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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Nibigira  QCA 125
CA No 170 of 2019
CA No 340 of 2019
CA No 11 of 2020
DC No 1511 of 2018
DC No 1512 of 2018
Court of Appeal
Appeal against Conviction & Sentence
District Court at Brisbane – Date of Conviction: 10 June and 31 October 2019; Date of Sentence: 5 December 2019 (Moynihan QC DCJ)
8 June 2021
8 April 2021
Sofronoff P and Mullins JA and Bradley J
In Appeal No 170 of 2019:
In Appeal No 340 of 2019:
In Application No 11 of 2020:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on one indictment of 17 counts which included the offences of maintaining a sexual relationship with a child, indecent treatment of a child, indecent treatment of a child under care and rape – where the appellant submits that their convictions on counts 5, 16, 17 were unreasonable due to inconsistencies in the two complainant children’s evidence – where the appellant submits that their convictions on counts 11, 12, 13 and 14 were unreasonable due to inconsistencies between the evidence given by the two complainant children and evidence given by other witnesses – whether the complainants’ evidence was reliable and credible – whether upon an independent assessment of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on each of the counts appealed
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on a second indictment of three counts involving the offences of rape and indecent dealing with a child under 16 and under 12 – where the appellant gave evidence at trial denying he committed the offences – where the appellant submits that their convictions on those three counts were unreasonable or could not be supported by the evidence due to inconsistencies between the evidence given by the two complainant children and evidence given by other witnesses – whether the complainants’ evidence was reliable and credible – whether upon an independent assessment of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on each of the counts appealed
P F Richards for the appellant in CA No 170 of 2019
The appellant/applicant appeared on his own behalf in CA No 340 of 2019 and CA No 11 of 2020
D Nardone for the respondent
Legal Aid Queensland for the appellant in CA No 170 of 2019
The appellant/applicant appeared on his own behalf in CA No 340 of 2019 and CA No 11 of 2020
Director of Public Prosecutions (Queensland) for the respondents
- SOFRONOFF P:
Appeal 170 of 2019
- On indictment number 1512 of 2018, the appellant was charged with one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child under 16, under 12, nine counts of indecent treatment of a child under 16, under 12 and under care, and six counts of rape. Counts 1 to 17 concerned a child, A. Count 18 concerned a different child, B. Count 1 charged the appellant with maintaining a sexual relationship with a child. The particulars were made up of one or more of the remaining 16 charges involving that child.
- The appellant was described as a “church leader” of a Pentecostal Church at Acacia Ridge whose congregation comprised people of central African origin. The appellant was a member of the church executive, its treasurer and an “evangelist”. The complainants and their families were members of the congregation and the two complainants were members of the church youth choir. It was the practice of the appellant to drive children who were members of the choir to and from choir practice in his mini-van.
- A gave the following evidence about counts 1 to 17.
- In 2012, after choir practice at the appellant’s house, A went upstairs to get a drink and the appellant gave her a glass. He then asked her for a hug and she gave him one. He then put his hands on her buttocks and squeezed them. This was count 2.
- A week or two later, A was again at the appellant’s house after choir practice. She went inside to look for a friend and, while she was in the house, the appellant again asked her for a hug and again squeezed her buttocks. A then left him and found her friend, whom she told what had happened. This was count 3.
- During the same year, A’s father dropped her off at choir practice after which the appellant drove her home. On the way, she sat in the back seat. The appellant stopped the car near a park and asked A to sit next to him in the front seat. She complied. The appellant then told her to spread open her legs and, again, she complied. He began to touch her thighs, squeezing them. This was count 4. He put his hand inside her underpants and moved his hand around her vaginal area. She said that he “like he’s put his finger in”. This was count 5. He then removed his hand and put saliva on his fingers and continued to fondle her vaginal area. This was count 6. He then drove A home.
- On another occasion the appellant drove A from her home to choir practice. She was sitting in the front seat of the car. The appellant put his hand beneath her underwear and touched her vaginal area. This was count 7. He then put his saliva onto his finger and touched A around her vagina again. He did not insert his finger. This was count 8.
- On a subsequent occasion, the appellant once again collected in his car A at her home to take her to choir practice. He touched her thighs and put his hand beneath her underpants and moved his fingers around her vagina. This was count 9. He then spat on his finger and put his finger once more on her vaginal area. He then dropped her off at choir practice. This was count 10. A said in her evidence that, after choir practice at a friend’s house, the appellant picked her up in a green car owned by another member of the congregation. She said that the appellant parked the car near a tree and told her to get into the back seat of the car. He joined her there and told her to open her legs. He touched her thighs and put his finger into her vagina. This was count 11. He told her to remove her underpants and she pulled them below her knees. He then loosened his trousers and made her touch his penis. This was count 12. At a subsequent interview with police, A said that she had “lied” because she had not then told police that the appellant had “put his thing in my vagina”. She said that after he had given her his “dick to squash”, he put “this plastic thing” onto his penis. He told her to lie down and he inserted his penis into her vagina. This was count 13. This caused her to scream. The appellant withdrew his penis and rubbed her vagina with his fingers and then reinserted his penis into her vagina. This was count 14. He repeated this about 5 times. She said that “watery stuff” that was white came out of her vagina. The appellant used some tissues to wipe her vagina and the seat. Some blood came out. After A got out of the car she had difficulty walking. Her mother later asked her about it and she said that she had been hit and then later said she fell. On a subsequent occasion, when the appellant again was to drop A at home after choir practice, in the same green car, he put his hand under A’s shirt and fondled her breasts. This was count 15. Subsequently, on an occasion when the appellant drove members of the choir to Southbank for a church event, he was able to get A alone in the minibus he had used for transport and touched her thighs and fondled her vaginal area. He inserted his finger into her vagina. This was count 16. He then spat on his fingers and “put it back in”. This was count 17.
- After counts 16 and 17, A told six of her female friends not to go in a car with the appellant because he would “keep touching you and stuff”. This let the secret out and A’s father learned about what his daughter had said.
- Count 18 concerned B who had joined the choir in 2011. The appellant had collected B at her home in a white van. He was to drive her to a “youth party” at his house. He stopped the car near a park and told B to sit in the front seat next to him. He began to touch her legs and moved his hand under her dress also. B told him to stop and he she moved away from him.
- The appellant contended that his convictions on counts 5, 16 and 17 were unreasonable. The point he raised was a narrow one. Count 5 was a charge of rape. A’s evidence was as follows:
“[QUESTION]: Okay. What’s um, tell me more about him touching your vagina.
[ANSWER]: Like he just went round and round and round.
[QUESTION]: I know it might be uncomfortable but can you tell me more about that?
[ANSWER]: He just touched it and like went in it and
[QUESTION]: What was he touching it with?
[ANSWER]: His hand.
[QUESTION]: His hands.
[ANSWER]: You said that he went in it. What do you mean by that?
[QUESTION]: Like he went into the centre.
[ANSWER]: What do you ah, when you say he went into the centre, what do you mean by that? How did he go into the centre?
[QUESTION]: Like he’s put his finger in.”
- A little later the interviewer obtained a few more details:
“[QUESTION]: Do you understand what I mean? No. Okay. So you just told us that um he didn’t keep his hands in one place, he kept on going higher. And then um, you said that he touched your thing, which was your vagina. Is that right? Um and then he went round and round and into the centre. Okay. Was that on the outside of your underwear?
[QUESTION]: No. Tell me more about where that was.
[ANSWER]: It was in, it wasn’t outside my un-, underwear but it was inside, like not outside, he went inside.
[QUESTION]: It went inside your underwear?
[QUESTION]: Okay. And what did he go inside your underwear with?
[ANSWER]: His hands.
- The evidence of digital penetration was clear enough to support the guilty verdict. However, in cross-examination there was the following exchange about this offence and it is upon this that the appellant relies:
“[QUESTION]: Okay. Do you know when he put his hand on your vagina, was that over your underwear or under your underwear?--- First it was over my underwear, then he went under my underwear.
Okay. And now, when he went under your underwear, what went under your underwear? Was it fingers, thumb, the whole hand – what?---Fingers.
Was it one finger or more than one finger?---More than one.
Okay. And what did he do with – well, do you know how many fingers or do you just know that it was more than one?---I just know there was more than one.
Do you know what he did with those fingers? What did he do with those fingers?---He just kept going round and round.
Round and round what?---My vagina.
Okay. So are you saying that he never put his fingers inside your vagina but just moved them round and round your vagina?---Yes.”
- The appellant submitted that A’s denial that the appellant ever “put his fingers inside your vagina” rendered her evidence about digital penetration so unreliable that the guilty verdict was unreasonable.
- This submission should be rejected. A’s evidence that the appellant “put his finger in” and her acknowledgement that the appellant “never put his fingers inside your vagina” are not inconsistent when read in full context. In the latter section of evidence, A’s attention was being directed by counsel to what the appellant did with his hand. In that context, having regard to her evidence that the appellant used a single finger to rape her, her acceptance that, while the appellant used his fingers to fondle her beneath her underpants, he did not penetrate her with his fingers does not bear upon her earlier evidence that he used a single finger when he did so. It is significant that, having obtained a tactical advantage but not a substantive one, counsel was not bold enough to put distinctly to A that the appellant never inserted his finger into her on that occasion. One can understand the forensic thinking behind such a prudent course; but the jury was entitled to conclude that the apparent concession was not a concession at all and that A’s earlier evidence remained unchallenged. In short, Mr Nardone’s submission should be accepted that the cross-examination was not directed towards the act of digital penetration that had been alleged but towards what the appellant had been doing with his fingers while rubbing her vagina.
- The jury was alerted to this defence argument by the learned trial judge, who directed the jury to scrutinise the complainant’s evidence with care before arriving at a conclusion of guilt.
- It was open to the jury to reject this argument and to accept the complainant’s clear evidence about the commission of these offences.
- Counsel for the appellant candidly accepted that his submission about counts 16 and 17 were based upon “basically the same reason”. They should fail for the same reason.
- This ground should be rejected.
- The second ground of appeal concerns counts 11, 12, 13 and 14 because they all involve evidence from A that the appellant was using a “green car” when he committed the offences. The owner of this car, Mathias Josias Kahitira, swore that he had never lent his car to the appellant. Although police tested the car for the presence of the bodily fluids described by the complainant, no traces were found. Counts 13 and 14 related to acts of penile penetration which the complainant only revealed to police at her second interview. In her evidence, A acknowledged having been in the green car only once, despite the fact that the charges related to two occasions. Finally, although A said that these offences were committed on her way home from choir practice at B’s home, the evidence showed that there had never been any practice there.
- The jury had before them the complainant’s generally clear and precise evidence about the offending. It should also have been apparent to the jury that much of what A said about the offending concerned acts and events that it would be hard to credit were within the ordinary experience of a girl of her age. The substantial detail in her evidence and, in particular, her description of bodily fluids of a particular kind, her account of the appellant’s use of a “plastic thing”, evidently a condom, and her evidence about the pain of penile penetration that caused her to scream, all invested her account with verisimilitude. Her account of that pain and the consequent difficulty that she had walking afterwards was supported by evidence from her mother and father. Her credit was enhanced by the evidence of preliminary complaint to her friends and to her parents.
- The jury was entitled to accept her substantive evidence about the acts that constituted the offences while giving no weight to peripheral evidence about the car which the appellant used or the place from which he drove her. In any case, as Mr Nardone, who appeared for the respondent, correctly pointed out, although the evidence was that Mr Kahitira never lent the car to the appellant, the evidence did not foreclose the possibility that the appellant used the car without the owner’s knowledge. Nor is the fact that the complainant did not disclose the penile rape offences at her first interview remarkable in cases of sexual offences against young children. The complainant explained that failure: it was her natural, although unjustified, shame such as victims frequently experience:
“Are you sure you didn’t go back the second time because your father and your mother told you, “You’d better go back and tell them that that’s what happened?”---No. I was talking to my mum and I told her that I didn’t tell them and she was, like – and I told her because I – I felt ashamed and that I didn’t want to tell them and I didn’t want to talk to them about it and she said – it’s better to just tell them what actually happened.”
- The appeal should be dismissed.
Appeal 340 of 2019
- The appellant was also charged on a different indictment with one count of rape, one count of indecent dealing with a child under 16, under 12, and another count of indecent dealing with a child under 16. The first two counts concerned the same complainant. A jury found him guilty on all three counts. The appellant contends that convictions were unreasonable or cannot be supported by the evidence. The appellant represented himself on this appeal, but the court has been furnished with a written outline that he prepared with the assistance of counsel. The appellant, who does not speak English and who addressed the court through an interpreter, wished to rely upon that outline but he also made a further submission orally.
- The first of the two complainants, C, was nine or 10 years old when the two offences against her were committed. Her evidence was that she was at the appellant’s house for choir practice and went to the toilet. Her evidence was as follows:
“[QUESTION]: Tell me everything about the first time that it happened. And start at the beginning.
[ANSWER]: The first time?
[ANSWER]: ‘Cause I was going like to the toilet. And then he’s like in his bedroom. And then he heard me go to the toilet. And he will follow me to the toilet. And then he would do bad things to me.
[QUESTION]: Tell me, tell me everything about the bad things that he did to you. And start at the beginning.
[ANSWER]: Okay. He put his thing to me. And then he’ll go like this. But he didn’t put his thing and go like this.
[QUESTION]: What do you mean by thing? Can you tell me? Do you know another word for thing?
[ANSWER]: His rude thing, his rude part.”
- Later, she gave the following evidence:
“[ANSWER]: First I was in choir.
[ANSWER]: And then I asked the person who was in charge of the choir if I could go to the toilet. And then he said yes. And then um any time, and then I went to the toilet. And then the man, the man that I was talking about, not the one who is in charge of the choir, the one who did me the bad things, yeah, he would follow me in the toilet. And then he will put his dick inside me.
[QUESTION]: Okay. And um can you tell me how he did that?
[ANSWER]: Will I get in trouble?
[QUESTION]: No. No you won’t get in trouble. I just need you to tell me in as much detail as possible. Okay. So you take your time and if you need a drink of water, you have a drink of water. Okay.
[ANSWER]: Yeah. And then he’ll put his thing inside me. And then um he, he would say that he’s going to give me twenty bucks.
[ANSWER]: And, and then um he um, and then he does it again. And then when his wife comes in he lets go of me. And then I go.
[QUESTION]: Okay. Now you said um, you said before that he put his dick inside me. Yeah. The, whereabouts inside you?
[QUESTION]: Okay. So you just pointed to the top of your jyn-, your jeans there. Now do you know any words for--
[QUESTION]: What’s that called?
[QUESTION]: Vagina. Okay. How long did he do that for?
[ANSWER]: I don’t know.
[QUESTION]: Don’t know. Okay. Tell me um, when that was happening what were you feeling at that time?
[ANSWER]: I was feeling like to hit him or something.
- This was count 1.
- C’s evidence was that the offence in count 2 was committed on the next day at the appellant’s house also. She was there for choir practice. C went into the kitchen to get a drink. The appellant hugged her while using his hands to touch her back and his hips moved forward. She gave the following evidence:
“[QUESTION]: Tell me everything about how he hugged you.
[ANSWER]: Um he would um, he would hug me like this--
[ANSWER]: And then um he, he would do this, that move.
[QUESTION]: Okay. Can, okay, were you standing up?
[QUESTION]: Okay. Do you want to stand up and show me what you mean? ‘Cause you’re, you’re moving in the chair.
[ANSWER]: He was doing this.
[QUESTION]: Okay. And what was touching you when he hugged you?
[ANSWER]: His hands was touching me.
[QUESTION]: Okay. And whereabouts were his hands touching you?
[ANSWER]: His hands were touching me here.
[QUESTION]: Around your back?
[QUESTION]: Okay. So when you said he was moving, what part of his body was moving when he was doing that? You, do you understand [INDISTINCT]?
[ANSWER]: His whole body. Because if someone moves, their whole body moves.
[ANSWER]: Yeah. So it’s--
[ANSWER]: His whole body.
[QUESTION]: Alright. So you just moved. And you said that his hips, was it his hips that were moving forward--
[QUESTION]: As well? Okay. Alright. The um, and then someone came. Did anything else happen? Did he touch you anywhere else?
- Afterwards, he offered her $20 and told her not to tell anyone. In cross-examination it was put to C that the appellant “never touched [her] in a sexual way” in the toilet. She also agreed that he had not touched her “in a sexual way” in the kitchen. However, in re-examination she was asked if she knew that “sexual way” meant. She said that she did not know and she reaffirmed her evidence that the appellant had penetrated her with his penis in the toilet and that he had rubbed against her in the kitchen.
- Evidence was given by a member of the church congregation, Mr Mathias Nyasiro. He said that the appellant admitted to him that he had “slept with [C] twice” in his house. He said that a church pastor, Mr Jacques Makazanyo was present. Pastor Makazanyo gave evidence that he had never been present to hear any such confession.
- The other complainant, D, gave evidence that the appellant committed the offence at his home during choir practice. She had taken her two-year-old sister to the toilet and was holding her when the appellant accosted her in the corridor, which was empty, and hugged her while touching her vaginal area, rubbing her through her skirt. The complainant pushed him off and ran away, crying. The appellant’s daughter saw her crying and D told her what the appellant had done. She also told her sister and parents about a month later, as well as Mr Mathias Nyasiro.
- The appellant gave evidence. He denied committing the offences and he denied ever meeting with Pastor Makazanyo or Mr Nyasiro or confessing to sleeping with C. The appellant’s daughter denied ever seeing D in tears or being told that her father had indecently touched her.
- The appellant sought to support his ground of appeal by referring to what he submitted were inconsistencies in the evidence of the complainants.
- In relation to C, he submitted that C’s father gave evidence that his family was a member of the church congregation, and C was a member of the choir between 2011 and 2013, when they left that church. C gave evidence that the offences were committed in the month of June or July when she was either nine or 10. C turned nine on 29 November 2012. The appellant submitted that this raises a doubt about when the offences were committed.
- There is nothing in this point. The indictment charged that the offences were committed on a date unknown between 27 February 2011 and 21 December 2013. This covers the period during which D was a member of the choir and is consistent with her recollection that she was either nine or 10 when the offences were committed.
- The appellant also seeks to demonstrate an uncertainty in C’s evidence about the sequence of events in the toilet concerning count 1. In her s 93A statement C said that the appellant entered without knocking and grabbed her from behind around the tummy. She said the lock on the toilet door did not work. In cross-examination, counsel probed for greater detail and she got it. No inconsistency was identified and certainly nothing was identified in the complainant’s evidence which might justify a conclusion that the jury ought not have concluded that the appellant was guilty on count 1. In relation to count 2, it is true that in cross-examination counsel obtained a positive answer to the proposition that “he never got to physically touch you”. Later, as has been discussed, she also accepted that the appellant had not touched her “in a sexual way” while then admitting that she did not know what “sexual way” meant. Having regard to the clarity of the complainant’s description of the event to police accompanied, it seems, by a physical demonstration of the act, it was open to the jury to conclude that the complainant’s difficulties with language rendered those particular denials of offending in cross-examination of little moment.
- It was open to the jury to reject the appellant’s evidence, as it must have done. As Mr Nardone submitted, when the jury was considering the appellant’s credibility, they might have taken into account the appellant’s wholly implausible assertion that, over the course of the relevant years, he never had an opportunity to be alone with the girls. Defence counsel and the learned trial judge brought to the jury’s attention the inconsistencies that are now relied upon. To convict, the jury must have disbelieved the appellant and must have found that the complainant’s evidence was honest and reliable in its essential respects. In my opinion, it was open to the jury to do so.
- In oral argument the appellant submitted on his own behalf that there were certain audio recordings that were not put in evidence but, had they been tendered, would have helped his case. He admitted during the hearing that these recordings were in the possession of his legal representatives at the trial who, after considering them, decided not to use them. There can be no miscarriage of justice as the result of a deliberate and considered decision not to use the recordings as evidence, unless something more was shown. There was nothing more.
- I would dismiss the appeal.
Application 11 of 2020
- The appellant also applied for leave to appeal his sentences imposed for the offences on both indictments but, as the outline concedes, that application was dependent entirely upon succeeding in his appeal against conviction. Leave to appeal must be refused.
- MULLINS JA: I agree with Sofronoff P.
- BRADLEY J: I agree with Sofronoff P.
 SKA v The Queen (2011) 243 CLR 400 at - per French CJ, Gummow and Kiefel JJ; R v Baden-Clay (2016) 258 CLR 308 at - per French CJ, Kiefel, Bell, Keane and Gaudron JJ; Pell v The Queen (2020) ALJR 394 at  per the Court.
- Published Case Name:
R v Nibigira
- Shortened Case Name:
R v Nibigira
 QCA 125
Sofronoff P, Mullins JA, Bradley J
08 Jun 2021