R v Kelly[2021] QCA 134

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 12 June 2020, his Honour Judge Barlow QC, sitting without a jury, found the appellant guilty of one count of rape.  The trial was heard on 2 and 3 June 2020.  His Honour published his reasons on 12 June 2020.^[1]  On 19 June 2020, the appellant was sentenced to three years’ imprisonment with seven days of pre‑sentence custody from 12 to 18 June 2020 declared as time already served under that sentence.  His Honour did not fix a parole eligibility date.
2. [2]
   The appellant appeals against his conviction on the ground that it is unsafe and unsatisfactory.  He also applies for leave to appeal against his sentence on the ground that it is manifestly excessive in all the circumstances.  The appellant represented himself before this Court but was represented by counsel both at trial and at sentence.

Appeal against conviction

3. [3]
   In R v Harris,^[2] this Court recently considered the principles that govern an appeal against conviction in a judge alone trial on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence.  Having considered the High Court’s decisions in Fleming v The Queen^[3] and Filippou v The Queen,^[4] Fraser JA (with whom Sofronoff P and North J agreed) concluded that each of the three grounds of appeal in s 668E(1) of the Criminal Code is capable of application to the verdict of a judge alone.  His Honour stated:

“Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.”^[5]

4. [4]
   That exercise “must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen …”.^[6]
5. [5]
   This Court has also recently emphasised the limitations of an appeal against a guilty verdict on a question of fact:

“In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’. It is necessary to demonstrate that such features appear in the evidence ‘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’.”^[7]

6. [6]
   The Court further stated:

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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.”^[8]

(a) Examination of the evidence

(i) The complainant’s evidence

7. [7]
   When the offence occurred, the complainant was between six and nine years of age.  Her evidence consisted of a video recording of a police interview conducted on 14 September 2017 which was admissible under s 93A of the Evidence Act 1977 (Qld) and a video recording of her evidence in court on 21 November 2019 pursuant to, and in accordance with, s 21AK.
8. [8]
   The complainant told police that she had spoken to the chaplain at her school on the Tuesday prior to the interview.  She said that she told the chaplain that the appellant had been touching her body.^[9]  She said that, because her mother was working at the time, the appellant and his wife would collect her (and, on occasions, her brother) from school.  The appellant and his wife would care for her at their residence until her mother collected her.^[10]
9. [9]
   The complainant’s description of the offending during the police interview was as follows.  The offending occurred in the loungeroom of the appellant’s house.  The appellant was watching television on a reclining chair.  Her two brothers were at the house but were asleep and her mother was still at work.  The appellant’s wife was cooking dinner in the kitchen.    The complainant approached the appellant, sat on his lap and cuddled with him.  The appellant then put his hand inside the complainant’s long pants.  He told her that he used to do this when she was little.  The appellant put his hand through the side of her pants and down her underwear.  His hand was touching her vagina and rubbing inside her “private part”.^[11]  The appellant had used his “pointing finger” when rubbing inside her vagina.^[12]  She did not experience any pain when the appellant’s finger was inside her vagina.^[13]  When this happened, the complainant jumped down from the recliner and went into one of the bedrooms where she waited for her mother to arrive.
10. [10]
    The complainant’s recollection was that she thought she had told her grandmother, but that she may have only said to her grandmother that she was scared of the appellant.^[14]
11. [11]
    The complainant told police that, following the offending, she had further contact with the appellant but attempted to avoid him on those occasions.^[15]  She said that, sometime after the offending, the complainant’s mother and the appellant had an argument and that this was the last occasion on which the complainant had contact with the appellant.^[16]
12. [12]
    During cross-examination on 21 November 2019, the complainant’s evidence was that she commenced to live full-time with her father on 12 June 2015.  Before that date, she spent equal time with her parents, who were separated.  When she was in her father’s full-time care, she did not visit the appellant and his wife.^[17]  The complainant accepted that her mother commenced working in October/November 2014.  She agreed that, rather than be collected from school, she and her brother would catch a bus to the YMCA where the appellant’s wife would pick them up.
13. [13]
    The complainant recalled speaking to the school chaplain on 12 September 2017.  She said that she had been seeing the school chaplain for about 18 months.  She accepted that, in her conversation on 12 September 2017, she had told the school chaplain that she was uncomfortable about meeting her mother’s new boyfriend because past boyfriends had been violent which caused her to feel unsafe.^[18]  The complainant recalled telling the school chaplain that the appellant “touched my private parts”, but she did not recall telling the school chaplain that she told her grandmother about the incident.^[19]  The complainant recalled that her grandmother told her mother something, but it was not what the complainant had actually told the chaplain.^[20]
14. [14]
    The complainant accepted that, to the right-hand side of the recliner, there was a big doorway leading to the kitchen.  She also accepted that, if a person was standing at the stove or sink in the kitchen, they could see the recliner.  Likewise, she accepted that a person sitting at some of the chairs at the kitchen table would have been able to see the recliner.^[21]
15. [15]
    The complainant agreed in cross-examination that this incident was the first and only time she recalled anything happening with the appellant.^[22]  She does not recall the appellant making any threats to her or telling her to keep the incident a secret.^[23]

(ii) Other Crown evidence

16. [16]
    At the trial, the Crown called the complainant’s mother and father, the school chaplain, and the school principal.
17. [17]
    The complainant’s mother said that she first became aware of the incident after being informed of it by the complainant’s father.^[24]  She recalled that the appellant and his wife assisted in looking after her children while she was working.  Her evidence was that the children would stay at the appellant’s house before and after school on Monday to Friday and sometimes over the weekend.  She said that either herself or the complainant’s grandmother would pick the children up from the appellant’s house in the evening.
18. [18]
    The complainant’s mother recalled having an argument with the appellant, during which he suggested to her that she was a neglectful mother.  She testified that she has not spoken to the appellant or his wife since that argument.^[25]
19. [19]
    The complainant’s father’s evidence was that he and the complainant’s mother had separated in late 2007 and that, thereafter, they had shared custody of the complainant.  He said that he thought the complainant commenced school in 2012.
20. [20]
    He recalled that he met the appellant and his wife when he would pick up the complainant from their house, usually on a Friday when there was a changeover of custody.  He recalled that, if the appellant was at home, the appellant would normally be in the kitchen or the loungeroom sitting on a recliner in the corner near the kitchen doorway.  His recollection was that he commenced full-time care of the complainant in July 2015.  His evidence was that he first became aware of the offending when he received a phone call from the complainant’s school principal.  He recalled that, following that phone call, which was two days prior to the complainant’s police interview, he had a conversation with the complainant during which she gestured towards her groin and stated that the appellant had touched her there.^[26]
21. [21]
    The school chaplain’s evidence was as follows.  Prior to their conversation on 12 September 2017, she had been seeing the complainant weekly for approximately 12 months.  During that conversation, the complainant informed the chaplain that she was worried about going to visit her mother because of her mother’s new boyfriend.  The complainant stated that her mother’s boyfriends had been abusive and violent in the past.  The chaplain told the complainant that it was important that, if someone made her feel uncomfortable, to use the “No, Go, Tell model”.^[27]  It was at this stage of the conversation that the complainant told the chaplain that once, while she was at the appellant’s house approximately 12 months earlier, the appellant had touched her on her private parts.  The complainant did not go into any detail but was “very visibly distressed”.^[28]  She informed the chaplain that, when the appellant had stopped touching her, she ran to a spare bedroom, shut herself in there and waited until her grandmother came to pick her up.  The complainant told the chaplain that she had told her grandmother about what happened, and she thought that her grandmother had told her mother but not her father.  After this conversation, the chaplain arranged for the complainant to speak to the school principal.
22. [22]
    The school principal’s evidence was that, when he spoke to the complainant, she told him that the appellant had touched her private parts.  He recalled that she stated that she had left the room and gone into another room and stayed there until her grandmother picked her up.  The principal’s recollection was that the complainant told him that she had mentioned this to her grandmother who, in turn, had told her mother.  As to when the incident occurred, the principal recounted that the complainant told him that it was a year or a few years ago.  He agreed that, after this conversation with the complainant, he contacted the complainant’s father.^[29]

(iii) The appellant

23. [23]
    The appellant neither gave nor called evidence.

(b) It was open to the learned trial judge to be satisfied beyond reasonable doubt of the appellant’s guilt

24. [24]
    At the conclusion of the evidence at trial, both counsel for the Crown and the appellant tendered written submissions.  Counsel for the appellant identified the issue for the learned trial judge as being whether the complainant’s testimony could be accepted as both honest and reliable beyond reasonable doubt.  It was emphasised that the complainant’s evidence was not corroborated by any scientific evidence, medical evidence, admissions, or any forms of conduct that would amount to evidence displaying a consciousness of guilt.  It was submitted that the preliminary complaint evidence was relatively vague and lacked detail.  Counsel emphasised that there was a large doorway between the loungeroom where the recliner chair was situated and the kitchen, and that the recliner chair was visible from the kitchen table, as well as from the stove and the sink.  Accordingly, it was submitted, it did not make sense that the appellant would commit the offence in circumstances described by the complainant as there was a significant risk of being seen by his wife.  Counsel also addressed the issue of penetration, submitting that there was no subjective evidence to bolster the truthfulness of the complainant’s account, for example, by describing that penetration “hurt” or describing how it felt.  Counsel further submitted that none of the preliminary complaint evidence included an allegation of penetration and nor was there any evidence of the appellant seeking to groom the complainant or any attempt by the appellant to ensure secrecy.
25. [25]
    The learned trial judge, in considering the evidence, gave careful and thorough reasons which addressed each of these submissions.
26. [26]
    As to the proximity of the kitchen to the recliner chair in the loungeroom, his Honour considered that the appellant could have done what the complainant described without it being obvious.  His Honour did not find that the layout of the recliner and the kitchen casted doubt on the complainant’s evidence of the event.^[30]
27. [27]
    As to the evidence of penetration, his Honour found the complainant’s evidence that the appellant’s index finger went inside her vagina to be cogent and credible.  His Honour referred to the answers given by the complainant to police:

“In the complainant’s interview with police about the incident, having said several times that the defendant touched her inside her clothes, she volunteered that ‘he put his hand through the side [of my pants] and then down my undies’; when asked what his hand was touching, she said her vagina; when asked what his hand was doing when it was touching her vagina, she said, ‘Like, just rubbing inside’ and when asked inside what, she said, ‘My private part.’  Later, when she was asked what he was using to rub inside her private part, she said, ‘His pointing finger’. She was then asked if his pointing finger was inside her vagina or outside. She said, ‘Inside’. She was then asked if it hurt and she said, ‘No.’”^[31]

28. [28]
    His Honour also gave careful consideration to the appellant’s comment made to the complainant that he used to “do it [to the complainant] when [she] was younger”.  His Honour considered that this was a very unusual comment for a young complainant to invent or to believe was said if it was not.  His Honour made a specific finding that the appellant made that statement.^[32]
29. [29]
    As to when the incident occurred, his Honour did not regard the complainant’s evidence about when the incident happened as being inconsistent with other evidence that his Honour accepted, nor with the complainant’s preliminary complaints.^[33]
30. [30]
    As to there being no grooming or secrecy, his Honour accepted that there was no evidence that the incident was anything other than a one-off event.^[34]  His Honour observed:

“… the absence of any suggestion by the defendant to the complainant that she keep the event a secret are factors that I must weigh seriously in the balance in assessing the credibility of the complainant’s evidence, as they tend to make the incident less likely than if there had been evidence of other behaviour of a grooming or sexual nature between them, or that the defendant had specifically persuaded her to keep the event secret.”^[35]

31. [31]
    As noted by his Honour, however, the complainant did not give the appellant much opportunity to suggest that she keep the event a secret because she jumped off his lap very soon after he started rubbing her vagina and she kept away from him as much as possible until her grandmother arrived.
32. [32]
    Taking all those matters into account, his Honour found that the complainant was a truthful and reliable witness.  This finding was open to his Honour on the evidence outlined above and ultimately led to his Honour being satisfied beyond reasonable doubt that the appellant slid his hand into the complainant’s pants and underpants and used his index finger to rub the inside of the complainant’s vagina.^[36]
33. [33]
    In his written submissions to this Court, the appellant asserts that the complainant’s mother has used the complainant to, in effect, “get back” at him.  Such a motivation was not put to the mother in cross-examination.  Further, it was the mother’s evidence that she did not become aware of the incident until the complainant’s father informed her of it.  The appellant also asserts that the police advised the Crown witnesses what to say.  This assertion is unfounded.
34. [34]
    As observed above, the primary issue at trial was whether the complainant’s testimony could be accepted as both honest and reliable beyond reasonable doubt.  Such a finding was open on the evidence.  Although the complainant initially stated to police that she thought she had informed her grandmother of the incident, this does not appear to have been the case.  The complainant’s evidence ultimately was that she may not have informed her grandmother of the incident but that she may have told her grandmother that she was scared of the appellant.
35. [35]
    The context in which the complainant told the chaplain of the incident and the chaplain’s observation that the complainant was “very visibly distressed” lends weight to the complainant’s recollection.  While her preliminary complaints to the chaplain, the school principal and her father lacked detail, they were nonetheless generally consistent with her more detailed version given to police.  Further, the complainant adhered to this version when cross-examined.  The trial judge had the advantage of viewing both video recordings in assessing the complainant’s evidence.
36. [36]
    The appeal against conviction should be dismissed.

Leave to appeal against sentence

37. [37]
    The appellant has not advanced any oral or written submissions as to why the sentence imposed by the learned trial judge was manifestly excessive.  The appellant was approximately 67 years of age at the time of the alleged offending and 71 years of age at the time of sentence.  He had no prior criminal history. 
38. [38]
    In arriving at the sentence imposed, his Honour took into account that the appellant was convicted after a trial.  Both the complainant’s mother and father provided victim impact statements which were tendered.  His Honour noted that the offending had a serious impact on the complainant’s life.  His Honour took into account the appellant’s demonstrated commitment to being a worthwhile member of the community and his good work history.
39. [39]
    The sentence imposed was well within the sentencing range for this type of offending.  His Honour was referred to several comparatives^[37] which, as correctly submitted by the respondent, demonstrate that the sentence imposed is not manifestly excessive.^[38]

Disposition

1.  Appeal dismissed.

2.  Application for leave to appeal against sentence refused.