R v TAR[2020] QCA 227

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have had the advantage of reading the draft reasons prepared by Jackson J.  Whilst I agree with his Honour’s reasons, I wish to add some comments of my own based on my review of the evidence.
2. [2]
   The central attack made on the jury’s verdicts was that the complainant’s evidence was so lacking in reliability that the jury should have had a doubt about the appellant’s guilt.  That lack of reliability was said to flow from various inconsistencies in the complainant’s evidence, and in particular, doubts arising from her account of how the events the subject of count 1 occurred.
3. [3]
   The complainant’s evidence consisted of her police interview and pre-recorded evidence for the trial.  At the time of her interview she was just short of nine and a half years old.  At the time of her oral evidence she was 12 and a half years old.
4. [4]
   The police interview followed a not unfamiliar pattern in which the complainant is asked to give a general account and is then subjected to closer questioning as to matters of detail.  In this case the complainant went armed with several pages of handwritten notes which had been prepared by the complainant when in the company of her neighbour nanny.  Those notes consistently described her complaint about the appellant’s conduct as being that he had “put his hands in my rude part”, and that he had persisted even though she told him to stop.
5. [5]
   At the commencement of the police interview the complainant said that the appellant had been “touching my rude parts”, and that she had told him to stop but he would not listen.^[1]  When asked to tell the interviewers about the touching, the complainant responded “like inside?”, which she then identified as being “where you have your baby”.^[2]
6. [6]
   Thereafter on each count^[3] the complainant’s description was that the appellant had put his fingers “in my rude part”.  At one point, in relation to count 3, she identified the “rude part” as being “Where you, do, number one.”^[4]
7. [7]
   That description was used by the complainant in relation to count 1, which concerned events while travelling in the family car.  This event featured strongly in the appellant’s case put to this Court.  That was because the complainant gave inconsistent evidence as to where she was in the car.  On all accounts, she was sitting in the next row behind the front seats, which were occupied by the driver (her father) and the front passenger (her mother).  When she first described the location of people in the middle row it was to say that the appellant was next to the “roller door”,^[5] and she “was sitting next to … in the middle”.^[6]  Then, when asked where she was, she said “Next to the, next to the window.  Where dad was driving”.^[7]  Then, when questioned about that, she said that no-one was in the middle and she thought her sister was at a friend’s house.^[8]
8. [8]
   The second aspect about count 1 was the description by the complainant as to when she was touched: “… when they was [sic] driving … I was sleeping and then he did it”.^[9]  Based on this it was said that the jury should have doubted her account as she was asleep and could not have had any reliable recollection.
9. [9]
   In her oral evidence the complainant affirmed the truth of what was in the recorded police interview.  In cross-examination about count 1, she was reminded that she told the police officer that she was sitting next to the window and she responded “I was sitting in the middle”, and her sister was there.^[10]  She also agreed that she had told the police she was sleeping at the time she was touched, but said she was “not a deep sleeper” and what she meant was she was half asleep when she was touched.^[11]
10. [10]
    Shortly thereafter in the cross-examination it became apparent that the complainant had told the prosecutor prior to the trial commencing that her memory at the time of the trial was that she was in the middle seat of the middle row, and her sister was at the window.^[12]  Inferentially, that account had been revealed by the prosecutor to the defence prior to the commencement of the trial.
11. [11]
    The evidence of the complainant’s mother was that the appellant was sitting in the passenger side of the middle row, the complainant was in the middle and her sister was on the right hand side.  If the jury accepted that evidence, and there was no compelling reason for them not to do so, considerable support could be drawn for the complainant’s account.  She had initially said she was in the middle of the middle row and that position meant that she was within range to be touched by the appellant, as she said she was.  The improbability of any touching by virtue of the appellant being on the left window side and the complainant being on the right window side therefore disappeared if the jury concluded that she was sitting in the middle.  It was open to them to form that view based on the evidence of the mother.
12. [12]
    Further, the jury could also reason that whilst there had been some touching on that occasion, it was not “inside my rude part”.  That conclusion could be reached by adhering to the trial judge’s directions, which were to the effect that the jury was not obliged to accept or reject the entirety of a witness’s evidence, but could accept one part and reject another part.  The circumstance that the events of count 2 occurred in the family car with the complainant’s parents present was enough, in my view, to make it likely that the jury adopted that line of reasoning.
13. [13]
    The trial judge’s summing-up listed the various discrepancies and inconsistencies in the complainant’s evidence in some detail.  They were all matters for the jury to weigh in assessing the credibility and reliability of the complainant’s evidence, and ultimately whether they could rely upon that evidence to the requisite state of satisfaction as to guilt.  The directions also contained appropriate warnings to scrutinise the complainant’s evidence with great care before acting upon it.
14. [14]
    In a case such as this where the directions at the trial are not criticised, and there is some evident support for the complainant’s account, this Court must be careful not to substitute trial by appellate process for that by the constitutional arbiter of fact, namely the jury.  In my respectful view, that is what the appellant’s contentions invite this Court to do.
15. [15]
    I agree with the order proposed by Jackson J.
16. [16]
    BODDICE J:  The circumstances of the offences the subject of this appeal and the relevant evidence are comprehensively summarised in the reasons of Jackson J.
17. [17]
    That summary, which I gratefully adopt, details the discrepancies and inconsistencies in the complainant’s accounts of the appellant’s offending conduct.
18. [18]
    To succeed in a ground of appeal that the verdicts of the jury are unreasonable, the appellant must demonstrate that it was not open to the jury, on a consideration of the evidence as a whole, to be satisfied of his guilt of each of the offences beyond reasonable doubt.
19. [19]
    Having considered the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of each of those offences.  The inconsistencies and discrepancies in the complainant’s account, together with the identified inadequacies of aspects of the remaining evidence, such as the circumstances of the preparation of the notes produced by the complainant at her initial interview, are not such that a jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant’s guilt of each of those offences.
20. [20]
    As Jackson J observed, there was a rational basis for the jury, allowing for those inconsistencies and discrepancies and other inadequacies, to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences of rape.
21. [21]
    Further, the jury’s verdict of guilty of the alternate verdict in count 1 is consistent with a reasonable doubt as to penetration, not a doubt as to whether the appellant had engaged in sexual offending on that occasion as alleged by the complainant.
22. [22]
    I agree with the order proposed by Jackson J.
23. [23]
    JACKSON J:  On 8 November 2019, the appellant was convicted of an offence of unlawful and indecent treatment of a child under 12 years^[13] committed on 10 July 2015 (that was an alternative verdict on count 1), an offence of rape^[14] committed on 18 July 2015 (count 2) and a further offence of rape committed on 27 November 2015 (count 3).  He was acquitted of a further charge of unlawful and indecent treatment of a child under 12 years^[15] (count 4) alleged to have been committed between 23 December 2015 and 27 December 2015.  The appellant appeals against the convictions.^[16]  The sole ground of appeal is that the verdicts are unreasonable.^[17]
24. [24]
    The complainant was one of five children of the appellant’s sister and her husband living at home at the time of the relevant events.^[18]  At those times, she was eight years of age, attended primary school in grade three and received special education to aid her comprehension and communication skills.

Count 1

25. [25]
    On 10 July 2015, on the complainant’s mother’s birthday, the family and the appellant travelled from Toowoomba to the Gold Coast in the family car, which was a Tarago people mover style of van.  The father drove, the mother sat in the passenger seat in the front.  The appellant sat on the passenger side (closest to the sliding door) in the middle row of seats, with the complainant to his right.  On some of the evidence, the complainant’s elder sister was also seated in that row on the driver’s side next to the window.  The complainant’s other siblings were seated in the back row of seats.
26. [26]
    The complainant said that “when they was (sic) driving, I was sleeping and then he did it… he put his fingers in my rude part”.^[19]  When asked to say more about that time, the complainant said that she did not remember.^[20]
27. [27]
    Count 1 was charged as an offence of rape.  The jury returned a verdict of not guilty of the offence of rape but guilty of indecent treatment.  The relevant treatment was an indecent dealing^[21] by touching.  An offence of that kind, if established by the evidence, is an alternative verdict available on an indictment charging rape.^[22]  Necessarily, the jury’s verdict means that they were not satisfied beyond reasonable doubt that the appellant penetrated the complainant’s vulva or vagina^[23] but were satisfied beyond reasonable doubt that he did indecently touch her in some way.
28. [28]
    The issue was that the alleged digital penetration did not occur.  The complainant was cross-examined briefly at the preliminary hearing of her evidence^[24] in an effort to show that her evidence was unreliable.  One question was that when interviewed by police to obtain her statement,^[25] she had said she was sleeping at the time that the appellant was touching her, with which the complainant agreed,^[26] but later she said she was half-asleep when he touched her.^[27]  Another was that she only became worried that the appellant touched her after talking to a neighbour, which the complainant denied.^[28]  Another was that the appellant did not touch her on her private parts in the family car on that day, which she answered that she couldn’t remember.^[29]
29. [29]
    The complainants’ mother and father gave evidence.  The mother’s evidence, in particular, supported the background events of the trip to the Gold Coast on her birthday in the family car and the location of the appellant in the middle row of seats with the complainant to his right.  But there was no other evidence that supported the alleged digital penetration.

Count 2

30. [30]
    On 18 July 2015, on the complainant’s father’s birthday, the complainant said that: “I was in my dad’s room… [the appellant] picked me, he picked me up and put … me into the lounge room” and “[t]hen, he did it… [p]ut his finger in my rude part”.^[30]  She explained that: “I was watching Spongebob Square Pants” and another program,^[31] then “fell asleep”^[32] and then the appellant took her into the lounge room.^[33]  He picked her up and put her on the long couch,^[34] but someone who she thought was her sister was on the couch,^[35] so the appellant put her on the floor.^[36]  Then he “was doing it”,^[37] meaning “put his fingers in the middle”.^[38]
31. [31]
    The issue was that the alleged digital penetration did not occur.  The complainant was cross-examined by only three questions about it at the preliminary hearing.^[39]  She was asked that the appellant never touched her anywhere at her house on her private parts, and she answered that he did,^[40] although she also answered that she could not remember whether she was still asleep when he touched her on that day.^[41]
32. [32]
    There was no evidence from any other witness as to the events of that day.

Count 3

33. [33]
    On 27 November 2015, on the complainant’s brother’s birthday, the family and the appellant went for a picnic to Queen’s Park in Ipswich.^[42]  The appellant stayed that night at the family home.^[43]
34. [34]
    The complainant said that: “I was sleeping…in the boys’ room.  And then [the appellant] came in and he did it”^[44] meaning put “fingers in my rude part”.^[45]
35. [35]
    The complainant said that there were three others in the boys’ room, including her younger brother and younger sister.^[46]  And she also said that her father “saw [the appellant] doing it”.^[47]
36. [36]
    The issue was that the alleged digital penetration did not occur.  The complainant was cross-examined by only one question at the preliminary hearing.^[48]  She was asked that the appellant did not touch her on her private parts in her brothers’ room and she answered that she did not remember.^[49]
37. [37]
    The complainant’s mother gave evidence as to the day’s outing to Ipswich and that the appellant stayed that night, but no evidence about any events of that evening.
38. [38]
    The complainant’s father gave evidence as to one occasion where he saw the appellant, the complainant and her sister sitting against the wall on a bed, but he thought nothing of it and shut the door and walked off.^[50]  He could not identify when it was, but it was the daytime^[51] and occurred in his bedroom,^[52] where there was a television set,^[53] not the boys’ room.
39. [39]
    There were a number of questions about inconsistencies or other aspects of the complainant’s evidence that caused the trial judge to give a direction to the jury that a number of features of the evidence had a tendency to undermine her reliability.^[54]
40. [40]
    The appellant relies on the facts in evidence that:

    1. (a)
       the complainant said she had been sleeping at or before the time of the events of count 1, count 2 and count 3;
    2. (b)
       when it was put to her that the appellant had not touched her on two of the three occasions, the complainant said she could not remember on two of them;
    3. (c)
       the complainant’s unsupported allegation that her father had seen the appellant doing the acts constituting count 3; and
    4. (d)
       (from the complainant’s statement to police and evidence, her handwritten notes and other evidence) the complainant was receiving special education as a result of comprehension and communication skills, so that her evidence was likely to be less reliable.
41. [41]
    Taken together, the appellant submits that because of these and some other lesser features of the evidence, the jury ought to have had a significant doubt as to whether they could accept the complainant’s evidence on which each of the convictions depended and ought to have had a reasonable doubt that the appellant was guilty of any of the offences of which he was convicted.
42. [42]
    The respondent submits that discrepancies between different versions offered at different times are reasonably to be expected of a child witness.^[55]  Some cases show that a statement admitted under s 93A of the Evidence Act 1977 (Qld) can support a conviction, although the child’s evidence at trial is considered unreliable.^[56]  Other cases show that statements made to police that are admitted under s 93A are not unusually inconsistent internally or with other evidence, but the question of reliability is best left for the jury after appropriate directions.^[57]
43. [43]
    The respondent submits further that the arguments now advanced by the appellant were advanced at the trial on the appellant’s behalf and highlighted by the trial judge, and so they were.  Accordingly, the jury must have rejected them.  The respondent submits, finally, that having undertaken a review of the evidence this court should be satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the verdicts and should be unpersuaded that the verdicts were unreasonable.^[58]
44. [44]
    The timeline of the events is of some importance.  As alleged, the offending began on 10 July 2015 and ended before Christmas that year.  Apart from count 4, each of the events was alleged to have occurred on a family birthday.  The complainant was between eight years six months and eight years 10 months of age.  It was not until 18 May 2016 that the complainant raised a complaint about the appellant’s conduct, initially in an interview with a school chaplain.  Although her parents and police were notified promptly, it was not until 13 June 2016, almost another month, before the complainant gave a statement to police that was admitted into evidence at the trial.  She was then nine years and six months of age.  But her verbal and written skills then appear to have been below those that might be expected of most nine year olds.  The preliminary hearing of the complainant’s evidence was held on 10 June 2019.  She was then 12 years and five months of age.
45. [45]
    That timeline may explain variations between the complainant’s statement to police on 13 June 2016 and her evidence on 10 June 2019.  But the internal quality of her statement to police on 13 June 2016 as to the events on 10 July 2015, 18 July 2015 and 27 November 2015 are not explained by that.  Some vagueness in recollection may have been attributable to the delay between the times of the events alleged and when the statement was made, which was almost a year after the events of counts 1 and 2.
46. [46]
    As to count 1, the verdict of the jury shows that they did not wholly accept the complainant’s statement to police.  The complainant’s statement was of penetration, not indecent touching short of penetration, although she accepted at the time of the statement and at the preliminary hearing that she had been sleeping beforehand.  What is the explanation for the rejection of that evidence but acceptance of indecent touching, when there was no evidence of any touching except the complainant’s evidence?
47. [47]
    The jury may have considered that there was some objective unlikelihood that the appellant would have digitally penetrated the complainant in the family car on the way to or from the Gold Coast as alleged.  First, there was no evidence that on any prior occasion the appellant had shown any sexual interest in the complainant.  Second, there was no evidence to suggest that the complainant was not clothed.  Third, there was no evidence that anyone else in the car, including the complainant’s elder sister who was also sitting in the middle row of seats, observed any unusual conduct by the appellant.  Fourth, there is no suggestion that the complainant demurred or reacted to the experience.  Fifth, in those circumstances, the alleged conduct would have been a brazen act by the appellant, which he ought to have expected would not go undetected.
48. [48]
    Even so, necessarily, the jury must have accepted the complainant’s statement and evidence to the extent that they were satisfied beyond reasonable doubt that the appellant indecently touched the complainant in the family car travelling between the Gold Coast and Toowoomba.
49. [49]
    As to count 2, the jury must have accepted the complainant’s statement to police that the appellant had taken her into the lounge room and digitally penetrated her on the evening or night of her father’s birthday, even though her elder sister was sleeping on the lounge nearby, and were satisfied beyond reasonable doubt that the appellant thereby raped the complainant.
50. [50]
    As to count 3, the jury either accepted the complainant’s statement that her father had seen the relevant events but did not give evidence that supported her statement about that, or did not accept her statement about that but nevertheless accepted her statement to police otherwise that the appellant digitally penetrated her on the night of her brother’s birthday in the boy’s bedroom, notwithstanding that she could not remember that the appellant had done so by the time of the preliminary hearing of her evidence and were satisfied beyond reasonable doubt that the appellant thereby raped her.
51. [51]
    But for one possible point, despite the weakness of some of the evidence in the prosecution case, and the criticisms that may fairly be made of the quality of the complainant’s evidence, I would still consider the questions raised by this appeal to be insufficient to cross the threshold of an unreasonable verdict for any of the convictions.
52. [52]
    The possible exception is that, in my view, the verdict of guilty of indecent touching on count 1 is not supported by the statement of the complainant.  Her statement was of “put[ting] his fingers in my rude part”, being penetration, and her evidence at the preliminary hearing was that she could not remember the appellant touching her on her private parts.  If the jury accepted that evidence, and that they were satisfied beyond reasonable doubt that the appellant digitally penetrated the complainant, the jury was bound to convict the appellant of rape.  If the jury were not prepared to accept that evidence, the basis for a factual finding of indecent touching not amounting to penetration so that the jury could have been satisfied beyond reasonable doubt that the appellant was guilty of the offence of indecent treatment, is not readily apparent.  Against that:

    1. (a)
       the complainant’s initial reference to the appellant’s conduct in her statement to  police was that the appellant’s “been touching my rude parts”;^[59] and
    2. (b)
       the questions asked of the complainant at the preliminary hearing about count 2 included that the appellant did not “touch” the complainant on her private part and her answer was that he did.
53. [53]
    In the end, having weighed those circumstances carefully, in my view, the appellant has not demonstrated that any of the convictions is unreasonable.  The jury might have had a reasonable doubt in relation to each of the convictions, but I cannot say that they ought to have done so, in the sense that it was not reasonably open for the jury to be satisfied beyond reasonable doubt of the commission of any of the offences of which the appellant was convicted.
54. [54]
    Having considered the evidence independently as a whole, in assessing the reasonableness of the verdicts,^[60] in my view, there is not a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the required standard of proof.^[61]
55. [55]
    I would dismiss the appeal.