R v BDA[2017] QCA 48

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with the reasons of Morrison JA and Philippides JA for dismissing this appeal against conviction.
2. The jury were entitled to reject the appellant’s exculpatory evidence.  As the primary judge identified for the jury, internal inconsistencies in the 12 year old complainant’s account of the alleged offences, and inconsistencies between her account and the evidence of preliminary complaint witnesses made it necessary for the jury to scrutinize the complainant’s evidence carefully before accepting it as truthful and reliable.  The complainant, however, maintained her account that the appellant committed each of the offences on which he was convicted.  It was concerning that the complainant was prone to attention-seeking behaviour and that her school friend, AT, stated that the complainant’s account to her of the appellant’s conduct “kept changing, so [AT] didn’t believe about it. And then [she was] still not sure about some bits ‘cause they changed quite a lot”.^[1]  Nevertheless, the preliminary complaint evidence was consistent with the complainant’s account of counts 3 and 4 (the appellant’s photographing and touching of her vagina) and supported her credibility in a general way.  Her evidence on counts 3 and 4 was also supported by her mother’s evidence and by the subsequent pretext telephone conversation between her mother and the appellant and the resulting email trail.^[2]
3. The jury clearly heeded the judge’s warning as to the care to be taken with the complainant’s evidence before accepting it as they asked for it to be replayed.  The judge then referred them to the appellant’s exculpatory account and to the inconsistencies between the complainant’s account of the alleged offending and her account to the preliminary complaint witnesses.^[3]  The jury’s acquittal of the appellant of rape on count 8, convicting him only of the lesser, alternative count of indecent treatment of a child under 12, reflects the care they took in reaching their verdicts.
4. After reviewing the whole of the evidence at trial, I am well satisfied it was open to the jury to convict the appellant on each count.  I agree with the order proposed by Philippides JA.
5. MORRISON JA:  I have had the considerable benefit of reading the draft reasons of Philippides JA.  I agree with those reasons and the conclusion that, upon review of all the evidence, it was open for the jury to convict the appellant, notwithstanding the inconsistencies and variances upon which reliance was placed.  I wish only to add a few comments of my own.
6. In my view, there was one piece of the evidence which the jury may well have found quite compelling in terms of their acceptance of the complainant’s evidence as credible and reliable.  That evidence concerned the appellant’s taking photos (on his iPhone) of the complainant’s vagina while she lay on a couch.^[4]
7. The complainant herself gave evidence in her police interview^[5] that it was the appellant rather than herself who took the photos and that it was her mother who discovered them.^[6]  The complainant said that there were about five photos,^[7] and no photos were taken of her breasts.^[8]
8. The preliminary complaint evidence from four witnesses was all to the effect that the complainant had told them much the same thing.  Thus:

1. AT was told that it was the appellant who had taken the photographs;^[9]
2. TR gave similar evidence as to what the complainant said,^[10] and added that she had been told by the complainant that it was the complainant’s mother who had discovered the photos;^[11]
3. RD said that the complainant had told her that it was the appellant who took photographs of her vagina, and that it was her mother who had found them and deleted them;^[12]
4. KN said that she had been told by the complainant that it was the appellant who had taken pictures of her vagina.^[13]

9. The complainant’s mother gave evidence that she had discovered the photographs of her daughter’s vagina on the appellant’s phone, and had deleted them.^[14]  Her evidence was that there were four or five photographs.^[15]  She maintained that evidence in cross-examination.^[16]
10. The mother’s evidence also included the sequence of emails between herself and the appellant.  The text of those emails is set out in paragraph 29 of the reasons of Philippides JA.  Those emails all occurred on 14 August 2014.  As Philippides JA points out, the significant fact about them is that the complainant’s mother recorded that the photos she found on the appellant’s phone were photographs of the complainant’s vagina and the appellant’s response was to say that he did take photographs of her when she was on the couch and those photographs “were not of her boobs as she was wearing a light-green top”, and to say that if it was suggested that he had taken photographs of the complainant’s breasts, “then she’s lying”.^[17]
11. It was put to the mother in cross-examination that there were photos on the appellant’s phone, but they were photographs taken by the complainant herself, and had been discovered by the appellant, who in turn showed them to the complainant’s mother.^[18]  That account of the events was firmly rejected by the complainant’s mother.  She also rejected the suggestion that the complainant had admitted that she had taken the photographs.^[19]  The mother also rejected the proffered explanation for how it was that the complainant knew the PIN so she could open the appellant’s phone and take photographs.  That was that the complainant was in the habit of watching him put his PIN code into the phone, even though he changed it frequently, and that the complainant had told her mother what the PIN code was.^[20]
12. The appellant himself gave evidence that he discovered the photographs on his phone when his wife (in Canada) contacted him to enquire about them.^[21]  He said the photographs were of the complainant’s vagina while she was lying on the couch, and the complainant admitted that she took them.^[22]  He also gave his explanation about the complainant watching him put his code into the phone, then relaying that to her mother.^[23]
13. The appellant’s evidence was that the only photographs he took of the complainant were on occasions when she was practicing dance routines in the living room and trying to perform a “backflip off the couch”.^[24]
14. There was an obvious disparity between that evidence and what the appellant said in his email to the complainant’s mother, which was that he had taken photographs of the complainant “when she was on the couch in the lounge room. They were not of her boobs as she was wearing a light-green top”.  The jury may well have thought that the description in the email did not truly reflect the suggested activity that he admitted photographing, namely doing a backflip off the couch.
15. The matters referred to above were all part of the evidence which the jury were required to weigh in their deliberations as to whether they accepted the complainant as a credible and reliable witness.  In my view, it was open to the jury to conclude from that evidence that she was credible and reliable, at least as to that part of her evidence.  There was a consistency to the evidence that extended beyond that of the complainant alone.  The matters identified in the reasons of Philippides JA explain, in my view, how it was open to the jury to resolve other inconsistencies and variations in the evidence.
16. In my view, it was open for the jury to find the appellant guilty, as they did, and I am by no means persuaded that an innocent person has been convicted.
17. PHILIPPIDES JA:  After a three day trial, the appellant was convicted on 13 June 2016, on an 11 count indictment, of one count of maintaining an unlawful sexual relationship with a child (count 1).  He was also convicted of five counts of rape (counts 2, 5, 7, 10 and 11).  Those rape counts were based on four incidents of digital penetration and one of penetration with the appellant’s tongue.  The appellant was also convicted of four counts of indecent treatment of a child under 16 and under 12.  These comprised counts 3, 4 and 9 and also count 8, in respect of which the appellant was acquitted of a count of rape but convicted of a lesser charge of indecent treatment.  The Crown entered a nolle prosequi in respect of one count of indecent treatment (count 6).
18. The appellant appeals against his convictions on the ground that the verdicts were unreasonable, given that they depended upon the jury’s acceptance of the evidence of the complainant, which it was contended was significantly and materially inconsistent with the accounts of the witnesses who gave evidence of the preliminary complaint.

Background

19. The complainant, who was born in 2002, and her sister lived with the complainant’s mother.  The appellant was in a sexual relationship with the complainant’s mother (who lived in Cairns) while simultaneously maintaining a relationship with his wife (who lived largely in Canada).  The fact of his relationship with each was known to the other.  When the appellant was in Cairns he would spend a night, or occasionally two nights, each week with the complainant’s mother.  He also visited his wife periodically.  The appellant’s evidence was that the relationship with the complainant’s mother had largely ended by late 2013.
20. The complainant gave evidence of a number of incidents of a sexual nature which were said to have occurred between the second and third school term of 2013 and during the first or second term of 2014 as follows:

1. On an occasion, when they were in the swimming pool, the appellant asked the complainant to show him her vagina and touched it, penetrating it with his finger (count 2).
2. Later on that day, while the complainant was lying on a couch in the living room, the appellant asked her to remove her pants, which she did, and he took photos of her vagina with his phone.  In the process he touched her on the vagina (counts 3 and 4).
3. On another later occasion in the swimming pool, the appellant penetrated the complainant with his finger (count 5).
4. On an occasion, she followed the appellant into the garden shed where he told her to sit down and remove her pants.  She did this and he knelt down and licked her vagina, penetrating it with his tongue (count 7).
5. While count 7 was occurring, her mother called out and said she was going out and they moved to her sister’s bedroom where he again told her to remove her pants.  She did so and lay on the bed and he again penetrated her with his tongue (count 8).
6. The complainant said, “…mum was folding the clothes with [the appellant] and he was folding my clothes. And he then put my clothes in my room and said ‘look in your pile of clothes’ so I did and it was a dildo. Then I put it back and I gave it back to him, and I pretended I never touched it, like, never knew it was there and then I gave it back to him. And then that night – [when] Mum was asleep – he came into my room, knocked on my door. I opened the door and he had his dildo in his hand I just closed the door on him. He said he bought it for me, and I said I don’t want it, and then he just told me to keep it and I said ‘no’ and then I just gave it back to him and he put it back in mum’s room but I don’t know where” (count 9).
7. On two occasions the appellant asked the complainant to lie on the bed while he digitally penetrated her, on one occasion in her bedroom (count 10) and on another in her mother’s bedroom (count 11).

21. As to count 6 (on which the Crown entered a nolle prosequi) the complainant’s evidence was that she was in the garden with the appellant while he was watering plants.  He went behind the shed and asked her to lift her top up.  She did so and “he touched [her] boobs … He was just squeezing them”.  This did not accord with her evidence when asked at the pre-recording hearing about an incident that occurred behind the shed, which was that “Yes I think he showed me his dick... I think he showed me his penis. That’s what I remember from that”.

Evidence at trial

The prosecution evidence

22. The complainant’s evidence was that she was 11 years of age at the time of the offending.  She was 12 by the time she provided her three s 93A statements on 13 August 2014, 15 August 2014 and 3 September 2014.
23. Her evidence was that the first incident of abuse occurred when she was in the pool.  The appellant then touched and later took photos of her vagina when she was on the lounge.  The complainant thought those acts took place on the same day as the incident in the pool.  The complainant’s evidence was that she did not complain about the appellant’s conduct because her mother liked the appellant and she did not want to “wreck anything for her”.  She also gave evidence that her mother also reprimanded her (“got up her”) the day after the photographs were taken, after discovering the images on the appellant’s phone.  The complainant’s mother gave evidence confirming she reacted in this manner.
24. In the last of the complainant’s interviews, she described an incident where the appellant hid a yellow dildo in her clean clothes.  The dildo was still in its box, which was see‑through.  Later that same night, the complainant returned the dildo to the appellant, however, he again tried to give it back to her, although at that stage, the dildo was out of its box.  She again refused it.  On 18 September 2014, after executing a search warrant at the appellant’s premises, the police located a yellow dildo in a half ripped open brown sandwich bag.
25. The complainant told the police that she had spoken to five of her friends about aspects of the appellant’s offending.  With the exception of AW, she was unclear as to the extent of the detail she gave them.  The police interviews with those children took place on 23 August 2014 and 6 September 2014.
26. The complainant’s mother gave evidence that the appellant was a “father figure” to her daughter.  She described an occasion where the complainant and the appellant had been swimming in the pool.  Later that day, after dinner, she went to the shop leaving the complainant and the appellant alone in the lounge room.  The complainant was in the long lounge chair; when she returned, the pair were still in the lounge room.
27. The complainant’s mother gave evidence of checking the appellant’s phone later that night and finding photographs of her daughter lying on the couch with her vagina showing.  She deleted the images.  The next day, after reprimanding her daughter, she confronted the appellant.  The appellant admitted the offending saying, “Don’t blame her, it’s not her fault. She was just trying to please me because I was drunk”.
28. On 14 August 2014, the complainant’s mother participated in a short pretext call with the appellant, after the mutual introductions, the following conversations took place:

“[Mother]: ‘Hey, um, I’ll be in – I was going through [the complainant’s] iPad the other day and there was – she was – she told a couple of her friends about the, um, photos you took of her naked.’

[Appellant]: ‘What?’

[Mother]: ‘She told a couple of friends on her iPad that she, um, of the photos you took of her when she was naked, like of her breasts and all that.’”

29. Later that day, the following email exchange took place between the pair:

Sender – Mother

“… You no (sic) it’s over between us I think I knew that when you went to Canada the pattern is you go over for 3 months and [your wife] comes over fir (sic) 5 weeks. And about the photos well you know they were of her vagina and I deleted them cause I was angry and upset!”

Sender – Appellant

“… I have been trying to call you on Viber to speak to you re this NEW accusation, the only time that I took photos of [the complainant] was when she was on the couch in the lounge room, they were not of her boobs as she was wearing a light green top, if she is saying that I took photos of her boobs then she is lying. What’s been going on back there, has she been misbehaving, playing up and being really shitty towards you. I thought you and I discussed this when this happened the first time and now this! If this was supposed to have happened, ask her when and where??? I told you that that would never happen again and I meant every word of it ... Please believe me!”

Sender – Mother

“Hi

Was it just photos of the vagina then?”

Sender – Appellant

“Hi ... Just reflecting on our phone conversation, I never took photos of her boobs. If you recall those photos she had a green top on. Those photos of her laying on the couch were deleted a long time ago so where is this coming from? I have never taken photos of her boobs!!! NEVER!! I tried calling you a couple of times to clarify that.”

The appellant’s evidence

30. The appellant gave evidence.  In relation to the photographs of the complainant on his phone, he accepted there had been photos on his phone which depicted the complainant lying on the couch showing her vagina.  However, his evidence was that he only discovered the photos when his wife called him from Canada, asking him “what the f… is on your phone”.  He said he then looked for his phone, unlocked the pin and saw the photos of the complainant with her vagina showing.  He explained in evidence that photos on his phone were automatically uplifted by iCloud to his iPad which was in Canada with his wife.  His evidence was that he showed them to the complainant’s mother soon after who deleted them.  The complainant was yelled at by her mother and admitted taking the photos of herself.  He said that the complainant had obtained the access code to his phone and must have taken the photos herself.  On the appellant’s version, he was the one who drew the complainant’s mother’s attention to the existence of the photos (which was denied by the complainant’s mother) and the complainant had admitted to taking the photos (which was denied by both the complainant and her mother).
31. The appellant accepted that he had taken photos of the complainant, including of her at her dance group, doing dance routines and when she was on the couch, but alleged that they were when she was performing “back flips”.  The appellant also asserted that when he said in his email, “I told you that that would never happen again and I meant every word of it … Please believe me”, he was referring to the complainant stealing his phone.
32. As to the allegations concerning the vibrator, the appellant’s evidence was that he purchased it as a gift for the complainant’s mother.  He wrapped it and placed it in a bag containing gifts for the other family members.  After he had given a gift to the complainant’s older sister, the complainant grabbed the bag from him and ran into her room, slamming the door behind her.  He did not check that she had the vibrator and he did not think she would undo the wrapping because the gift was addressed to her mother.  The complainant then came out of her bedroom and thrust the vibrator into his stomach, breaking the plastic packaging.  He put the vibrator in his pocket, intending to rewrap the gift and repair the packaging, prior to giving it to the complainant’s mother.  He did not actually give it to her mother, because their relationship was falling apart and he forgot about it.

Relevant principles

33. The ground of appeal against conviction raised is to be regarded as a contention, pursuant to s 668E(1) of the Criminal Code (Qld), that the jury’s verdicts were “unreasonable, or cannot be supported having regard to the evidence”.^[25]  It is, therefore, necessary for this Court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  The relevant principles as stated by the High Court were summarised in R v RAU,^[26] in the following passages that have been adopted on subsequent occasions:^[27]

“In MFA v The Queen,^[28] McHugh, Gummow and Kirby JJ noted that a review of this kind:

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

In R v SCH,^[29] the relevant principles were summarised as follows:

‘In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.^[30] In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred.^[31] However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.^[32]

This Court must, therefore, undertake “an independent assessment of the evidence, both as to its sufficiency and its quality”^[33] in accordance with [these] principles …’”.

34. The long established approach referred to in M v The Queen^[34] and MFA v The Queen^[35] as to the primacy of the jury in criminal trials was recently reiterated in R v Baden‑Clay,^[36] where the High Court observed: ^[37]

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

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

Appellant’s submissions

Inconsistency in the evidence

35. It was submitted by the appellant that the change of the complainant’s evidence in relation to count 6 and the significant inconsistencies between what the complainant told the interviewer in her s 93A statements, and what she told the witnesses RD and AT, meant that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences.  At the appeal hearing, it was reiterated that essentially the appellant’s case was that the inconsistency between the complainant’s evidence and that of some of the preliminary complaint witnesses was such that a jury could not have been satisfied beyond reasonable doubt of his guilt.
36. Counsel for the appellant relied upon three alleged inconsistencies in the evidence:

• what the complainant said to the witnesses as to her age when the sexual misconduct was alleged to have begun;
• the complainant’s denial to the police that she engaged in fellatio with the appellant; and
• the complainant’s account about the appellant’s approach to her in her bedroom with the dildo.

37. The most significant of the inconsistencies was submitted to be the first one.  It was said that these inconsistencies were reinforced by the fact that a change in the complainant’s evidence led to the Crown entering a nolle prosequi in respect of count 6.
38. Of the five preliminary complaint witnesses that gave evidence, the appellant’s counsel submitted that one gave evidence which was of no consequence.  The remaining witnesses, although providing broad support for the complainant in that they gave evidence of the complainant having told them of sexual misconduct towards her by the appellant, gave evidence so significantly different from that of the complainant as to make it unreasonable for the jury to act upon her evidence, particularly when regard was had to the complainant’s evidence in respect of count 6.

Inconsistencies as to the complainant’s age at the time the offending occurred

39. The appellant submitted that the Crown case was based on the offending having occurred when the complainant was aged 11 and 12 and that was the effect of her statements to the police in her s 93A statements.  However, the complainant told some of the preliminary complaint witnesses that the offending started when she was seven, in one case, or seven or eight, in another case.  It was contended that, given the Crown’s case and the recency of the allegations relied on by the Crown, a shift of three to four years as to when the offending began was not an expected level of inconsistency in such a situation.
40. In her s 93A interview, RD said that the complainant told her that the appellant’s misconduct started when she was 11 years of age; however when speaking to the Crown prosecutor she told him that after the police interview, the complainant told her and TR that she was seven when this misconduct started.  In cross-examination, this exchange was as follows:

“Okay. Now, when you went to Mr Crane’s office yesterday you told Mr Crane this: that after the police interview when you and [the complainant] were talking about it, she said to you that she was seven when these things that she alleges against [the appellant] occurred; is that right?---We were at school and I think [TR] was there and we were trying to get the story straight.

Yep?---And we asked what age and she said seven. And then I said, but you said that you were 11. And then I don’t remember much after that.

Okay. So you contradicted her and said 11; is that right?---Yeah.

And you told Mr Crane that she replied, “Oh, yeah”; is that right?---I don’t remember - - -

Okay. Did you - - -?--- - - - what she said exactly.

No. Did you tell Mr Crane that, though – that - - -?---Yes.

- - - her response was, “Oh, yeah”?---Yep.

And, no doubt, when you spoke to Mr Crane, you were telling him the truth?---Yeah,

well, I don’t remember exactly what she said, but it was something like that, so - - -

It was something to that effect?---Yep, but I don’t remember exactly.”

41. In her s 93A interview, AT said that the complainant told her that the appellant’s misconduct towards her commenced when she was seven or eight.

Inconsistencies as to the fellatio claim

42. It was submitted that at no stage did the complainant ever allege that she engaged in fellatio with the appellant and that she “denied” it to the police officers.  In that regard, reliance is placed on her statement “not that I know of” when asked about engaging in fellatio, which it was accepted was not in fact a “clear denial”.
43. The appellant was out of Australia between 4 June and 4 September 2014.  He had no contact with the complainant after his return.  It was submitted that there was no opportunity for the appellant to have engaged in any misconduct with the complainant because he was overseas.  The appellant also emphasised the inconsistency between what the complainant told the police and what the complainant later said.
44. In that regard, RD spoke of the fellatio claim as follows:

“And, I guess, can you explain what that game is?---It’s a game where you say never have I ever done something and whoever has done it puts their hand up.

Okay. Now, was there a particular question that you can remember from a member of that circle?--- [O] was joking around and said never have I ever given a blow job - - -

Yes?--- - - - and [the complainant], yeah, started, like, making weird noises and then we asked her what was wrong and then she said [the appellant’s first name] and then just sat back, so then we didn’t talk about it after that because we weren’t allowed to.

Okay. And apart from those further two conversations that you just told me about, was everything that you said in that interview the truth?---She – with the people that she told about she also told [AW] and [TR].”

45. At the trial pre-recording of her evidence, the preliminary complaint witness, AT, gave evidence of the incident at O's party.  In evidence in chief, she said:

“Okay. Now, did you also want to add that you were at a party at the home of [O's] house?---Yeah.

And you and a group of friends were sitting around in a circle; is that right?---Yep.

And there was a game being played called Never Have I Ever?---Yes.

And do you recall that there was a particular question that you can remember?---Yep.

And what was that question?---Never have I ever given someone a blow job.

Okay. And do you recall after that question [the complainant] saying to you words to the effect of “[the appellant] made me do it”?---Yep.”

46. Neither RD nor AT stated anything about this party in their s 93A interviews.  The complainant placed this incident as having occurred on the last school day in 2014.

Inconsistencies as to the incident involving the dildo

47. The appellant submitted that a very different version of the dildo incident from that of the complainant was given by the witness AT who also gave evidence she was told by the complainant that photographs were taken of her in the pool by the appellant:

“... and she told me about her – ah, I think her step-dad … um, how he had done stuff to her when she was like I think around seven, seven or eight, um, like how he forced her to touch his parts, and like he touched her parts, and they were in the pool I think. And, um, like she would just go on about it, and at first I didn’t think it was real because, like, we’d never experienced stuff like that, and then like she kept telling us more stuff, like apparently – she said – she said in term 2 he came back with like a dildo or something and took photos of her with it, and he took photos of her when they were in the pool, and that’s like pretty much all she said. Like, she didn’t go into full on details about what happened.”

48. Reference was made to the evidence of the witness RD who said that the complainant told her that the appellant had come into her room with a yellow dildo and a camera and that she had locked him out.  It was submitted that was “inconsistent with the complainant’s version, which had no reference to a camera or anything of that sort”.

Discussion

49. The respondent submitted that the complainant’s account appeared frank and unembellished.  The complainant did not portray the appellant as needing to use physical force, accepting that she was the one who often pulled her pants down at the appellant’s request.  Similarly, at the pre-recording, she willingly admitted her behavioural issues and also frankly agreed that she had witnessed the appellant and her mother having sex when they thought she was asleep.  It was not remarkable that the complainant’s account contained uncertainty as to precise dates and times, as her account was otherwise detailed and plausible.  The respondent contended that the complainant’s account was largely internally consistent, with the only significant inconsistency relating to count 6.
50. As to count 6, there was an inconsistency between the complainant’s s 93A interview and her pre-recorded evidence, which resulted in the nolle prosequi being entered.  However, it may be accepted that the count concerned one of the less serious allegations.  The complainant, at the outset in her interview with the police, had shown a degree of uncertainty over the incident and the complainant’s pre‑recorded evidence some 14 months later (on 5 November 2015) also reflected a vagueness as to the incident (“Yeah, I think he showed me his dick”).  Nevertheless, as the respondent submitted, in the context of the complainant being subjected to repeated acts of sexual abuse, it was unsurprising that she was clearer on some incidents than others.  I do not consider that the inconsistency resulted in the complainant’s credibility being irretrievably damaged.
51. In respect of the inconsistencies between the complainant’s evidence and that of the preliminary complaint witnesses as to her age when the offending occurred, the respondent submitted that there was limited evidence of her friends seeking to clarify any of the details with the complainant to ensure an accurate understanding.  Further, there was much scope for misinterpretation; the numbers “seven” and “eleven”, for example, sound similar.  The offending was still occurring after some of the conversations, so changes in her descriptions were apt to occur.  The preliminary complaint witnesses’ evidence at the pre‑recording was also much later still, being on 2 October 2015 and 5 November 2015.
52. The preliminary complaint witnesses were all about the same age as the complainant and, in many instances, were attempting to recall conversations that had taken place quite some time previously.  As the respondent submitted, a level of inconsistency was to be expected in those circumstances and the jury were well placed to make assessments as to the significance of inconsistencies.  It was open for the jury to conclude that the general tenor of the evidence of each of the witnesses enhanced the complainant’s credit.^[38]
53. As to the inconsistencies in the evidence concerning the fellatio claim, the respondent submitted that the complainant’s denial of having performed oral sex upon the appellant in the police interview was far from emphatic.  Throughout the interviews, she had shown a reticence to divulge all of the details of the appellant’s offending. She explained her reluctance on the basis of being upset, as well as being concerned for her mother.
54. It was for the jury to assess whether a failure to tell the police about performing fellatio on the appellant ought to be understood in the context of such reticence.  In particular, why the complainant did not speak of the matter prior to the game with her friends and how that impacted her credibility were well within the purview of the jury.  The jury may well have considered that a young girl would have a considerable reluctance to discuss performing fellatio, which required a positive level of participation on her part as well.  It was for the jury to assess the evidence of the complainant’s spontaneous and emotional disclosure during the game and whether it bore the hallmarks of being genuine, and whether that scenario explained why no one might have heard of the allegation before that time.
55. The preliminary complaint evidence about the “Never Have I Ever?” game and the circumstances surrounding the conversation were not explored in much detail, nor was the complainant asked about the incident during her evidence at the pre-recording.  There is merit in the respondent’s contention that there were tactical advantages in such a course.  Indeed in oral submissions, counsel for the appellant accepted as much.
56. While the detail given by each of the preliminary complaint witnesses differed, this was not bound to have a detrimental impact upon the complainant’s credibility.  As to the appellant’s submission that the evidence of AW was of no consequence, the jury might well have found his evidence compelling.  AW gave an account in very similar terms to what the complainant recalled of the conversation.  The jury may also have taken the view that the complainant was obviously embarrassed when discussing the topic with him on Skype.  Further, there was evidence that when AT called the complainant back, she was upset and crying.
57. As the respondent submitted, the trial judge, in his directions to the jury, referred them to inconsistencies between the complainant’s account and that of her friends.  His Honour also warned the jury that it would be dangerous to convict on the evidence of the complainant alone, unless, having scrutinised her evidence with great care, they were satisfied beyond reasonable doubt of its truth and accuracy.  The trial judge further directed the jury that the warning was warranted for several reasons, including the existence of internal inconsistencies in the complainant’s version and inconsistencies in her accounts to others.
58. There is no reason to doubt that the jury paid careful regard to those directions.  That is so, particularly given, as the respondent argued, that the jury subsequently in the course of their deliberations asked to have access to the evidence of the complainant in its entirety.  Further, after the evidence was played, the trial judge reiterated the inconsistencies between the complainant’s evidence and that of her friends.  Bearing in mind the directions given by the trial judge, the jury would have been well aware of the importance of the inconsistencies in assessing the credibility and reliability of the complainant.
59. On the appellant’s account, the complainant had significant behavioural problems and had previously taken photographs of her own vagina on the appellant’s phone.  It was for the jury to consider the plausibility of the appellant’s account that he allowed the complainant access to the package containing the dildo and that he would not alert the child’s mother to what had just taken place, bearing in mind the evidence that the complainant’s mother never received the item.
60. The jury may have formed the view that the email exchange revealed that the appellant admitted taking photos of the complainant on the lounge in circumstances where he had promised the complainant’s mother that it would never happen again.  When directly asked about taking photos of the complainant’s vagina, he did not deny that such photos had been taken but simply denied the photos also included her breasts.  It was thus open for the jury to conclude that the email exchanges, in the context of a recent pretext call, constituted a powerful admission.

Order

61. On review of all of the evidence before the jury, it was well open for them to be satisfied beyond reasonable doubt as to the appellant’s guilt, notwithstanding the inconsistencies in the evidence.  Accordingly, I would dismiss the appeal.