the appellant’s house with the appellant that night; during dinner, B spent about half an hour on the telephone to her mother’s parents; and later on Sunday night the appellant’s second oldest daughter drove A and B to the hospital to collect their mother, and then drove the three of them to their home.
  6. B agreed that just before she told her mother about the appellant doing things, her mother and the appellant’s second oldest daughter had a very big fight and decided they did not want to have anything further to do with each other.  B’s mother was very, very angry with the appellant’s family.

C’s evidence

  1. In C’s s 93A statement she referred to an occasion when A and B and their mother came over because A and B’s mother was having some problems at work.  She recalled that it was around Easter that A and B had a sleepover at Easter and on Easter morning they were given chocolates.  C thought they came over at night.  At about midday on the following day they woke the appellant and went swimming.  The four children were in the pool and the appellant went in for a little bit, which C thought was about half an hour.  C said that the appellant wore underwear that he usually wore in the pool.  The appellant got out of the pool first to make lunch.  C and B then got out of the pool because B did not like being with the boys, and they were followed by A and D.  She said that she and B got changed in the bathroom.  They then went in to the kitchen, where the appellant served sandwiches.  She said that the appellant sometimes swam with nothing on.  He did not swim naked on the day near Easter.  C described having seen the appellant getting out of the pool, drying himself, and sitting down in a chair whilst he looked at his phone.  She said she was eating when the appellant was doing that.  When the police officer asked whether that was when the appellant had got out of the pool, C replied, “hold it okay got out of the pool and now this is hard”.  C was then asked where she was when she was watching the appellant, and she replied, “I didn’t go in the bathroom”.  When asked how she could see the appellant from the bathroom, C responded, “That’s what he normally does I guess”.[32]
  2. C said she was in the bathroom when the appellant first got out of the pool, but she later repeated an earlier statement that the appellant was the first person to get out of the pool.  She said that he sat himself down and looked at his phone and went inside.  She said that while the appellant was doing that, B and C were drying themselves and going inside to the bathroom.
  3. C said that the appellant did not help to dry her or B.  She did not know whether the appellant helped the boys get dried or dressed.  The appellant did not say anything to anyone while C was in the pool.  The only things that the appellant said to B during the day were, “hi and how are you today and just random hellos and byes”[33].  C said that after lunch the appellant drove the four children to A and B’s place, and the appellant drove C and D home after staying for a little bit.  C described being with B for all of the time B was at the house, except for one period of about 10 or 15 minutes when B left the lunch table to go to the toilet.  At that time C thought that the appellant was still getting changed or maybe having a shower; she was not sure.  C then said she remembered the shower going.
  4. In C’s pre-recorded evidence she said that what she told the police officer in the s 93A statement was true.

D’s evidence

  1. In D’s s 93A statement he said that he did not remember when he was asked to tell everything about the last time B came to visit.  When asked whether she visited around Easter he said that he thought it was like a month after Easter.  He repeated that he could not remember about the last time B came to visit.  He agreed with a leading question that B swam in the pool at D’s house.  D described the children playing a game in the pool.  Later D said that C played with B and D played with A, A and B were hiding from their mother, and D thought B had a sleepover but he did not know.  When pressed to say more about that day D said that he thought that they came at 10.00, “and that’s all I know”.[34]  He described additional games the children played.  After referring again to games the children played in the pool, D said that he did not know whether B came to the house and had a swim around Easter time, but later he added that it was Easter because they had a roast dinner and he thought they had a swim.  D described what the children were wearing and said that the appellant was just wearing his black swimming underwear.  D could not remember everything about swimming.
  2. After D referred to the roast dinner, he said that half an hour later they went swimming and then they later watched television.  Subsequently, D referred again to swimming, said it was the same swimming time he had mentioned, and he said that after the children went swimming A and B both went home and the appellant, C, and D went to sleep.  When asked who was at the house when they went swimming, D said that, in addition to the appellant and the children, the appellant’s eldest and second eldest daughters, and A and B’s mother, were also present.  D said that after getting out of the pool the only person to have a shower was the appellant.  A and B had been to his house before the time at Easter lots of times, they had been swimming at his house before, and he could not remember those times.
  3. In D’s pre-recorded evidence, he agreed in cross-examination that he gave truthful answers to the police officers.

Evidence of A and B’s mother

  1. A and B’s mother gave evidence that A and B stayed for Saturday night of the Easter weekend at the appellant’s house.  She took them there about 7 – 7.30 pm and left after staying for an hour.[35]  The next time she saw her children was at 9.00 pm on Easter Sunday, when the appellant’s second oldest daughter collected her from the hospital.[36]  About five months after that occasion, some five days before A and B were interviewed by police, A and B’s mother said to B that she would not be talking to the appellant’s second eldest daughter any more.  B told her mother that was good and she wanted to tell her mother something: the appellant had touched her.  After she had finished in the shower and called C for a towel, the appellant walked in with the towel and started to dry her.  The appellant pressed hard on her private part (she later said that the appellant hurt her when wiping her down on her private part) and then put his finger in her anus.  (In cross-examination, A and B’s mother agreed that B had complained of the appellant rubbing a towel against her vagina that really hurt and the appellant also caused her pain when he put his finger in her anus.)  B did not tell the appellant to stop because she was scared and thought she did something wrong.  B was scared because on an earlier occasion the appellant had hit A with a wooden spoon.  B said that the appellant wanted her to swim naked.  B did not want to take her bathers off.  When B went to get out of the pool at a similar time to the other children and the appellant, the appellant had no clothes on, he pointed at his private parts, and he asked B whether she wanted to have one more look at it.
  2. A and B’s mother gave evidence that her relationship with the appellant’s second oldest daughter was on the wane in the four months leading up to the time when B made disclosures to her and ending up in that month with them being involved in heated arguments.  In cross-examination, and in re-examination, A and B’s mother agreed that communications between them ceased on the day when B made disclosures to her.  She gave evidence that she had never had any argument or dispute with the appellant and the appellant had intervened on her behalf to help her in the dispute she had with one of the appellant’s daughters.
  3. In cross-examination, A and B’s mother agreed that, at times before and after the alleged offences and disclosures, she had sought assistance for herself and for A and B from medical practitioners, psychologists and counsellors and that she took medications because of concerns about her own mental health.  A had behaved disruptively and defiantly at school, he stole things, and he lied a lot.  She denied having hit A with a wooden spoon in the presence of the appellant and could not remember ever having hit A with a wooden spoon or a glue stick.  She admitted to some matters that could be regarded as affecting her credit, including claiming social security whilst she was employed, convictions for possession of a pistol without a licence, unlawful possession of a drug (cannabis), taking a drug into a prison, theft, and in relation to leaving her children at home unattended.  In re-examination, A and B’s mother said that the issues she raised with psychologists and others about A included that he lied constantly when he stole from friends or hurt someone, which was a phase he went through at primary school.  The issues concerning B did not include lying; they concerned her defiance of instructions, such as refusing to wash the dishes when told to, and being very bossy.
  4. The evidence of B’s mother and her aunt was that B spoke to her aunt by telephone and the telephone was on speaker at B’s mother’s end.  B’s mother said that she only heard bits and pieces of what was said by B and her aunt.  B’s mother could not recollect what she had overheard in that conversation, but agreed that she had signed a police statement on a date that was about 11 months after the telephone conversation, in which she said she overheard B saying: she called out to C for a towel when she was having a shower; the appellant came in with a towel and started to dry B; the appellant was touching her private and hurting her; the appellant put his finger in B’s bottom; it was stinging her; it was like a rub; and it was like patting a baby down after you take the baby out of the bath.  B’s mother said that she did not remember that in answer to a specific question by B’s aunt, B said that there had not been any interference or the appellant had not put his finger anywhere near her anus.
  5. A and B’s mother’s evidence was that B made disclosures to the friend the day after she had made disclosures to her mother.  A and B’s mother gave evidence that her friend spoke to B in her presence and she heard bits and pieces of the conversation; B did not say anything different to what B had already told her.

Evidence of A and B’s aunt

  1. A and B’s aunt (their mother’s sister) was told about B’s conversation with her mother.  (A and B’s mother said in her evidence that her sister spoke to B on the same day that B first made the disclosures, or on the following day; her sister’s evidence suggests that she spoke to B on the same day that disclosures were made to B’s mother.)  The aunt gave evidence that she telephoned the children’s mother, who put B on the telephone.  She told B that she was going to ask her some questions.  She first explained to B what a lie was, she made B repeat back to her what a lie was and who it could affect, and she asked B to confirm that she was not lying because a lot of people could get hurt.  B said that she knew that.  B said that she was at the appellant’s place getting out of the shower and the appellant touched her private parts.  B said it was “like a rub…it was like when you take…a baby out of a bath and pat them down”.  B said that the appellant had a towel in his hand.  He had not touched her bottom with his fingers.  His fingers did not go into any of her private parts.  When asked where the towel was.  B said it was in the appellant’s hand and he patted her legs down, like drying her off.  The appellant told her not to let other men or boys touch her.  B said that the appellant was in between her bum cheeks and he had a towel.  A and B’s aunt said, when asked whether B said anything in relation to what the appellant did with the towel, that, “I’m pretty sure she said that he was rubbing just her legs, he patted her, like he cleaned her…not in that wording, though”.[37]  In cross-examination A and B’s aunt agreed that in her police statement she stated that B reported that the appellant said, “You don’t let boys or other men dry you”.[38]

Evidence of a friend of A and B’s mother

  1. A friend of A and B’s mother gave the following evidence.  She went to her house after receiving a distressed phone call from A and B’s mother.  B said that the appellant was swimming naked in the swimming pool, he got out of the pool and pointed to his groin area, and asked B whether she wanted to have another look at that.  B said that she then went to have shower and called out for a towel.  The appellant brought her a towel and started drying between her legs.  He then put his finger up her bum and it hurt.  B said that the appellant told her not to tell anybody about that.  A and B’s mother was present for this conversation.  In cross-examination the friend repeated the substance of her evidence.  In relation to observing the man’s penis, B told her that she had said “Ew, gross”.  The appellant dried B’s body with a towel, she felt the finger in her bum and it really hurt.  There was no reference to the towel being inserted, rather than just the finger.

Other aspects of the Crown case

  1. An investigating police officer gave evidence, with reference to photographs, about the layout of the appellant’s house and pool.  The appellant made admissions about the dates of birth of the children and the dates of Easter Saturday and Sunday.  At the end of the evidence in the Crown case, the prosecutor amended the indictment to remove the words “or about” where they appeared before the words referring to the date of Easter Sunday in that year.

The appellant’s evidence

  1. The appellant gave evidence in his own defence.  Before the relevant Easter weekend A and B had been to his place.  They had stayed overnight on two previous occasions.  There had not been any swimming on any of those previous occasions.  His second eldest daughter persuaded him to act as babysitter for the four children on the night of Easter Saturday.  His daughter arrived with A and B, and their mother, at 7.30 pm.  B greeted him in the way she usually did, by rushing up to him and throwing her arms around him.  The children went off to play.  A and B’s mother, together with the appellant’s second eldest daughter, stayed for about an hour.  At about 9.30 pm the appellant refused the children’s request to go swimming.  The appellant fell asleep and was woken by C at 11.00 pm.  He made all the children go to bed.  After they did so he put Easter eggs and chocolates at the bottom of their beds.  At 7.30 am on the following day the appellant’s second eldest daughter woke him with a phone call.  The children were awake, eating their chocolates.  The appellant started to get their breakfast when the children asked if they could go swimming.  The appellant agreed.  The children got changed and went into the pool.  The appellant sat at the side of the pool with a cup of tea and his phone.  A and D persuaded the appellant to get into the pool.  The appellant went back into the house, changed into his black Speedos, and got into the pool.  He played with A and D.  B and C were playing by themselves.  The appellant heard the phone ringing inside the house so he got out of the pool, dried himself with his towel, and went to the house.
  2. The appellant’s eldest daughter was on the phone.  She told him that A and B’s mother had not arrived at the markets.  Shortly afterwards the appellant’s second eldest daughter rang and told him that A and B’s mother was very sick.  She asked the appellant to take the children to the markets later that morning to deliver them to the appellant’s eldest daughter.  The appellant told the children to get out of the pool and said he was going to have a shower and get changed.  B asked if she could have a shower and the appellant refused.  When the appellant returned from the shower the children were pretty well dressed and the appellant made breakfast for them.  Whilst the children ate breakfast the appellant took their wet clothes and put them in the dryer.  The appellant’s eldest daughter rang to ask when he would arrive at the markets with the children.  The appellant responded that he would leave at about 10.30 am.  Shortly afterwards the appellant’s second eldest daughter rang to confirm that arrangement.  The appellant left at about 10.30 am and dropped A and B off with her, talked for a little while, and then took C and D back to his place.
  3. The appellant referred to a list of phone calls prepared by his company’s accounts manager which recorded phone calls between the appellant and his two oldest daughters.  (The accountant gave evidence verifying the contents of that document.)  The document gave the times of those telephone calls and referred to places from which they had been made.  The appellant also referred to telephone conversations in the afternoon in which his second eldest daughter persuaded him to allow her to bring the children back to his place for dinner because A and B’s mother was going into hospital.  The children arrived about 6.40 pm and they had dinner.
  4. The appellant gave evidence that when his second eldest daughter brought A and B back that afternoon, B greeted him in her usual way, as.  The children were all getting on well together and he was talking with them.  A and B spoke to their grandparents on Sunday evening for about 10 or 15 minutes.  The appellant’s second eldest daughter then took them to the hospital to collect their mother, before taking them home.
  5. The appellant denied that he had ever hit A with a wooden spoon or at all.  Five months earlier, after the appellant had visited his second eldest daughter at her unit, he dropped in to A and B’s mother’s unit in the same building to say hello.  Whilst there he saw A and B’s mother hitting A with a wooden spoon in a cruel way.  The appellant threatened to report her to Children’s Services if he ever saw her doing that again.  A was screaming at the time.  The appellant denied that he had ever walked around his pool with no clothes on, that he had entered the pool with no clothes on, that he had touched B in the vaginal area or around her anus, or that he had inserted a finger into her anus.  In cross-examination, the appellant adhered to his evidence denying the alleged offences.  He agreed that he had no problems with A or B although they were a handful.  He did not have a great deal to do with them.  Subsequently, the appellant said that he had had to discipline A for pulling apart a toy.
  6. The appellant agreed that on one Sunday in the month before the alleged offences he had swum in the pool with A, B, C, and D, whilst his eldest daughter and A and B’s mother were at the pool.  The appellant had swum without any clothes before in front of his children when they were about two or three years old, when teaching them to swim.  He had not done that for about eight or nine years.  The appellant wore goggles when swimming sometimes but he said he was not wearing goggles when he swam with the children on the Easter Sunday.  There was no occasion when the children saw him wearing goggles in the pool.  The prosecutor established in cross-examination that the appellant had made some mistakes in his evidence about the content or time of phone calls he said he had received on Sunday morning.[39]  The appellant said B was at his house for three sleepovers (including the weekend of the alleged offences) and one other occasion when A and B’s mother called in with her children unannounced and after the children’s bedtime.  The reasons why he did not let the children shower included that they would take a long time and he wanted to get the children back to their mother.  He disagreed that he had two hours available for the children to have showers.  The appellant gave evidence that he was right-handed and he had lost the top of his right index finger, the part above the top joint and about 20 per cent of the next part, more than 30 years earlier.  The appellant agreed that there was not at any time any animosity between A and B’s mother and him.

Evidence of the appellant’s adult daughters

  1. The appellant’s oldest daughter gave evidence that A and B and their mother were at the market stall with her during the day on Easter Saturday until about 4.00 pm.  The appellant’s second eldest daughter gave evidence that at A and B’s mother’s request she asked the appellant if he could babysit A and B that night.  The appellant reluctantly agreed.  That evening the appellant’s second oldest daughter travelled with A and B and their mother to the appellant’s place, stayed there for a maximum time of an hour and a half, left the children there, and then returned to the apartment where A and B’s mother and the appellant’s second eldest daughter lived.  Both daughters gave evidence of A and B’s mother being sick on Easter Sunday.  Both gave evidence, with reference to schedules of telephone calls, about the arrangements for collecting A and B from the appellant’s place.  The appellant’s eldest daughter manned the stall at the markets herself during Easter Sunday.  She gave evidence that the appellant dropped A and B at the market stall just after 11.00 am.  (The appellant’s place was about 30 minutes by car to the markets.)  Both daughters gave evidence about a series of telephone calls after that, referring to A and B’s mother’s illness and arrangements for A and B to have dinner with the appellant and his family on Easter Sunday because A and B’s mother was in hospital.  The appellant’s second eldest daughter collected A and B from the market stall, took them back to her unit, and subsequently took them to the appellant’s place for dinner.  The appellant’s second eldest daughter said that it was a normal sort of dinner and there was no anxiety or angst expressed by anyone towards anyone else throughout the night.  B had tried to hurry her up to take her back to the appellant’s place for dinner.  The appellant’s eldest daughter said that she did not notice any difference in A and B from previous occasions.
  2. The appellant’s second eldest daughter said that her relationship with A and B’s mother started to wane over about two months after Easter and later they had arguments.  The appellant’s eldest daughter said that she had a fairly large argument with the A and B’s mother about a few months after Easter and ceased to have any personal contact.  She had seen A and B’s mother physically disciplining and being quite violent to A and B; she hit A with a glue stick, leaving welts on his back and his arm, which A later said he had incurred by being stung by a jellyfish, and A and B’s mother had pulled B’s hair, dragged her to the ground, and hit her.

Consideration

  1. It is common ground that the Crown case depended upon the jury accepting the reliability and honesty of the evidence of count 3 given by B.  The appellant argued that the guilty verdict on count 3 was unreasonable because important aspects of her evidence were internally inconsistent or were contradicted by other evidence.
  2. The appellant argued that in B’s s 93A statement B told the police officer that she had arrived at the appellant’s house with her mother between 12 and 1 o’clock and the children went swimming in the pool after her mother left, and B made similar statements in her pre-recorded evidence, whereas the evidence of the appellant, his two eldest daughters, and A and B’s mother was to the effect that A and B were left at the appellant’s house on  Saturday night and the appellant drove them to the markets on Sunday morning, leaving his place around 10.30 am.  The appellant also argued that there was an inconsistency between B’s s 93A statement and her pre-recorded evidence that in the former B described all of the relevant events happening in sequence on one occasion, whereas in the latter B referred to there being two separate occasions of swimming, the children having sandwiches in between those occasions, and the offence charged in count 3 occurring after the second occasion (see [14]-[16] of these reasons); other children did not give evidence of their time in the pool being interrupted by having sandwiches.
  3. In considering these arguments it is necessary to bear in mind that: when B was first asked what time her mother took her at the appellant’s house she expressed uncertainty about it before tentatively giving the times relied upon by the appellant (see [11] of these reasons); and B’s initial answers to defence counsel’s questions in cross-examination about the sequence of events were expressed in tentative term - when defence counsel put to B that the appellant had got out of the pool earlier than the children and went inside to make sandwiches, B responded, “I think after we all got out, I think he did make some sandwiches”), and when defence counsel shortly afterwards asked when B saw that the appellant had no clothes on, she responded, “I think before we had a shower, we wanted – about after the sandwiches – we had to wait five minutes, because we had to let our tummies rest, but I think we went in the pool and I think that’s when he swam naked”.[40]
  4. Importantly, the evidence does not suggest that the appellant lacked a reasonable opportunity to commit the offence.  The appellant agreed in evidence that on Easter Sunday he was in the swimming pool whilst the four children were in it.  It is a reasonable view of the evidence as a whole that this was the day upon which the events alleged by the appellant occurred.  On the appellant’s evidence that on that day he woke at 7.30 am and he left his place at about 10.30 am, there was ample time for the children to have swum in the pool with the appellant on two separate occasions, interrupted by the children having some food, and for the appellant to have committed the offence charged in count 3 in the way described by B.
  5. B’s narrative in her s 93A statement appeared to telescope the time within which events must have occurred.  Although it arguably implies that there was only one occasion when the children were swimming, that is not clearly expressed.  The jury might have accepted B’s evidence about the swimming having happened on two occasions, despite her failure to articulate that in her police interview and despite the other children (apart from A) suggesting that there was only one occasion.  On the other hand, the jury doubtless accepted that B was wrong about the time of day when she arrived at the appellant’s house, in thinking that the conduct of which she complained occurred on that day shortly after her mother left, and in thinking that her mother collected her from the appellant’s house.
  6. If B was wrong in all of those respects, that would not suggest unreasonableness in the jury’s verdict of guilty on count 3.  B’s inability accurately to remember the particular day of the offence, the sequence of the events on that day (if she was wrong about the sequence), or other details does not require a doubt to be held about her evidence of the offence itself.  Upon B’s evidence, she had particular reason to remember the conduct alleged in count 3, but there is no basis for assuming that all of the other details should have remained clear in her memory after the months that passed before she gave her statement to police.  The delay of about five months might reasonably be regarded as explaining mistakes about details of that kind in a young child’s memory.  That is even more clearly so in relation to B’s statements in her pre-recorded evidence about 20 months after the alleged events.  It would seem unsurprising if B were nevertheless able to recall the conduct charged in count 3.
  7. Other matters support the jury’s evident rejection of C and D’s evidence to the extent that it was inconsistent with B’s evidence of the appellant committing the offence in count 3 in the bathroom as D described.  There were indications of significant uncertainty in C and D’s recollections of the events of that weekend (see, in particular, the last three sentences of [28] of these reasons, [29], the second and the second last sentence of [30], and D’s protestations that he did not remember recorded in [32] of these reasons).  The jury also could have accepted B’s evidence of the other children swimming naked even though those children did not accept that account.  C and D evidently swam in the appellant’s pool with the appellant on many occasions, including with A and B on two earlier occasions, and C said that the appellant sometimes swam with nothing on (see [28] of these reasons).  From C and D’s perspective when they spoke to police some months after the Easter weekend, there may have been nothing to make the Easter weekend stand out from the earlier occasions when the children played together in the pool.
  8. The jury’s acquittal of the appellant upon count 1 is explicable upon the footing that, although the jury might have thought that A’s evidence of seeing the appellant come into the pool naked was correct, the jury was not prepared to find (as the trial judge had directed was necessary) that upon A’s (uncorroborated) evidence there was no reasonable doubt that A saw the appellant’s penis at that time.  Bearing in mind A and B’s mother’s evidence about A’s propensity to lie in that period, the jury also may have been unprepared to attribute weight to that evidence as corroboration of B’s evidence.  Plainly there is no inconsistency between the appellant’s acquittal on count 1 or his conviction on count 3.  Furthermore, A’s evidence was not inconsistent with B’s evidence of count 3.
  9. The appellant argued that there were important inconsistencies within B’s evidence about count 2, and, in particular, that she directly contradicted the statements near the beginning of her police interview that she saw the appellant swimming naked in the pool and that when he was standing in front of the pool he asked B whether she wanted to have one more look at his private part (see [12] of these reasons).  The effect of the appellant’s submission was that the inconsistencies undermined B’s credibility, or the reliability of her evidence, to such an extent that the conviction on count 3 was unreasonable.
  10. In this respect, it should first be mentioned that the trial judge directed the jury that the Crown case on count 2 was based upon B’s evidence that she saw the appellant intentionally approaching and entering the swimming pool naked while B was in the pool with the other children and in a position to see the appellant doing that.[41]  The trial judge directed the jury that the Crown did not rely upon the alleged act of the appellant getting out of the end of the pool, at the end of their swim, pointing to the groin, and asking B whether she wanted to have another look;[42] if the jury accepted B’s evidence about that act, the jury could use that evidence only for the purpose of deciding whether the appellant acted wilfully and whether his act of approaching and entering the pool naked was indecent.[43]
  11. The appellant contrasted clear statements in B’s s 93A statement, near the commencement of that statement, that she saw the appellant swimming naked and at the end of pool time she saw him point at his private part, and B’s statements in her pre-recorded evidence that she saw the appellant come from the house with no clothes on (“Not even a crumb of clothes”[44]) and B remembered seeing his penis before he got into the pool,[45] with B’s statements in the s 93A statement that she “didn’t see [his penis]”[46] and she did not see the appellant take his clothes off outside because she turned around as soon as he started lifting his shirt.  In order to appreciate the nature of the suggested inconsistencies it is necessary to refer to the evidence in some more detail.
  12. B’s description in her s 93A statement of precisely what she saw is not very clear, unsurprisingly in view of her young age.  Whilst she stated that she saw the appellant swimming whilst he was naked and after the appellant got out of the pool she saw the appellant point to his private part and ask her whether she wanted to look at it, she did not clearly say that at the time when the appellant approached and entered the pool (which was the only relevant time for count 2) either that she saw the appellant’s penis (which the trial judge directed the jury was a requirement for proof of count 2) or that she did not see his penis at that time.  She did clearly say in her pre-recorded evidence that she saw the appellant walking naked from the house to the pool and she saw his penis before he got into the pool.  If that evidence were accepted, it would satisfy the trial judge’s direction in that respect.  But the fact that B did not expressly say in her s 93A statement that she saw the appellant’s penis as he approached or entered the pool may have lead the jury to conclude that, although that was probably what B meant to convey, the jury should harbour a reasonable doubt about count 2 upon that point; and another factor that could reasonably be treated in the same way was that none of B’s mother, B’s aunt, or the friend of B’s mother referred to B expressly stating that she saw the appellant’s penis before he entered the pool; see [35], [38], [40], and [41].  (That is a reasonable and logical way of reconciling the differing verdicts on counts 2 and 3.)  It may not be appropriate to characterise these differences between B’s s 93A statement and her evidence (and before B’s various statements and the evidence of her mother, her aunt, and her mother’s friend about B’s discussions) as inconsistencies, but in any event they are not of such a nature as to cast doubt upon the reliability of her evidence of count 3.
  13. B’s statement in her s 93A statement that the appellant pointed to his private part and asked her whether she wanted to have one more look at it did not necessarily convey that she looked at the appellant’s penis on this occasion, but it was consistent with her having done so.  She referred to having covered her eyes at that point; it was in that respect that she said she “didn’t see it”.  She was not asked in her pre-recorded evidence whether she saw the appellant’s penis immediately before covering her eyes.  There was no clear inconsistency about that aspect of her evidence.
  14. B’s statements in her s 93A statement that the appellant took his clothes off outside the pool area and that she turned around as soon as he started lifting his shirt did not make it clear exactly where the appellant was when he took his clothes off.  There is an inconsistency between that statement and B’s evidence in her pre-recorded evidence that the appellant “didn’t take his clothes off outside the pool area.  He was inside and I think he took his clothes off in there and then he came out naked”, but that evidence was given in response to a suggestion by defence counsel that the appellant took his clothes off whilst he was outside at the pool area.
  15. There are some inconsistencies within B’s answers during her lengthy cross-examination.  For example, B stated the appellant “probably did get undressed outside but I just didn’t see him”, she agreed that her evidence that she saw him walk from the house with no clothes on tended to mean that he was completely naked when he walked from inside the house to the pool area, and B said shortly afterwards that she saw the appellant was naked “coming out of the house”.  She also agreed in her pre-recorded evidence, inconsistently with a statement in her s 93A statement, that she did not see the appellant start to take his shirt off.  Those inconsistencies are readily explicable by the lengthy period of time that elapsed between the relevant events and when B gave her evidence.  Inconsistencies of that character did not require the jury to doubt B’s evidence about count 3.
  16. In the course of argument the appellant acknowledged that the acquittal on count 2 could be reconciled with the conviction on count 3.  I agree: see the sentence in parenthesis in [62] of these reasons.  In addition, although the jury might have regarded B’s evidence about count 2 as probably being correct, the fact that it was contradicted by the evidence of C and D might have contributed to the jury finding that the Crown failed to prove guilt on count 2 to the exacting criminal standard of proof.  The difference between those verdicts simply suggests that the jury conscientiously followed the trial judge’s direction to “consider each count separately, evaluating the evidence relating to that particular count to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved each of the matters that it must…Your verdicts need not be the same.”[47]  Those different verdicts are not inconsistent.
  17. In relation to count 3, the appellant argued that B’s evidence about how she ended up in the bathroom, with the appellant and the towel was confusing and contradictory, and that her evidence was contradicted by other evidence that B did not have a shower after swimming.  These arguments do not justify a conclusion that it was not reasonably open to the jury to accept B’s evidence of what the appellant did in committing the offence in count 3.  The substance of B’s account in this respect was that, after she had a shower, she called C to bring her a towel, the appellant came into the shower room, and he rubbed her vagina with a towel.  B repeated statements to that effect in her s 93A statement and in her pre-recorded evidence, and preliminary complaint evidence to that effect was given by her mother and B’s mother’s friend.  The appellant referred to the evidence of B’s aunt that B said it was “like a rub” and like patting a baby down.  That is not necessarily inconsistent with B’s evidence of the appellant’s conduct in committing count 3: B’s aunt expressed uncertainty about the words B used (see [40] of these reasons); the question and answer technique she described may not have elicited all that B might have recalled on the topic (as she might have forgotten some things); and so much is suggested by the fact that B’s aunt did not refer to B mentioning that the appellant was naked at the end of the swim (as both B’s mother and her friend did mention).
  18. B’s first statement about count 3 was that after calling C to bring a towel and pass it thought the door, the appellant walked in with a towel in his hand “and … he was rubbing my private part with a towel …” (see [10](b) – (c) of these reasons.)  The appellant referred to these passages in the s 93A statement:
  1. “… I yelled out [C] could you get me a towel … and I told her to pass it through the door and all of a sudden I saw [the appellant] walking in with a towel in his hand … and then he started wiping me up my bottom and on my private part …”.  That passage is consistent with B’s first statement.
  1. “… I got out of the shower with a towel on me and then he just took it off and started drying me”.[48]  The reference to B having a towel on her may be a discrepancy, insofar as it suggests that there would have been no need for her to ask for a towel, unless the towel B had was already wet from use at the pool area.  To the extent that there was any discrepancy within the s 93A statement upon this issue, it was not of such a nature to require the jury to doubt the honesty and reliability of her account about count 3.
  1. The appellant also referred to the following passages in B’s pre-recorded evidence:
    1. “I got out of the shower and I called [C] to bring me a towel and [the appellant] walks in with a towel.  And then he starts drying my and then he starts rubbing my front rude part and it was stinging and hurting.  And then he was rubbing my backside …”.[49]  To the extent that this suggests that the appellant rubbed B’s vagina before he rubbed her backside, it appears in a different order from B’s initial statement about counts 3 and 4 in her s 93A statement; otherwise this evidence is consistent with B’s initial account. 
    2. When defence counsel referred to her statement in the s 93A statement that she had got out of the shower with the towel on and the appellant took it off and started drying her, B said: “he put the towel around me and then he took it off and then started, like, drying like me that like, like drying my body and then down there … He gave me the towel and I put it around me and then I got – because he put it over – like over the top of the shower door and then I came out with it wrapped around me and he took it off and started drying me.”[50]  These statements are inconsistent with these initial account in the s 93A statement that the appellant walked in with a towel in his hand and started to dry her.
  2. The inconsistencies in that respect deserved consideration by the jury, but they did not require the jury to harbour a reasonable doubt that the offence charged in count 3 happened in the way described by B.  It is again relevant to bear in mind that some inconsistencies in details of B’s account are to be expected in light of her age and the significant delay between the events and when she gave her pre-recorded evidence.
  3. The appellant’s submissions in relation to count 4 were not to the effect that inconsistencies in her evidence about that count alone suggested that her evidence was so unreliable as to render the verdict on count 3 unreasonable.  Rather, the appellant’s submission was that inconsistencies in the evidence upon this topic should be taken into account in support of the ground that the verdict of guilty on count 3 was unreasonable and that the acquittal on count 4 could not logically be reconciled with the conviction on count 3, particularly bearing in mind B’s evidence that the two events happened almost at the same time.  The appellant argued that there was no doubt that B alleged, in a detailed way, that the appellant penetrated her anus with his finger, with the towel over the finger, within seconds of him rubbing her vagina with the towel.  The appellant argued that it was not logical for the jury to find that B was credible and reliable in relation to count 3 when the jury rejected B’s evidence in relation to the digital penetration charged in count 4.  One of the respondent’s answers to this argument was that in B’s second pre-recorded evidence she described count 4 in a way which might have generated a reasonable doubt about penetration.  The appellant responded that, if that were so, it merely confirmed the existence of a further inconsistency within B’s evidence.
  4. The verdicts of guilty on count 3 and not guilty on count 4 are readily reconcilable upon the ground that, although the jury accepted that B’s evidence of count 4 was probably correct, the jury was not prepared to find guilt on count 4 beyond reasonable doubt in light of B’s aunt’s evidence that B said to her that the appellant had not touched her bottom with his fingers and his fingers did not go into any of her private parts.  The trial judge expressly directed the jury: to take into account any inconsistencies between the accounts of the mother, aunt and mother’s friend of what B said, and B’s own evidence;[51] that there was a conflict between B’s evidence and what she said to others, particularly what she said to her aunt about count 4:[52] and that was one of the features of the evidence leading to the trial judge warning the jury that it would be dangerous to convict the appellant of any of the charges on the evidence of A or B alone, unless, having scrutinised the evidence with great care, and paying heed to the warning, the jury were satisfied beyond reasonable doubt of the truth and accuracy of that evidence.[53]  The verdict of guilty on count 3 is not inconsistent with the acquittal on count 4 at least for that reason.
  5. It does not follow that the jury must have rejected B’s evidence of count 4.  The jury might have thought that her evidence was honest, generally reliable, and to be preferred to any inconsistent evidence, including her aunt’s evidence of the terms of B’s complaints; but that in light of the trial judge’s directions and the aunt’s evidence, the Crown had not satisfied the demanding standard of proof required for a conviction.  Upon that basis, the jury could conclude that there was also no such inconsistency in the evidence about count 4 as to suggest that B was an unreliable historian such as to create a reasonable doubt about her substantially consistent evidence about count 3.
  6. The appellant did not argue that there was no reasonable basis upon which the jury could find that the appellant’s own evidence did not require the jury to harbour a doubt about the appellant’s guilt on count 3.  In that respect, the jury could take into account, in addition to their impressions of the appellant when he gave evidence, that the appellant first said that there had been no swimming on any occasion before the relevant Easter weekend when A and B were at his place, but he subsequently agreed that he had swum in the pool with A, B, C, and D on a Sunday in the month before the alleged offences; the appellant’s evidence of B rushing up to him and putting her arms around him when his second eldest daughter brought A and B back to his house on the Sunday afternoon was not corroborated by the evidence of the appellant’s adult daughters; the appellant’s denial that he had entered the pool with no clothes on or ever walked around the pool with no clothes on was not readily reconcilable with C’s evidence that the appellant sometimes swam with nothing on or with the appellant‘s evidence that he had swum in the pool without any clothes in front of his children when they were two or three years old; and the appellant’s answers in cross-examination about the content and time of the phone calls with his adult daughters appear to suggest that the appellant had no recollection of some of those matters of which he gave evidence during his evidence-in-chief.
  7. No reason appears to doubt that the jury obeyed the trial judge’s direction that if they had any reasonable doubt concerning the truthfulness or reliability of B’s evidence in relation to any of counts 2 – 4, the jury was obliged to take that into account in assessing the truthfulness and reliability of her evidence generally.[54]  Some other, relatively minor matters concerning B’s evidence were mentioned in argument, but the cumulative effect of all the inconsistencies and weaknesses in aspects of B’s evidence, and the various inconsistences between her evidence and the evidence of other witnesses, is not so marked as to suggest that it was unreasonable for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on count 3.  The elements of that offence that B was under 12 years old and at the time of the offence the appellant had B under his care were not in dispute.  The evidence of B, with which the evidence of her complaints given by her mother, her mother’s friend, and (to a lesser extent) her aunt, was substantially consistent, made it reasonable for the jury to accept beyond reasonable doubt that the appellant rubbed B’s vaginal area with a towel, notwithstanding the sworn denials of the appellant.  The same evidence, together with the evidence of the circumstances in which the event occurred, readily allowed the jury to find beyond reasonable doubt that this act was indecent.  I conclude that the guilty verdict on count 3 was reasonably open upon the whole of the evidence.
  8. I have already explained my conclusions that the guilty verdict on count 3 is not inconsistent with the acquittals on the other counts (see [58], [62], [66] and [72] of these reasons).

Proposed orders

  1. I would dismiss the appeal.
  2. McMURDO JA:  I agree with Fraser JA.
  3. MULLINS J:  I agree with Fraser JA.

Footnotes

[1]  AB 798-800.

[2]  [2017] QCA 99 at [4]‑[5].

[3] Hocking v Bell (1945) 71 CLR 430 at 440.

[4]  (1996) 190 CLR 348 at 366-367.

[5]  Unreported, 13 December 1954.

[6]  (1987) 44 SASR 591 at 593.

[7]  AB 744.

[8]  AB 747.

[9]  AB 739, 745.

[10]  AB 745.

[11]  AB 757 line 40.

[12]  AB 652-653.

[13]  AB 658.

[14]  AB 655.

[15]  AB 655.

[16]  AB 656.

[17]  AB 659.

[18]  AB 657.

[19]  AB 662.

[20]  AB 680.

[21]  AB 680.

[22]  AB 681.

[23]  AB 685.

[24]  AB 722/5-20.

[25]  AB 724/40.

[26]  AB 692.

[27]  AB 693.

[28]  AB 731.

[29]  AB 693.

[30]  AB 697.

[31]  AB 690.

[32]  AB 775.

[33]  AB 778.

[34]  AB 786.

[35]  AB 198.

[36]  AB 199.

[37]  AB 280.

[38]  AB 284.

[39]  AB 401-405, 407-408.

[40]  AB 685.

[41]  AB 470/30-35, AB 471/32-45.

[42]  AB 471/36-45.

[43]  AB 472/28-473/2.

[44]  AB 694.

[45]  AB 696-697.

[46]  AB 656.

[47]  AB 470/20.

[48]  AB 657.

[49]  AB 690.

[50]  AB 712.

[51]  AB 466/38.

[52]  AB 468/16.

[53]  AB 468/1-5.

[54]  AB 471/5-10.

Close

Editorial Notes

  • Published Case Name:

    R v Chardon

  • Shortened Case Name:

    R v Chardon

  • MNC:

    [2017] QCA 253

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins J

  • Date:

    31 Oct 2017

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QDC 5919 Mar 2015Pre-trial applications for change of venue and/or no-jury order, on basis of prejudicial pre-trial publicity in respect of applicant’s possible involvement in disappearance of wife, refused; publicity not so prejudicial that it cannot adequately be addressed by jury directions; no other special features to warrant making of no-jury order: O'Brien CJDC.
Primary JudgmentDC358/14 (No citation)13 Jun 2017Date of conviction of one count of aggravated indecent treatment in respect of complainant B. By the same jury, Mr Chardon was acquitted of other sexual offences involving B and her brother A charged as occurring on the same occasion as the count of which he was convicted.
Appeal Determined (QCA)[2016] QCA 50 [2017] 1 Qd R 14804 Mar 2016Application for declaratory relief in respect of [2015] QDC 59 refused; question of jurisdiction of court to grant relief sought left open; discretionary considerations militated against granting relief: Gotterson and Morrison JJA. McMurdo P held that although the court had jurisdiction to grant the relief sought in exceptional or special circumstances, the applicant did not demonstrate the existence of such circumstances.
Appeal Determined (QCA)[2017] QCA 25331 Oct 2017Appeal against conviction dismissed; jury verdict not unreasonable; open on the evidence and not inconsistent with acquittals on other counts: Fraser and McMurdo JJA, Mullins J.

Appeal Status

Appeal Determined (QCA)

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