Exit Distraction Free Reading Mode
- Unreported Judgment
- Appeal Determined (QCA)
R v BDH QCA 47
SUPREME COURT OF QUEENSLAND
R v BDH  QCA 47
CA No 9 of 2018
DC No 460 of 2017
Court of Appeal
Appeal against Conviction
District Court at Townsville – Date of Conviction: 13 December 2017 (Lynham DCJ)
22 March 2019
12 November 2018
Fraser and Morrison JJA and Mullins J
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where the appellant contended on appeal that his barrister was incompetent – where he felt that his barrister would not let him give evidence – where he contended his barrister failed to bring particular evidence before the jury – whether the appellant’s barrister did not represent him in the way that he wished
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contended that the complainant’s cross-examination by defence counsel gave rise to a miscarriage of justice – where the fact that the plaintiff lied from time to time was established at trial – where it was submitted by the appellant that the cross-examination effectively promoted the complainant as a witness of credit and resulted in an unfair trial for the appellant – where defence counsel did not suggest there was a possibility of collusion with the complainant’s friend who had made a similar complaint – whether the conduct of the trial by the appellant’s barrister was incompetent and in particular the cross-examination of the complainant gave rise to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where all counts concerned the nearly nine year old daughter of the appellant’s de facto partner – where the complainant admitted to lying – where there were many contradictions in her accounts – where there was no DNA evidence in support of the allegations – where her account was contradicted by her mother – whether the convictions are unsafe and unsatisfactory having regard to the whole of the evidence
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
R v DBB  1 Qd R 188;  QCA 96, cited
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124;  HCA 46, cited
S Hamlyn-Harris for the appellant
The appellant also appeared on his own behalf
C N Marco for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
- MORRISON JA: In December 2017 the appellant was tried before a jury on six counts, all concerning the nearly nine year old daughter of the appellant’s de facto. Four of the counts were of indecent treatment of a child under 16 and under 12.Two of the counts were of rape.Each offence was particularised as a domestic violence offence.
- On 13 December 2017 the appellant was convicted of all six offences. He appeals against his convictions on three grounds:
- (a)Ground 1 – the appellant’s barrister did not represent him in the way that he wished, and did not “show evidence proving the allegations were false”;
- (b)Ground 2 – the conduct of the trial by the appellant’s barrister was incompetent, and in particular the cross-examination of the complainant gave rise to a miscarriage of justice; and
- (c)Ground 3 – the convictions are unsafe and unsatisfactory having regard to the whole of the evidence.
Particulars of the charges
- Counts 1-3 were alleged to have occurred on Monday, 5 September 2016, and counts 4-6 were alleged to have occurred on the next Thursday, 8 September 2016. Particulars of the counts were given:
- (a)count 1 (indecent treatment): the appellant used his hand or hands to touch the complainant’s bottom, skin on skin;
- (b)count 2 (indecent treatment): the defendant used his hand or hands to touch the complainant’s vagina, skin on skin;
- (c)count 3 (rape): the appellant inserted his finger or fingers into the vulva or vagina of the complainant;
- (d)count 4 (indecent treatment): the appellant used his hand or hands to touch the complainant’s bottom, skin on skin;
- (e)count 5 (indecent treatment): the appellant used his hand or hands to touch the complainant’s vagina, skin on skin; and
- (f)count 6 (rape): the defendant inserted his finger or fingers into the vulva or vagina of the complainant.
- At the time of the offences the appellant was 37 years old. The complainant was the daughter of his girlfriend. That relationship had been on and off for about 18 months. The complainant was one month short of nine years old at the time.
- The girlfriend’s house had a shed in which some of the appellant’s possessions had been stored. Notwithstanding the relationship, the appellant did not fulfil the role of step-father in relation to the complainant; discipline was left to the complainant’s mother and the appellant was known to the complainant simply by his Christian name.
The evidence at trial
- The grounds of appeal necessitate that this Court must examine the whole of the evidence. In what follows the evidence will be dealt with sequentially, and the cross-examination of the complainant will receive particular attention when ground 2 is considered.
Evidence of the complainant
- The complainant was interviewed twice, the first on 8 September 2016 and second on 25 October 2017. At the first interview the complainant was nearly nine and at the second she was just on 10 years old.
First s 93A interview
“… a couple of hours I was sitting on him he stuck his hand in my nickers and started touching my vagina … And morning she [sic] done it and I said have forgotten something. And he said what? … Cause he had forgot cause I’m pretty sure mum told him … not to touch my rude part … Cause he does forget stuff … He kept on doing it”.
- Shortly after that she responded to a question asking her to tell everything that happened on the Monday:
“On Monday I went to the shed and I sat on him and then a couple of hours later he stuck his finger in my rude part and I tell him to stop and then he want, and then he want to look at my vagina to see if there is hair on it and then he wants to look on my butt.”
- The complainant said that the events occurred at around 6.00 am, and she was wearing her pyjamas at the time. She described the pyjamas in the interview. She also described features of the shed. She said the appellant was sitting in his chair and having a cigarette. She gave a further description of the events in these terms:
“… [H]e made me like turn me around and laid me back and pulled down my pants and had a look at my butt. … [T]hen he pulled down my pants … And then he started looking at my butt. … He told me he was having a dream … And then he started laughing … And then I looked at the time … And I said [the appellant’s name] its seven before … and he said okay … and I’m sure you get ready for school.
[describing what happened when the appellant looked at her bottom] [S]o he was opening it up and seeing if the hairs grown in it yet … [the appellant said] That you’ve got a couple of hairs and that I was trying to said [sic] it don’t touch it cause my vagina cause it tickles … Cause your hands are cold … [H]e was looking at my vagina too and seeing if there was hair on it too and he said I think he said that there’s only three there … And then, he looked at my arm pits to see if there was hair under it … And there’s only white hairs under it.”
- The complainant said that she pulled her pants up, left the shed and went to get ready for school “cause I didn’t want him to touch my rude part anymore”.
- The complainant said she did not mention what happened on the Monday because she thought the appellant would get angry with her, and said that he sometimes yelled at her mother so she thought he would yell at her.She explained why she thought he might be angry, describing that he “put his eye brows down like he was getting angry”.
- The complainant was then asked about the events of the following Thursday, 8 September 2016, which was the day of that interview. She said she walked into the shed and was sitting on the appellant’s chair when he walked in and sat down and she sat on him. She then described what occurred:
“And then one minute there was one minute and he was looking at my rude parts … And then this morning I said have you forgotten sometime and he said what … And I was scared to tell him that … you’re not meant to be touching my rude parts so I said you forgot to put your jocks on … [H]e had his cold hand there and then touching me on my rude parts … And then he said turn around and I’ll have a look at your butt … [the appellant was] playing with his hand … And he got it and he stuck it there and then touching my rude part … And then he said turn around … so he made me turn around … pulled my pants down and then he lift my butt up and he was having a look if I had any hairs … [the appellant touched her] on my butt and my vagina that time … [with] … his hand … Open up my bum hole to see if there is hair in it … He gotten his hand … Open my bum chicks … Having a look if their [sic] hair in it.”
- The complainant also described the appellant touching her vagina:
“[H]e stuck his penis a little up the vagina hole where my (not clear) comes out of.”
- Even though the transcript records her using the word “penis” at that point shortly thereafter it became apparent that she had said or meant to say “finger”. She was asked how did she know that the appellant had stuck her finger in the hole and she answered:
“Cause I felt it go up there … And it felt all weird … Like running stuff … Like its just like runnie, runnie means like all slippery.”
- She was asked to describe what happened when the appellant was looking at her bottom and she said that the appellant “turned me around and sat me properly and then started looking at my vagina … Like sticking his hand in it … Like just putting his hand um down there … On it.”
- The complainant said she went inside to get ready for school, and then the appellant came in and started fighting with her mother. The complainant went to her mother and told her she needed to tell her something private, and they went into the complainant’s room where she told her that the appellant had been “touching my rude part”.The complainant said that she heard her mother (she thought) talk to the appellant and asking whether he had touched the complainant’s rude parts. She said that she continued:
“And he said I think he said yes.”
- The complainant said she did not have a good memory of the conversation she had with her mother on Wednesday night, before the events on 8 September, about the appellant touching her. She said she was in her sister’s room and told her mother that the appellant was touching her rude part, and it was annoying and she didn’t like it.
- The complainant described that the events occurred before school and she remembered seeing the time 7.04 am on a green clock in the shed.The complainant described what she was wearing in some detail.
- Later in the same interview the complainant was asked again about the events on Monday, 5 September. She said she went out to the shed to see the dogs and then described the way in which each of the appellant and herself were sitting, and how he lifted her around so that he could inspect her bottom. Once again she said that the appellant was “putting his hand on my rude part touching my vagina … sticking it down my nickers … pushed them down and he started touching my vagina”.She described the touching being under her underwear, skin on skin. The appellant looked at her bottom before he looked at her vagina.
- She was asked to go over the events of that morning, and did so describing what she was wearing and where they were each sitting. Then she turned to the actual events.
- When asked to describe the actual events of that morning the complainant again described the appellant spreading the cheeks of her bottom, and for that purpose lifting her bottom up with his hands. She told him to stop looking at her butt “and then he said okay”.She again described how the appellant put his hands down inside her underwear and that he was touching her vagina.When describing what he did with his hand she said: “[I]t was touching my vagina … And then stuck it up the hole where my pee comes out of …”When asked what he used to insert, she said it was his finger. She also said that it was her moving around that made him stop. After that she went inside and got ready for school.
- The complainant was emphatic that they were the only two occasions upon which the appellant had touched her, and that the appellant had not asked her to do anything in relation to his body.
- The second interview occurred the day before the complainant gave pre-recorded evidence, and was for the purpose of asking clarifying questions. The complainant first dealt with the events on the Monday, 5 September 2016. She said that when the appellant looked at her bottom he did not touch it, but he did touch her vagina. When asked where on the vagina she was touched she said “in the middle”, then clarified that as being “inside” with his finger.The complainant said the appellant used his finger to rub on her vagina for a period of time she estimated at 10 minutes. She was asked to describe how far in her vagina the finger went and she said “very far”,describing that as “not very nice”.
Complainant’s pre-recorded evidence
- In her pre-recorded evidence the complainant affirmed the truth of what she had told to police in the two interviews. She was asked to identify various photographs of the clothing she was wearing, the shed and its contents and the clock to which she had referred.
- In cross-examination the complainant was asked whether she understood the importance of telling the truth, which she answered affirmatively, and whether she ever told lies to her mother. The complainant said she understood the importance of telling the truth, but confessed to telling some silly lies, not big lies, when she was being naughty.The complainant was then asked whether she recalled an argument between her mother and the appellant at about 5.30 pm on Wednesday, 7 September, the day before the second set of offences. The complainant agreed that she could recall it, but said she didn’t overhear the words. She then agreed that after the argument her mother came and asked if anybody had touched her, and that she had told her mother that someone had, not lying about it.She told her mother that the appellant had been touching her, and the mother explained that no-one was to touch her in her private parts. The complainant then agreed that her mother had asked her again whether the appellant had touched her, and she told her mother that the appellant had done so.
- The complainant disagreed with the proposition that on that Wednesday evening she told her mother than no-one had touched her.
- The cross-examiner then asked the complainant again, saying that he did not want the complainant to be confused, as to whether the complainant had told her mother the truth when she said that she had been touched by the appellant. The appellant said she had told her mother the truth when she said yes. The complainant agreed that she had told her mother the truth when she said that she had been touched by the appellant.
- The complainant confirmed that in her police interviews she had said that the appellant touched her on the Monday and the Thursday. She was then asked if she agreed that she had said the appellant did things to her on the Monday and then a couple of hours later some other things. She was then asked whether it was correct that when she said the appellant had done things to her on the Monday, he “did some things and then a couple of hours later, did some other things”. The complainant agreed, saying that the first things were done in the shed and the things a couple of hours later were in the house, but she couldn’t remember where in the house.
- The complainant was asked if she could recall that her sister and she had been playing on the trampoline, and on that occasion the complainant had pulled her sister’s underpants to one side. The complainant agreed. The complainant said she did so because her sister was annoying her, and when she pulled her pants to one side she exposed her sister’s rude bits.
- The complainant agreed that she had asked the appellant questions about “girl things”, such as when she was going to get breasts. Sometimes, she said, the appellant would answer her questions but on other occasions he would tell her to speak to her mother.
- The complainant said she could remember asking the appellant about getting hairs on her private parts, and the appellant saying that she should speak to her mother.She agreed that she would often give the appellant a hug, and sometimes sit on his lap. She confirmed that the Monday and the Thursday were the only times that the appellant had touched her. She was then asked about her description that after the appellant had his finger inside her vagina, it felt like bleeding. She was asked if she had checked her underwear later to see if there was any blood, and she said she did not.She confirmed that she did not feel any pain as a consequence of the finger being inside her vagina.
- The cross-examiner took her again to her evidence of the argument between her mother and the appellant on the Wednesday, and she again said that she did not overhear the argument. She confirmed that her memory was that the appellant admitted to her mother that he had touched the complainant, and denied the suggestion that she (the complainant) did not tell her mother that the appellant had touched her.The complainant then rejected the suggestions that the appellant had never touched her on her private part, nor put his finger in her vagina.
- The cross-examination ended with a question which asked her to confirm that she did say the appellant did those things to her, but she then agreed that she could not help as to what it was she said the appellant did a couple of hours later in the house on the Monday.
- A doctor who did an examination on the complainant on 9 September 2016 gave evidence. The examination was done externally without any instrumentation inserted into the complainant’s vagina. The doctor did not see any bruising or abrasions, nor bleeding or excoriation. He said that you would not necessarily expect to see any injury to the vagina from insertion of a finger and considered, given what he had been told, that it was more likely there would be no injury.In cross-examination the doctor accepted that where a child is concerned, the finger of an adult male could cause some friction. However, the absence of injury did not prove anything.
Evidence from a DNA expert
- A DNA expert was called to give evidence concerning some fingernail scrapings from the appellant. The expert had DNA derived from the complainant. Testing the fingernail scrapings resulted in her being able to exclude the complainant’s DNA from the samples. However, the experts said that did not mean that the two had not come into contact. Removal of DNA could simply be lost from the surface of an item, or washed away when washing hands or having a shower.
Evidence of the complainant’s mother
- The complainant’s mother gave evidence of her relationship with the appellant. It commenced in January 2015 and had lasted about 18 months at the time of these offences. It ended when the mother found out that he had sexually assaulted the complainant.
- She also described the apparent relationship between the appellant and her daughters. She said the appellant favoured the complainant over the other daughter. She described he paid more attention to her and she would sit on his lap. He spent more time with her, such as on the trampoline or watching TV, than he did with the other child. Her observations were that:
“He just seemed to show her a lot of affection. Like, she was always on his lap, and he was always cuddling her and stuff.”
- The mother gave evidence that on Wednesday, 7 September 2016, the complainant “piped up and said that [the appellant] told her she had hair on her rude part”.She immediately asked how the appellant would know that she had hair down there, and the complainant “just laughed at me”. She said she then went out to the kitchen and asked the appellant how he knew that the complainant had hair down there and “I’m pretty sure he just said that you could just see it”.
- The complainant’s mother explained that she told the complainant that “nobody should … touch her or go near her down there”.
- The mother said that on Thursday morning, at about 7.30 am, the complainant asked to speak to her in private, and said that the appellant had touched her. When she asked what the complainant meant by being touched, the complainant said that the appellant had put “his hand down her pants and touched the little knobby bit down there, in her rude part”. The complainant said she had been sitting on the appellant’s lap in the shed talking to him and that’s when it happened.
- In cross-examination the mother agreed she had contacted one of her friends to accompany her to the police station, because that friend had had a similar experience with one of her daughters.
- She said she had some concerns as a mother when she noticed that the complainant and the appellant were getting along very well, and those concerns were raised with the appellant. She told the appellant as well as the complainant that she did not think it was appropriate, and told the complainant not to sit on the appellant’s lap anymore. However, the complainant continued, even though the mother told her “many times” to stop doing it.
- The mother gave evidence that the appellant worked on trawlers, for weeks to months at a time, and had calloused hands.
- The mother could recall occasions when the complainant did things to her sister, such as pulling her nickers down and showing her bottom to her sister. The mother had told her it was inappropriate.
- The mother said she was angry when the complainant told her that the appellant had said she had hair on her vagina. She said the comment struck her as something wrong because “I couldn’t see anything down there”.She agreed that the complainant often asked her whether she was getting any hair under her arms. She said the complainant was aware that her body was going to change at some time. When the conversation happened on 7 September she asked the complainant if the appellant had ever touched her. The complainant answered “no”. Firstly, if anyone had ever touched her, and secondly whether the appellant had touched her. The complainant said no to each of those questions.
- She said at that point she was satisfied with the answers she got. When she confronted the appellant she did not accuse him of touching the complainant nor did he say that he had been touching the complainant.
- The police officers who conducted the interviews with the complainant were called to give evidence. A police officer who interviewed the appellant was called and the record of interview was tendered as exhibit 7. Under cross-examination he agreed that when he was talking to the appellant about the Monday incident, he did not ask about digital penetration.
- The police officer who conducted the interview with the complainant was also called to give evidence. The officer was asked whether part of their training included ensuring that they did not put pressure on children by the form of the questions they were asking, which the witness agreed.
Ground 1 - discussion
- In support of ground 1 the appellant relied upon an affidavit by him setting out why he contended that his barrister at the trial did not represent him in the way he wanted.
- Nothing was added by way of oral submissions, or written submissions in support of this ground.
- In the affidavit the appellant made the following points:
- (a)he thought that the barrister was incompetent during the pre-recorded evidence, because he did not ask the complainant questions which the appellant wanted him to; further, he felt that by the questions he did ask the prosecution was being assisted;
- (b)he felt that his barrister would not let him give evidence; he signed written instructions that he did not wish to give or call evidence, and that was after advice that he should not do so; the barrister told him that he should trust the barrister and not give or call evidence because that would preserve the right to address the jury last;
- (c)the appellant said he did not get a chance to show his hands to the jury because the barrister did not want him to give evidence; the roughness of his hands, in the appellant’s view, would have caused an abrasion on the complainant; the barrister did not ask the medical examiner to explain the lack of injury given that his hands were rough and calloused;
- (d)whilst his barrister made the point that the daughter of a friend of the complainant’s mother had recently made a similar complaint, he felt that the complainant’s version was a carbon copy of the complaint made to the mother’s friend and “I wanted the jury told of that but [the barrister] did not argue the point strongly”;
- (e)the fact that the complainant used to lie all the time was not brought out at the trial; as for the offending which, according to the complainant, occurred in the house, that would have been physically impossible without the complainant’s mother seeing; the barrister did not highlight inconsistencies in the complainant’s account.
- The appellant gave evidence before this Court. In cross-examination he agreed that it was his choice in the end not to give evidence and he followed the advice of the barrister and solicitor in that respect. He said he was told that the barrister had about 20 years’ experience and therefore should listen to him. The appellant said that he understood he could have ignored what he had been told and chosen to give evidence but responded:
“Yes, but no disrespect to anybody I just wanted to get it over and done with. That’s sort of why I went with [the barrister] … He was pretty adamant that I should be acquitted of these charges and that’s why I went with him.”
- The appellant agreed that it was his own free choice not to give evidence and that he just wanted to get the trial over and done with.
- Any issues concerning the alleged incompetence of the appellant’s barrister will be dealt with in the course of discussion of ground 2. The remaining complaints by the appellant under this ground can be dealt with in fairly short terms.
- The complaint that he was not allowed to give evidence should be rejected. The appellant’s evidence was that he was given advice by both the barrister and the solicitor that he should not give evidence, and a forensic advantage was identified to him, namely that it would preserve the right of last reply. The appellant’s oral evidence before this Court was that he followed that advice and made his own free choice in deciding not to give evidence. That disposes of any suggestion that a miscarriage of justice might have occurred.
- The appellant’s complaint that the roughness of his hands and the chance of abrasion were not raised, should also be rejected. To go beyond putting that suggestion to the medical examiner would have required the appellant to go in to evidence, upon which he had decided not to embark. Putting the question to the medical examiner therefore had two difficulties to confront. The first was that the medical examiner would have to assume rough and calloused hands, when there was no evidence of that. Secondly, the medical examiner’s evidence was that the absence of abrasion was not determinative of whether there had been an assault or not. Therefore, unless the appellant went into evidence about the state of his hands there was no prospect that those questions would lead to any advantage. Therefore nothing was lost by them not being asked.
- The appellant’s contention that there was some similarity between the complaint made by the friend’s daughter and that of the complainant faces considerable hurdles. First, some detail of the other complaint would have to be adduced so that the comparison could be made. Secondly, the comparison would only serve any point if it was so close that a credible allegation of collusion might be made. There is nothing in the case to suggest that. There is no evidence whatever to suggest that the two girls were friends, or otherwise had the opportunity to collude. Thirdly, absent a credible basis to suggest that the similarity impacted upon the complainant’s credibility, there was no point to raising the matter, as it was irrelevant.
- The remaining complaints by the appellant concern matters going to the credibility and reliability of the complainant’s evidence. First, that the plaintiff lied from time to time was established at the trial, albeit in relation to what might be called “white lies”. Insofar as the lies were established, it seems that defence counsel was trying to take advantage of the fact that there was a difference between “white lies” and lies on important matters, and that when she told her mother that she had not been touched, the complainant was being truthful on an important matter. Secondly, absent the appellant giving evidence, the only avenue for evidence about the complainant being a habitual liar, was her mother. One could be confident the mother would not label her daughter as a habitual liar.
- As for the contention that some offending occurred in the house, and it would have been impossible without the mother seeing it, it seems that the appellant’s counsel at trial preferred to take the course of using that change in her evidence to attack credibility and reliability. It cannot be demonstrated that to take that approach was forensically indefensible. After all, defence counsel was in the position of being able to impress upon the jury that the oral evidence by the complainant was the first time this extra aspect had been raised.
- The remaining complaint by the appellant is misplaced. The inconsistencies in the evidence were a feature in the address and the summing-up.
- Ground 1 lacks merit.
Ground 2 – the cross-examination
- The central contention advanced on behalf of the appellant was that the complainant’s cross-examination by defence counsel gave rise to a miscarriage of justice. In this respect the submission was that the cross-examination needed to be considered in its entirety, but two specific parts of the cross-examination particularly gave rise to a miscarriage of justice.
- The central passage of the complainant’s cross-examination upon which reliance was placed for this ground was:
“And you understand the importance of telling the truth?---Yes.
And I take it, [name of complainant], that when your mum asks you things you tell the truth to your mum?---Yes.
Because it’s important not to lie to your mum. Is that right?---Yeah.
And do you ever tell lies to your mum?---Sometimes when I’m being naughty.
Okay. And I take it that it’s over some silly things like maybe if someone ate something out of the fridge and things like that. Is that the type of lies you might tell your mum?---Yeah.
And I take it you wouldn’t tell big lies - - -?---No.
Or make up things and tell your mum about those. Do you know what I mean by making up stories and telling your mum about something that didn’t happen?---Yeah.
So you wouldn’t tell your mum – you wouldn’t make up lies like that, would you?---No.
Now … I’m going to ask you to – just to use your own memory. Okay? So - - -?---Yeah.
And you may not remember the dates or the days, but if I suggested – if I said that you initially spoke to the police on the Thursday. Okay? On the 8th of September. Do you remember speaking to the police in - - -?---Yeah.
- - - Townsville on the 8th of September 2016, yes?---Yes.
And so I just want to go back to the day before. So the Wednesday. Okay? So before you spoke to the police do you remember your mum having an argument with [the appellant] at around 5.30 in the afternoon? So before dinner?---Yeah.
And [the appellant] was cooking dinner. Do you remember [the appellant] cooking dinner on the Wednesday evening?---Yes.
And did you overhear the argument between your mum and [the appellant]?---No.
No, okay. Did your mum come and – after they had an argument did your mum come and ask you whether anyone had ever touched you?---Yes.
And I take it you didn’t lie to your mum?---No.
And you told mum that someone had touched you?---Yes.
And did your mum – so I’ll just get this right so I’m not mistaken. Okay? So you remember your mum asking has anyone ever touched you?---Yep.
And what do you say you said to your mum?---That [the appellant] was touching me.
Okay. So you told your mum that [the appellant] had been touching you?---Yep.
Did your mum go on to explain that no boy or man is to touch you in your private parts?---Yep.
And that it was wrong and no one’s allowed to do that?---Yeah.
And did you remember your mum saying, “Do you understand what I’m saying”?---Yeah.
And your mum asked you again whether [the appellant] had touched you?---Yep.
And I take it again you didn’t lie to your mum. You said [the appellant] had touched you?---Yep.
Well, [the complainant], what I want to suggest to you – and this is what – just make sure you understand – when your mum asked you on that Wednesday evening whether anyone had touched you, you told your mum no one had ever touched you. You disagree with that?---Yeah.
Yeah. Okay. And when your mum asked you whether [the appellant] had ever touched you, you, again, said, “No.” You disagree with that. Is that right?---No.
I don’t want you to be confused because I know – I appreciate you’re only nine years of age. What you say – you tell me if this is right – when mum asked you whether [the appellant] touched you, you told your mum the truth and you said, “Yes.” Is that correct?--- [indistinct]
Because you wouldn’t lie to your mum about something so important like that, would you?---No.”
- The second passage relied upon was as follows:
“… so if I go back to Wednesday did you overhear your mum and [the appellant] arguing? And I think you said to me before you didn’t overhear them arguing?---No.
Yes, just – when you spoke to the police in September last year you seem to say that you heard [the appellant] and mum talking and your mum asking [the appellant] whether he’d ever touched you. Do you remember telling the police - - -?---Yeah.
Overhearing that conversation?---Yes.
And was that on the Wednesday night that that conversation took place?---Yes.
So just – you correct me if I’m wrong. Your memory is that [the appellant] on the Wednesday evening had admitted to your mum that he’d touched you?---Yes.
Yes, and on the Thursday that’s what you tell your mum, isn’t it? That [the appellant] had touched you?---Yeah.
Yes, what I’m going to suggest to you is on the Wednesday you didn’t tell your mum that [the appellant] had touched you?---No.
You don’t agree with that? You disagree? You say, “No, you’re wrong. I did tell my mum on Wednesday”. Yes, and you told your mum again on Thursday?---Yeah.”
- It was submitted that the defence counsel at trial apparently sought to create a reasonable doubt in the minds of the jury by demonstrating that the complainant’s evidence was contradicted by that of her mother in two respects. The first was the complainant said that she told her mother on the Wednesday night that the appellant had touched her, whereas the mother’s evidence was that the complainant denied that, and first told her on Thursday morning. Secondly, the complainant’s evidence was that, at least according to her memory, on the Wednesday night the appellant admitted that he had touched her when speaking to the mother, whereas the mother’s evidence was that he made no such admission.
- If defence counsel’s strategy was to get the complainant to agree she would not lie about something serious, and then use parts of the mother’s evidence to suggest that the complainant must be untruthful, that strategy was deeply flawed because, more than a year after the alleged offences, the complainant could have made an honest mistake about when she told her mother that the appellant had touched her. Alternatively, the mother could have been untruthful, or mistaken, about whether the complainant told her on the Wednesday night.
- It was submitted that contrary to what the trial defence counsel must have intended, the cross-examination effectively promoted the complainant as a witness of credit and that resulted in an unfair trial for the appellant. In this regard reliance was placed on R v DBB.It was further submitted that the unfairness was aggravated by defence counsel failing to apply to exclude equivocal evidence from the complainant that the appellant had made a confession,and then effectively highlighting it at the trial. Prior to the cross-examination, the only evidence, it was submitted, of any alleged admission by the appellant was the complainant’s statements to the police as to what she thought she overheard as between her mother and the appellant on the Wednesday night. An application should have been made to exclude those statements because they were equivocal.
- For the respondent, it was submitted that an appellant will be bound by the conduct of his counsel at trial unless it gave rise to a miscarriage of justice. A miscarriage of justice will arise where, objectively assessed, there is no rational forensic justification for a challenged decision and the appellant was deprived of a chance of acquittal that was fairly open.
- It was submitted that the cross-examination was consistent with a rational forensic choice to present the complainant as an unreliable witness, whose evidence could not be accepted beyond reasonable doubt. The appellant did not need to set the bar as high as proving she was a liar, as her evidence was uncorroborated and contained inconsistencies and contradictions. The positive elicitation from the complainant that she would not tell her mother “big lies” or “something that didn’t happen” when juxtaposed against the mother’s evidence, did not enhance the complainant’s credit.
- It was submitted that the complainant told police in her first interview that she complained to her mother on the Wednesday, so that this was not an inconsistency introduced in cross-examination. The possibility that the mother was mistaken or untruthful was independently open, quite apart from the complainant’s cross-examination. That cross-examination did not deprive the appellant of a chance of acquittal that was fairly open.
- It was further submitted that the failure to exclude the admission had to be considered in light of the fact that there was no guarantee that the admission would be excluded. It was a matter upon which competent counsel could have differing views. It was submitted that the cross-examination to establish that the confession occurred on a Wednesday, as opposed to Thursday, was evidently intended to support the mother’s evidence that she spoke to the appellant only on the Wednesday night, and that conversation related only to his knowledge of pubic hair being on the complainant. This was also evidently led to support the appellant’s case that the admissions he made in his interview with police concerning the complainant in the shed sitting on his lap, were made prior to him having any specific knowledge of the complaint that she had raised against him. The complainant’s evidence of the confession was not given any prominence in the opening or closing on behalf of the Crown, and it was only relied upon by the appellant’s counsel to demonstrate inconsistency, and to further his own forensic purpose. The trial judge did not mention the evidence in the summing-up. Therefore, one cannot say that the appellant was deprived of an acquittal that was fairly open.
Ground 3 - discussion
- As set out in TKWJ v The Queen,rational tactical decisions made by trial counsel may be regarded by an appellate court to work to the possible, or probable, disadvantage of the accused but cannot be said to constitute unfairness unless something that was done or said in the course of the trial led to a miscarriage of justice.Gaudron J, with whom Gummow J agreed, remarked:
“The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.”
- Recently, the High Court confirmed this approach in Craig v The Queen.
- In assessing whether the way in which the trial was conducted has led to a miscarriage of justice, in the sense that the appellant was deprived of a chance of an acquittal that was fairly open, one needs to examine the state of the evidence prior to the cross-examination that is alleged to have produced the miscarriage.
- As things stood prior to the complainant’s cross-examination, the evidence came only from her police interviews. The impugned cross-examination touched on three areas, namely whether the complainant told lies, whether she lied to her mother about important things such as whether she was being touched, and whether the appellant had admitted touching the complainant to the mother on the Wednesday.
- In her first interview, the complainant gave this evidence:
- (a)she was touched on Monday morning;
- (b)the complainant and her mother spoke on Wednesday night and she told her mother that the appellant was touching her rude part; that conversation occurred when she was in her sister’s room; she could only remember a little bit of the conversation and nothing beyond those bare facts; she later said that in that conversation her mother said “if he does it again make sure you tell me every time he does it”; she told her mother that the appellant “was touching my rude part” and she said “if he does it a couple of times tell me”;
- (c)the appellant did touch her on Thursday morning;
- (d)on the Thursday she said to the appellant “have [you] forgotten something”, because she was “pretty sure mum told him … not to touch my rude part”;given that the events of Thursday morning occurred early, the logical inference is that the mother’s telling him not to touch her must have occurred between Monday and Thursday;
- (e)on Thursday after she had been touched again, she spoke to her mother saying she needed to tell her something in private and they went into the complainant’s room where she told her mother that the appellant had been touching her rude part;
- (f)following that she thought she heard her mother speak to the appellant asking whether he had touched the complainant’s rude parts, and “he said I think he said yes”; the complainant was in the kitchen when she heard that;
- (g)she did not recall speaking to her mother when she was in the bath;
- (h)the first time that the complainant spoke to her mother about being touched was Thursday morning.
- In the second police interview nothing was said on these matters.
- The remaining information that would have been in the hands of trial defence counsel was, one can infer, the statement given by the complainant’s mother. As there was no suggestion that her evidence departed from any statement she gave, one can infer that the statement was substantially the same as her oral evidence. That had these features:
- (a)when she was preparing to have a bath on Wednesday afternoon, the complainant told her of the appellant’s comment, “that she had hair on her rude part”; she asked the complainant how the appellant would know that, and the complainant just laughed;
- (b)following that the mother shut the door, went out to the kitchen and asked the appellant how it was he knew that the complainant had hair down there, drawing the response (to the best of her memory) that he said you could just see it;
- (c)subsequently the mother told the complainant that no-one should touch her or “go near her down there”, that is to say, no-one is allowed to touch or see that area;
- (d)on the Wednesday night the mother asked the complainant if anyone had touched her and the answer was no; she then asked the complainant if the appellant had touched her, and the complainant said no; the subsequent conversation between the mother and the appellant did not involve any assertion or admission that the appellant had touched the complainant; and
- (e)at around 7.30 am on Thursday, the complainant told her that the appellant had touched her.
- Defence counsel at the trial would also have known that the appellant’s record of interview would likely be tendered in evidence. Indeed, defence counsel would have wished it to be tendered, given that it contained repeated denials of any inappropriate conduct. However, that record of interview also contains the following matters, which would have weighed in consideration of what tack to take at the trial:
- (a)on the Monday morning he was in the shed and the complainant joined him and sat on his knee;
- (b)he could not recall which way she was facing when she was sitting there, but “she climbs all over ya”;
- (c)after they were back inside the house the complainant’s mother said to him that the complainant had said the appellant touched her, which the appellant denied;
- (d)on the previous Monday he was in the shed in the morning and the complainant was sitting on his lap;
- (e)he and the complainant’s mother had spoken to the complainant about the complainant getting hair on her arms and legs and on her bottom.
- Thus, defence counsel at the trial was in the position where it could be assumed that the jury would accept that on each of the Monday and Thursday mornings the appellant was in the shed with the complainant sitting on his knee. Further, it was highly likely that the jury would accept that on the Thursday morning after he and the complainant returned inside, the complainant’s mother confronted him with an allegation from the complainant, that the appellant had touched her. Finally, it was likely that the jury would accept that the topic of the complainant’s growing hair “down there” and on her bottom had been raised with the complainant some weeks before the appellant’s interview.
- Allowing for the fact that the complainant was only about nine years old when she was interviewed, and nearly 10 when her pre-recorded evidence was to occur, there were likely to be some variations in quality and content of her evidence. Taking that into account, a comparison of the evidence summarised above in paragraphs  and  would have revealed that each of the complainant and her mother was likely to give evidence that a conversation between them occurred prior to the events of the Thursday morning. Further, each of them was going to give evidence that immediately following the events of Thursday morning a further conversation between them occurred. As to the content of those conversations, whilst each of the complainant and her mother were going to say that the conversation on Thursday morning was concerned with the fact that the appellant was touching the complainant that was not the case in relation to the first conversation. It was the complainant’s evidence, in the interviews at least, that she had told her mother on the Wednesday night that the appellant had touched her. That led to the rather improbable response, on that evidence, of the mother saying that if he does it a couple of times to tell her, or to tell me every time he does it. A rational assessment of the likelihood of the odds would suggest that the jury were likely to reject that part of the evidence; as being most unlikely that a caring mother would tolerate any repetition. That is particularly so given that the mother’s evidence was going to be that she told the complainant later the same day that no-one should touch her on her private parts, and that no-one should see them. Further, the mother’s evidence was going to be that the first conversation was not concerned with a direct allegation of touching, but rather a comment by the appellant that the complainant had hair on her rude part. More importantly, the mother’s evidence was going to be that the first conversation included specific denials by the complainant that anyone, let alone the appellant, had touched her.
- Faced with that evidentiary prospect, defence counsel had to find ways in which to attack the credibility and reliability of the complainant’s evidence in order to maintain the position that his instructions dictated, namely that there was never any inappropriate touching by the appellant. Defence counsel obviously had the benefit, not only of direct instructions from the appellant, but also the fact that the jury would see the recorded interview with the appellant where he denied all of the allegations of inappropriate conduct.
- Different trial counsel might come up with different ways in which to tackle that task. One might be to simply put to the complainant that when she gave evidence that she told her mother, in the conversation prior to Thursday morning, that she had been touched by the appellant, she was lying. That proposition having been put to the complainant, on one view nothing more need be done, particularly as the trial defence counsel might anticipate that the mother would adhere to the statement she had given, and give evidence of a different conversation prior to Thursday morning.
- However, another approach was the one taken. That is, to instil in the jury’s mind the view that the complainant would not lie to her mother about matters of importance, and since being touched by the appellant was a matter of importance, she told the truth to her mother when she said the appellant had not touched her. Confidence in that course might have been encouraged by the fact that the mother’s evidence was going to be that the Wednesday conversation was not concerned with touching and, critically, involved a straight out denial of touching. Defence counsel may well have thought that if anyone was going to be giving evidence favourable to the complainant, it was the complainant’s mother, and therefore the jury may well accept the mother’s evidence as being truthful.
- As mentioned earlier, acceptance of the complainant’s evidence on the Wednesday conversation necessitated accepting that the complainant’s mother effectively tolerated the risk of continued touching or interference. So much is apparent in the responses “if he does it again, make sure you tell me every time he does it” and “if he does it a couple of times, tell me”. Defence counsel may well have taken the view that the likelihood was that the jury would not accept that part of the complainant’s evidence. That would tend to encourage the view that if her mother’s credibility could be bolstered by having the complainant admit that she would not lie to her mother on important issues that (the defence case would be assisted if acceptance of the mother’s evidence could be bolstered by having the complainant admit that she would not lie to her mother on important issues). Of course that still left the fact that the mother and the complainant were both going to say that there was a conversation following the events on Thursday morning, but that could not be helped. At least, from a tactical point of view, there was potential ground to be made in relation to the Wednesday conversation.
- Looked at that way, there was potential forensic advantage to be obtained by cross-examining in the way defence counsel did. So much was accepted by Counsel appearing for the appellant on the appeal. It was approached in a way that perhaps would not be adopted by other counsel, but that is not the test. Nor is the test that “an innocent person hearing that cross-examination would … feel that they had hadn’t been properly represented”.
- Given those matters it is understandable that defence counsel at the trial might have taken the view that trying to establish that the complainant should not be believed in relation to the fact that she and the appellant were together in the shed on each day, with the complainant sitting on his knee, was nigh impossible. Similarly, there was no realistic prospect of avoiding the jury’s conclusion that the complainant’s mother confronted the appellant on the Thursday morning, relating a complaint by the complainant that she had been touched by the appellant.
- Finally, the jury would have some evidence from the appellant’s own interview that showed the appellant had participated in a previous discussion about one of the topics which the complainant referred to in her interviews, namely did she have or was she likely to have hair on her bottom or in the area of her vagina.
- Faced with that situation, it is understandable that defence counsel at the trial took the course of trying to establish that the complainant should not be accepted in respect of some aspect of her evidence. The obvious potential lay in the difference between the mother’s evidence and the complainant’s evidence as to what she had said in the conversation prior to Thursday. If the jury could be persuaded to accept the mother’s evidence as to that conversation, then the obvious leverage in address was to tell the jury that the complainant was telling the truth when she said that the appellant had not touched her. That then opened up the avenue to say that if that point was reached, then they should not be convinced about her evidence concerning the events of Thursday morning, at least insofar as the actual touching was concerned.
- I am not persuaded that the course taken by defence trial counsel was one where it cemented the complainant’s credibility in the mind of the jury. The jury was still faced with the fact that the evidence from the complainant’s mother, who might be expected to give evidence favourable to her own daughter, was directly contrary to that of the complainant in relation to the conversation prior to Thursday. As mentioned earlier, a different counsel may have approached the task in a different way, but the essential thrust of the tactics was to drive a wedge between the complainant’s evidence and that of the mother.
- And, the complainant’s evidence still contained the inconsistencies and contradictions that were urged on the jury.
- Ultimately the question for this Court is whether the way the trial was conducted had the effect that there was a miscarriage of justice. To frame the question for that purpose one must examine whether the appellant lost a chance of acquittal that was fairly open. I am unpersuaded that is so.
- Ultimately a conclusion of the appellant’s guilt rested upon acceptance of the complainant’s evidence. That evidence had some support from the complainant’s mother (as to the complaint made on Thursday morning that the appellant had touched her), and from the appellant himself (who accepted in his interview that on each day he and the complainant were in the shed with the complainant sitting on his knee, and that at another time he had participated in a discussion about the complainant’s growing hair on her private parts). It was always open to the jury to reject the complainant’s evidence of what she said she told her mother on the Wednesday, on the basis that the complainant’s version of the mother’s response was simply unbelievable. But that did not mean that the jury were necessarily compelled to reject other parts of the complainant’s evidence. Specifically, the fact that the complainant had been sitting on the appellant’s knee on each of the two days she nominated, was supported by the appellant’s own evidence in the interview. The fact that the complainant had told her mother she had been touched received support from the mother, and to a lesser degree from the appellant’s interview.
- Faced with those matters, can one conclude that the cross-examination so enhanced the complainant’s credibility in the eyes of the jury that the appellant was unfairly deprived of a chance of acquittal? In my view, that conclusion cannot be sustained. The cross-examination provided a platform for the jury to accept, if they thought fit, the evidence of the mother as to what was said before Thursday, and thus conclude that the complainant was telling the truth when she said that she had not been touched by the appellant. Whatever the content of that conversation that still left the evidence concerning the events on the Thursday morning. As to that, the complainant’s evidence was supported by the complaint she made to her mother and the mother’s confrontation of the appellant.
Exclusion of the admission
- This ground was advanced in support of ground 2. It was said that the unfairness in the way caused by the cross-examination was significantly aggravated by the failure to apply to exclude equivocal evidence from the complainant that the appellant had made a confession. In her first police interview, when dealing with the events on the Thursday, the complainant said that she had told her mother there was something she needed to tell her in private, and they went in to the complainant’s room where she told her mother that the appellant had been touching her. She then gave some evidence of what happened next:
“Complainant: And then I heard mum I think speak to [the appellant].
Police: Okay, tell me what you’ve heard?
Complainant: Did you touch [the complainant’s] rude parts?
Complainant: And he said, I think he said yes.
Complainant: And that’s all I could hear.”
- It will be immediately apparent that the complainant’s evidence was qualified by the phrase “I think he said”. Looking at the DVD of that evidence the complainant’s response was not confident.
- In cross-examination that evidence was not attacked. There was good reason for that. The appellant in his police interview said that the complainant’s mother had confronted him on Thursday morning after he and the complainant had returned to the house. The mother’s evidence (no doubt apparent from her police statement) was that the only time she confronted the appellant was on the Wednesday, and in that conversation there was no admission about touching. The complainant’s evidence in the police interview as to what was said was qualified and defence counsel may well have taken the view that direct cross-examination on that account would only make matters worse.
- Instead, the cross-examination of the complainant in this respect consisted of putting to her that her mother and the appellant had an argument around 5.30 pm on the Wednesday.The complainant agreed. The complainant did not overhear the argument on that day. None of that passage of evidenceconcerned any alleged admission.
- It is not presently necessary to determine whether an objection should have been made to that part of the police interview which contained the alleged admission, nor whether any such objection would have succeeded. That is for a number of reasons. First, the complainant’s evidence was qualified. Secondly, it was not supported by the evidence of her mother. Therefore, whatever worth that passage of evidence had could be diminished, if necessary, by simply pointing that out. Thirdly, the alleged confession was not given any prominence in the trial. It was not the subject of the opening or closing address by the Crown Prosecutor, and defence counsel referred to it only in the context of it being overwhelmed by the lack of support from the mother, and the direct denials by the appellant in his police interview. Fourthly, it was not mentioned in the summing-up at all, and there was no challenge to the directions given to the jury.
- Those matters would lead to the inference that it was most unlikely the jury placed any weight on it at all. Put differently, one could not be satisfied that a miscarriage of justice occurred by the failure to apply to exclude that piece of evidence.
- I am unpersuaded that the appellant was deprived of a chance of acquittal that was fairly open because of the way in which the cross-examination of the complainant was conducted. This ground of appeal should be rejected.
Ground 3 – unsatisfactory and unsafe verdicts
- Counsel for the appellant submitted that the convictions were unsafe and unsatisfactory having regard to the whole of the evidence and relied on some particular factors for that contention:
- (a)the complainant admitted to lyingand therefore the jury could not safely act upon her evidence;
- (b)there were many contradictions in her accounts;
- (c)she told police that “it started Monday, then Tuesday, then Wednesday, then Thursday”,but later said that the touching had only happened on the Monday morning and the Thursday morning;
- (d)the complainant gave evidence that she told her mother on Wednesday night that the appellant had touched her, but that evidence was contradicted by the mother, who said that the complainant denied that she had been touched;
- (e)there was no DNA evidence in support of the allegations;
- (f)the doctor who examined the complainant on the day after the last offence did not observe any form of trauma or injury to the complainant’s vagina or hymen, and there was therefore no medical evidence to support the allegation;
- (g)if the appellant had inserted his finger in the child’s vagina for 10 minutes, as she alleged, she would definitely have suffered an injury because his fingers were rough from the nature of the work he did; and
- (h)trial counsel for the appellant did not strongly enough make the point that the daughter of a friend of the complainant’s mother had recently made a very similar complaint.
- For the respondent it was submitted that whilst the complainant’s evidence was not corroborated, that was not a unique feature in trials of this kind. The inconsistencies the subject of this ground were addressed by the appellant’s trial counsel as being reasons why the jury would have a reasonable doubt.Other inadequacies in the complainant’s evidence were relied upon for the defence. The lack of injuries and the absence of DNA did not prove that contact did not occur. As to the admission about telling lies, the jury may have thought that her admission of telling “silly lies” to her mother when she was “naughty” was in accordance with human experience, and the concession demonstrated honesty.
- Further, the respondent submitted that the complainant’s evidence of the offending was detailed, particularly as to the description of the penetration of her vagina. That detail rendered her account more credible. There was also recent complaint evidence.
- Finally, the respondent submitted that the jury were directed, in terms about which no complaint was made, that the case depended “significantly if not entirely” on whether they accepted the complainant, and they needed to examine her evidence very carefully before they could be satisfied they should act on her evidence.
- The principles governing how this task must be approached are not in doubt. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
- In M v The Queen the High Court said:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
- M v The Queen also held that:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
- Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.
- The jury were directed that their conclusion on the question of guilt depended upon their acceptance of the complainant’s evidence as being credible and reliable. Further, because of the complainant’s age the jury were directed that they needed to “examine the complainant’s evidence very carefully”, having regard to her age and other matters in the submissions, before they could be satisfied they could act on her evidence.
- The complainant’s evidence was supported in a number of respects:
- (a)her interview with the police was given on the Thursday of the last event, so that no question of time lapse intruded;
- (b)the appellant’s own interview established that on those two occasions (on the Monday and the Thursday) he was in the shed early in the morning, and the complainant was sitting on his knee;
- (c)the mother’s evidence was of preliminary complaint, immediately following the Thursday events;
- (d)that part of the mother’s account was supported by the appellant’s own interview, where he said that he had been confronted by the mother following their return to the house on Thursday morning, and that the allegation was that he had touched the complainant;
- (e)the mother’s evidence supported that there was a discussion prior to Thursday which involved the appellant’s knowledge of the appearance of the complainant’s private parts; and
- (f)additional support was provided by the evidence of the doctor, to whom the complainant described what had occurred, in terms similar to her evidence.
- Further, there was a considerable degree of detail in the complainant’s evidence, both as to the time the first set of offences occurred, the nature and contents of the shed, what she was wearing on each occasion and what was done to her. In particular, her description of the act of penetration and what it felt like may well have struck the jury as having the hallmarks of truth. Similarly, that part of her description which involved the appellant’s apparent interest in whether she had grown hair on her private parts derived its own support from the appellant’s admission in his interview that there had been a discussion of that kind, though as he would put it, more centred on the inevitability that she would grow hair in those parts.
- The complainant’s record of interview contains many occasions on which the complainant described what physically happenedand many occasions where her answers referred to something being “there” or “down there”,and other occasions when she answered questions about the way in which she and the appellant were positioned by saying she was either sitting “like that”, or was turned around “like that”.It has therefore been necessary to look at the DVD to make sense of those answers. What becomes apparent is that the complainant was able to physically demonstrate how she was sitting on the appellant’s knee on each of the Monday and Thursday,and how he moved her around so that she was then facing him, leaning back and with her feet up on the back of the chair, roughly in line with his face. Each of those movements was indicated to be by the appellant effectively holding her on her hips, lifting her up and rotating her so that she then faced towards his face, but leaning backwards and with her legs either side of his face and her feet on the back of the chair. It was in that position that, the complainant explained, he was able to look at her bottom and vagina. The complainant also physically explained how it was that the appellant’s hand was able to go down inside her pants and underwear. There was a consistency about her demonstration of that over both of the days when she said things happened to her, in respect of both of the Monday and Thursday.
- Her physical demonstration of how things occurred included a very direct and graphic demonstration in respect of the events on Monday, when she was asked “Where could you feel his hand?”Her answer was “down near that, that part”, but her physical demonstration involved her opening her legs and directly indicating the area of her vagina. The demonstrations left no doubt that when she indicated that her legs and knees were “just about up here and here”,she was indicating the top of the back of the appellant’s chair. Similarly, when she was questioned about how it was that the appellant might see her bottom when she was in a position facing him, her answer was “He like kinda lifted it up”,but her demonstration showed the appellant placing his hands behind her hips and lifting her up.
- That level of detail and consistency could well have been accepted by the jury as being supportive of the complainant’s credibility and reliability.
- The contention that the complainant was an admitted liar does not carry much weight. That passage of evidence was concerned with her admitting that she told lies about “silly things” on occasions when she was naughty but not “big lies”. Given that the complainant was about nine or 10 during the time she was questioned about these events, the jury may well have considered that was quite a predictable response. It did not necessarily lead to the conclusion that the complainant was an admitted or habitual liar.
- The line in her police interview where she told police that “it started Monday then Tuesday then Wednesday then Thursday”is not destructive of the complainant’s credibility, in my view. It is true that the complainant included those days when listing when things had occurred but the rest of the interview made it plain that it was only on the Monday and the Thursday. And, at the end of the interview the questions specifically asked if the offences were confined to the Monday and the Thursday, and the complainant said they were. The earlier response could easily be seen as the product of nerves coming, as it did, right at the start of the police questioning.
- That there was no DNA evidence or medical evidence to support the allegations could have been put to one side by the jury. The evidence from the expert was that washing hands would be sufficient to effectively destroy whatever DNA evidence was there. Further, that expert said that whilst the complainant’s DNA could be excluded, it did not mean they had not been in contact.
- Similarly, the doctor’s evidence, which I have summarised above at paragraph  was that the absence of an injury (whether by bleeding, abrasion or redness of the skin) did not mean that one could conclude there was no penetration.
- The contention that there must have been an injury if the appellant’s finger had been in the vagina for 10 minutes, because of the rough character of his hands, should be put to one side. There was no evidence that his hands were so calloused or rough that that would be the case. Further, the doctor’s evidence was that the absence of injury did not negate contact.
- The contention that “his barrister did not strongly enough make the point that the daughter of a friend of the complainant’s mother had recently made a very similar complaint against …” can be rejected. There is no basis in the evidence to draw the conclusion that the complainant and the friend’s daughter might have colluded together, much less a suggestion that the complainant even knew that the friend’s daughter had made a complaint. There is no basis in the evidence to conclude that the complaint, whatever it was, made by the friend’s daughter was the same or similar to the complaint made in the appellant’s case.
- It is true that the complainant’s evidence contained inconsistencies and contradictions but not surprising. The complainant was interviewed when she was about nine, and gave pre-recorded evidence when she was about 10. Inevitably, the capacity of a young child to consistently recall and record sequences of events, and details, will not necessarily be perfect. And it is apparent from the DVD of the interview that the complainant was uncomfortable and at times reluctant to speak about what occurred.
- Some of those inconsistencies and contradictions were:
- (b)that if she was touched on Monday and did not like that happening, why did she sit on the appellant’s lap again on Thursday;
- (c)that she heard her mother ask the appellant, on Thursday, if he had touched her, when the mother did not say so;
- (d)that she told her mother on Wednesday night that “he was touching my rude part”,whereas according to the mother the complainant only said that the appellant had mentioned she had hair on her private parts, not that he touched her; and the complainant said that conversation was in her sister’s room after her bath, but the mother said it was while she was preparing the bath; and
- (e)the fact that she said that on the Monday there had been touching in the shed, then again a couple of hours later in the house, but she could not remember anything of that time;and in other accounts she went to school afterwards.
- Some additional aspects of the evidence should be discussed. Count 1 was based upon statements by the complainant in her first police interview to the effect that on Monday morning the appellant touched her bottom whilst moving her and looking at her bottom.In the second interview she was reminded that in the first interview she said that on Monday in the shed the appellant “looked at your butt”. The complainant agreed. When the complainant was asked whether the appellant did anything else to her on Monday morning in the shed, she initially said “No” but she subsequently made detailed statements about counts other than Count 1, including answers to the effect that the appellant touched, rubbed and digitally penetrated her vagina. In those circumstances, the negative answer did not, alone or in combination with other inconsistencies, render the guilty verdicts unreasonable in relation to those other counts.
- In relation to Count 1, the complainant was also asked: “Okay. Did – you said [the appellant] looked at your butt? Did he touch your butt?”The complainant replied “Mm, No”. It is not unreasonable to attribute little weight to that answer in these circumstances: (i) the complainant was a young child when interviewed by police; (ii) in her first interview, which occurred within four days after the offending alleged in Count 1, the complainant gave detailed and consistent descriptions (including by demonstrations) of the events constituting that count; (iii) the second police interview occurred more than a year after the first interview; (iv) the complainant’s negative answer in the second interview was given in response to two questions; (v) the expression transcribed as “Mm” might have indicated some uncertainty in her mind at that time about the question; and (vi) the complainant was not asked any further questions in the second interview about the events relating to Count 1 even though further questions about other counts elicited detailed and apparently persuasive answers. Taking into account that it was pre-eminently the function of the jury to assess the complainant’s answers in both interviews in the context of the evidence as a whole, the guilty verdict on Count 1 was reasonably open to the jury notwithstanding the apparent discrepancy in the evidence on that count.
- Counsel for the appellant at trial unsurprisingly focused his address on the inconsistencies and contradictions in the complainant’s evidence, highlighting them as reasons why the jury would either reject her evidence or have such doubt about what had occurred that they could not reach a state of satisfaction beyond reasonable doubt.The summing-up by the learned trial judge also referred to the inconsistencies and contradictions in the complainant’s evidence. As mentioned earlier, the jury were warned that they had to exercise considerable care before they could act upon the complainant’s evidence, in reaching a conclusion of guilt.
- When the whole of the evidence is examined, one is left with the conclusion, in my respectful view, that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on all counts. Notwithstanding the appellant’s denials in his police interview, his admissions that on each of the relevant days, at the time suggested by the complainant, he and the complainant had been in the shed, with her sitting on his knee and alone with him, provided some critical support to her account. Further, the appellant’s admission that there had been a recent occasion where he had been involved in a conversation concerning the complainant’s growing hair on her private parts, also leant support.
- Ground 3 lacks merit.
Conclusion and orders
- As all grounds lack merit, the appeal should be dismissed.
- MULLINS J: I agree with Morrison JA.
 Counts 1, 2, 4 and 5.
 Counts 3 and 6.
 Appeal Book (AB) 180-182.
 AB 185.
 AB 185.
 The interview was on Thursday, 8 September, and therefore the Monday immediately preceding that.
 AB 186.
 AB 187.
 AB 190-193.
 AB 195.
 AB 195.
 AB 197-199.
 AB 200.
 AB 200-201.
 AB 201.
 AB 202.
 AB 203.
 AB 192, 214-215.
 AB 223.
 AB 236.
 AB 238-239.
 AB 239.
 AB 253.
 AB 253.
 AB 255.
 AB 256.
 AB 311.
 AB 312.
 AB 312.
 AB 312 lines 40-46.
 AB 312 line 48 to AB 313 line 2.
 AB 313 line 45 to AB 314 line 15.
 AB 315 lines 4-18.
 AB 315 lines 23-32.
 AB 315 lines 34-38.
 AB 316 lines 14-29.
 AB 317 lines 13-23.
 AB 317 lines 42-47.
 He had been told by the complainant that she had been touched by hands and that a finger had gone into her vagina, but there was no bleeding or pain afterwards.
 AB 79 line 46 to AB 80 line 11.
 AB 80 line 42.
 AB 81 lines 8-21.
 AB 81 line 42.
 AB 82 lines 1-22.
 AB 83 lines 35-42.
 AB 84 lines 18-31.
 AB 86 line 26.
 AB 86 lines 19-31.
 AB 86 line 46 to AB 88 line 5.
 Appellant’s affidavit para 2.
 Appellant’s affidavit para 5.
 Appellant’s affidavit paras 6 and 7.
 Appellant’s affidavit para 8.
 Appellant’s affidavit para 9-11.
 Appeal Transcript T1-5 lines 35-43.
 AB 311 line 23 to AB 313 line 7; emphasis added.
 AB 317 lines 1-23.
  QCA 96.
 See AB 261 lines 50-60.
 Reliance was placed upon R v Khalil (1987) 44 SASR 23, and R v Ly, Nguyen and Ngo  SASCFC 133.
 Reference was made to Craig v The Queen (2018) 92 ALJR 390 at ; R v DBB  1 Qd R 188 at -; Nudd v The Queen (2006) 80 ALJR 614 at -, , ,  and -; TKWJ v The Queen (2002) 212 CLR 124 at -, -, -,  and -.
 (2002) 212 CLR 124. See also Nudd v The Queen (2006) 80 ALJR 614.
 TKWJ at -.
 TKWJ at -.
 92 ALJR 390 at .
 AB 204-205.
 AB 247.
 AB 190.
 AB 186; AB 197.
 AB 202.
 AB 202-203.
 AB 206.
 AB 245.
 AB 342.
 AB 343 lines 13-19.
 AB 340 lines 51-57; AB 347 line 20.
 AB 342 lines 3-10 and 51-57.
 AB 348 lines 12-19.
 As it was put before this Court: Appeal Transcript T1-12 lines 18-20.
 AB 274 lines 50-60.
 AB 26 lines 7-9.
 AB 26 lines 7-21.
 The reference was to AB 25.
 AB 261.
 Reference was made to AB 126 lines 35-46, AB 127 lines 18-43, AB 128 lines 5-38 and AB 130 line 4 to AB 131 line 29.
 (2011) 243 CLR 400 at -; see also M v The Queen (1994) 181 CLR 487 at 493-494.
 M v The Queen at 493; internal citations omitted. Reaffirmed in SKA v The Queen (2011) 243 CLR 400.
 M v The Queen at 494.
 (2016) 258 CLR 308 at -; internal citations omitted.
 Particularly as to how she and the appellant were seated and how he changed her position by lifting her and rotating her.
 For example, AB 271 line 5, AB 273 about line 40 and AB 279-280.
 For example, AB 283 and 289.
 Sitting on his knees, her own knees together, and facing away from him in the same direction as he was looking.
 AB 285 about line 20.
 AB 290 about line 35, AB 291 about line 55.
 AB 293 about line 48.
 AB 261 lines 50-60.
 AB 261 lines 50-60.
 Balance of police interview, and AB 277-278 and 299.
 AB 275-276.
 AB 262 lines 3-5, AB 28 lines 1-20.
 AB 192, 222, 224 and 225.
 AB 252.
 Thus: the statement that it occurred every day between Monday and Thursday, AB 126 lines 35-46 and AB 132 lines 25-38; changes in the account of which finger the appellant used, AB 127 lines 18-26; the account that things occurred a couple of hours later on Monday, AB 127 lines 31-46; the fact that the mother’s evidence was that the complainant said she was not touched on Monday, AB 128 lines 15-38; the lack of injury and forensic support, AB 129 line 28-42; the doubt about the admission and the fact that the mother’s evidence did not support it, AB 131 lines 14-29; and reasons to doubt the credibility and reliability of the complainant, AB 130-131.
- Published Case Name:
R v BDH
- Shortened Case Name:
R v BDH
 QCA 47
Fraser JA, Morrison JA, Mullins J
22 Mar 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC460/17 (No Citation)||13 Dec 2017||Date of Conviction (Lynham DCJ).|
|Appeal Determined (QCA)|| QCA 47||22 Mar 2019||Appeal against conviction dismissed: Fraser and Morrison JJA and Mullins J.|