R v Bryce[2021] QCA 145

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
2. [2]
   MORRISON JA:  I agree with the reasons of McMurdo JA and the proposed order.
3. [3]
   McMURDO JA:  The appellant was convicted by a jury of four sexual offences, committed against a 13 year old boy.  There were three offences of indecent dealing, and one offence of unlawful carnal knowledge with the complainant.
4. [4]
   The appellant appeals against each conviction upon two grounds, and, upon a further ground, against the conviction for the offence of unlawful carnal knowledge.

The evidence at the trial

5. [5]
   The appellant and the complainant’s mother had been friends for some years prior to the events in question.  The two women had met through a single mother’s Facebook group, and they had children of around the same age.  Both families had a child with special needs; the complainant has Asperger’s syndrome.
6. [6]
   At a point in time when the complainant’s relationship with his mother was deteriorating, he decided to move to the appellant’s house.  He lived with her from 22 February to 18 March 2017.  He refused his mother’s requests to return home during this period, and resisted attempts by his maternal grandmother to persuade him to move to her house.  The complainant’s mother became desperate for her son to return home after hearing that he had shared the appellant’s bed.  She then contacted the police who took no action at the time.  When the complainant’s father found out that his son was no longer living with his mother, he too went to see the complainant at the appellant’s house and unsuccessfully tried to persuade him to leave.
7. [7]
   A couple of days after that, the complainant’s father and paternal grandfather approached the complainant at a soccer game and tried to take him home.  There was then an incident in which the complainant threatened to take his life, the ambulance was called and the complainant was transported to a local hospital, where he underwent assessment before being discharged to the care of his mother some hours later.  The complainant did not return to the appellant’s house after this incident.
8. [8]
   The complainant’s mother then gained access to the complainant’s mobile telephone, and identified a number of text messages sent by the appellant to him, including one where the appellant had sent a photograph of herself in a G-string with the caption “sweet dreams”.  That photograph had been sent a couple of weeks before the complainant had moved to the appellant’s house.  The telephone was handed to police, who downloaded its contents, including messages between the complainant and the appellant which were tendered at the trial.
9. [9]
   The complainant was first interviewed by police on 22 March 2017, which was four days after he had returned to live with his mother.  The police were investigating whether there had been some sexual contact between the complainant and the appellant, the suspicion of which had been caused, in part, by the text messages and the photograph.  During this interview, however, the complainant was adamant that there had been no sexual contact, and said that his only physical interaction with the appellant had been by hugging.
10. [10]
    Within weeks of this interview, two school friends of the complainant received text messages from the appellant, who asked them about the complainant.  The complainant was told by his friends of the messages, and not soon afterwards, he told each of them that there had been sexual contact between him and the appellant.  He told one of the friends, M, that the appellant “seduced him into rape”.  He told the other friend, J, that the appellant had raped him.  Encouraged by his friends, on 16 May 2017, the complainant told his mother that he had been seduced by the appellant, and he made a similar disclosure to his father later on the same day.  He said to his mother that he could not believe that he had “lost [his] virginity to that thing”.
11. [11]
    On the following day, the complainant was again interviewed by police, when he told police that the appellant had seduced him into “sleeping with her”.  He described how they had been sitting together watching a movie, when they began to playfully compete for a blanket, in the course of which the appellant pulled the complainant’s pants down and sucked his penis.  The appellant asked him to “finger her”, and he then put his fingers into her vagina.  They both then fell asleep.  He told police that on the following day, when he was playing Xbox, the appellant began playing with his penis and asked him to follow her into her room.  The complainant lay on the bed on his back, and the appellant sat on his penis and was holding down his arms.  The complainant said that “her vagina was over my penis” and that “she bounced on it”.  In cross-examination, the complainant said that he had an erection at this time, and that the intercourse continued for 10 to 15 minutes, before it was ended by the appellant’s son knocking on the door.  The complainant rejected the cross-examiner’s suggestion that there had been no intercourse.
12. [12]
    The complainant testified that he had not had sex before this occasion, but knew about it from what he had been told by his mother and also by the appellant, as well as from the internet and movies.  He explained that he did not disclose the offending in the first interview by police, because he was protecting the appellant and did not want to hurt her children, having been told by the appellant not to tell anyone of what had occurred.
13. [13]
    A week later, the appellant was interviewed by police.  In that interview, the recording of which was played to the jury, the appellant denied touching the complainant and having carnal knowledge with him.  The appellant did not call or give evidence at the trial.

The first ground of appeal

14. [14]
    The first ground of appeal is that the evidence of the complainant’s disclosures to his two school friends and his parents was inadmissible, and that its admission resulted in a miscarriage of justice.  The evidence was admitted, in each case, as evidence of a preliminary complaint under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).  However, it is argued, these were not preliminary complaints as defined in s 4A(6), because they were made after the complainant’s first formal witness statement was given to police.  That is, they were made after his first interview with police on 22 March 2017, in which he denied any sexual contact with the appellant.
15. [15]
    Section 4A applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.^[1]  By sub-section (2), evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence is admissible, regardless of when the preliminary complaint was made.  However, evidence of this kind is received on a limited basis.  As Thomas JA said in R v LSS:^[2]

“Its effect is confined to showing consistency of statement or conduct, the evidence having itself no probative value or capacity to prove the truth in what is said (or written).”^[3]

16. [16]
    Sub-section 4A(6) is as follows:

“(6) In this section—

complaint includes a disclosure.

preliminary complaint means any complaint other than—

1. (a)
   the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

2. (b)
   a complaint made after the complaint mentioned in paragraph (a).”

17. [17]
    The appellant’s argument is that the recording of the complainant’s first interview by police constituted a statement within paragraph (a) of that definition, so that any complaint which was made after that interview was excluded, by paragraph (b).  It is argued that the subject matter of the interview was whether sexual offending by the appellant against the complainant had occurred, and that there was then an anticipated criminal proceeding because of the existence of some evidence, including the text messages and photograph, which had enlivened the suspicions of the police officers.
18. [18]
    The respondent’s argument appears to accept that, from this first interview by police, there was a formal witness statement to a police officer given in anticipation of a criminal proceeding.  However, it is argued for the respondent, that the anticipated proceeding could not have been in relation to count 4, which was the alleged offence of having unlawful carnal knowledge with the complainant.  That was because there was then no evidence held by police of that offence.  In contrast, there was a text message about the appellant having “touched the dick of a 13 year old”.  In this way, the respondent’s argument seeks to liken the present case to R v DBA.^[4]  In DBA a preliminary complaint in relation to counts 3 and 4 on an indictment was held admissible because, although it was made after the first formal witness statement to police in relation to counts 1 and 2, the offending in relation to counts 3 and 4 occurred at a distinct time and the complaint was “about an offence which was different and entirely separate from the offence the subject of the witness statement”.^[5]
19. [19]
    In my view, the evidence of the complainant’s disclosures to his friends and parents was admissible under s 4A, but for a different reason than that argued for the respondent.  The word “complaint” in s 4A is defined to include a disclosure.  Possibly, there might be a disclosure of a sexual offence without there being, at the same time, a complaint about it, in the ordinary sense of that word.  In that way, the definition can be understood as enlarging the ordinary meaning of the word “complaint”.  It is that enlarged meaning of the word “complaint” which must then be considered in the definition of “preliminary complaint”, and it is clear that a “preliminary complaint” must involve a “complaint” in that sense.  This appears from the first line of the definition of preliminary complaint, as well as from the description, in paragraph (b), of a witness statement to a police officer being “the complaint mentioned in paragraph (a)”.  Consequently, there must be a complaint in the ordinary sense, or at least a disclosure, of the facts of the alleged commission of a sexual offence within the witness statement referred to in paragraph (a), for the exception to apply.
20. [20]
    In the present case, there was no complaint, in any relevant sense, of any offending, in what was said to police in the first interview.  The recording of that interview was not “the complainant’s first formal witness statement” within paragraph (a), and the complaints which were made to the complainant’s friends and parents were not excluded by paragraph (b).  The evidence was correctly admitted, as evidence of preliminary complaints, and the first ground of appeal fails.

The second ground of appeal

21. [21]
    The appellant’s second ground is based upon the record of the police interview of the appellant which was played to the jury.  It had been agreed that a certain passage should be excised as irrelevant, but inadvertently, it was included.  It is unnecessary to set out the passage here.  In a transcript of that recording, it would occupy less than a page.  The subject matter of which the appellant was then speaking was a series of comments said to have been by the complainant’s mother, to the appellant and others in their circle, “that her son had a very large penis for his age.”  As the appellant related this to police, she commented that it was “a bit odd that [the mother] had brought that up about her own child”, and that she had done so “at least five or six times”.
22. [22]
    The appellant’s argument is that the inclusion of this part of the interview was not only irrelevant, but prejudicial to the appellant, because there was a risk that the jury would improperly use it as evidence of a sexual interest by the appellant in the complainant.  It is argued that by the judge not discharging the jury, as she ought to have done, there was a miscarriage of justice.
23. [23]
    The inadvertent inclusion of this passage was realised relatively late in the trial.  The prosecutor raised the error with defence counsel on the fifth day of the trial, after each of them had addressed the jury.  The appellant’s counsel then made an application for the jury to be discharged.  The trial judge refused the application, because her Honour did not accept that the jury could misuse the evidence and that the directions which she intended to give, as to what constituted the evidence of sexual interest in the complainant, would confirm that this evidence could not be used for that purpose.  In the opinion of the trial judge, the evidence reflected poorly on the complainant’s mother, but not upon the appellant.
24. [24]
    In her summing up, the trial judge told the jury that the prosecution relied on evidence of certain text messages and photographs sent by the appellant to the complainant, as evidence that she had a sexual interest in him upon which she was prepared to act.  She identified the particular text messages and photographs for the jury.  She explained that this was circumstantial evidence, rather than direct evidence that sexual contact had occurred.  The trial judge distinguished those pieces of evidence from evidence of other text messages, which she described as “general background evidence of the relationship forming between the complainant and the [appellant] leading up to the commission of the alleged offences.”
25. [25]
    The trial judge did not specifically direct the jury to ignore the passage from the interview which had been wrongly included.  However she was not asked to do so, because, defence counsel agreed, that could serve to make something of the evidence which might not have occurred to the jury.
26. [26]
    The question here is whether there was a miscarriage of justice by the inclusion of this passage in the evidence.  In my conclusion, there was no miscarriage, because there was no prospect that the jury treated the evidence as probative of a sexual interest by the appellant in the complainant.  The statements about the complainant in this passage were ones which were said to have been made by the complainant’s mother, rather than by the appellant, and on the appellant’s account to police, she and her friends thought that the mother’s comments in this respect were “a bit odd”.  Further, the judge was correct not to highlight this irrelevant passage by a specific direction about it.  Her Honour’s directions, as to the evidence upon which the prosecution did rely to prove a sexual interest, made it clear to the jury that certain text messages and photographs were the only evidence which might be treated as probative of a sexual interest.
27. [27]
    The second ground of appeal fails.

The third ground of appeal

28. [28]
    The third ground of appeal is that the verdict of guilty, on the charge of unlawful carnal knowledge, was unreasonable or cannot be supported having regard to the evidence, mainly because there was very little evidence that penile penetration was in fact achieved.  To prove that the appellant had carnal knowledge with the complainant,^[6] the prosecutor had to prove that the complainant inserted his penis into the appellant’s vagina.
29. [29]
    In his second police interview on 17 May 2017, the complainant made statements that:

“she kind of seduced me into sleeping with her”;

“then the next day she took me into her room and held me down almost and sat on me in a sexual way”;

“she tricked me almost and took advantage of me into having sex with her”;

“she kind of held me down and sat on my penis and had intercourse”;

“well she sat on me and kind of was like holding my arms down almost”;

“her vagina was over my penis”;

“Your penis was inside her? Yeah”.

30. [30]
    In cross-examination, the complainant could not recall what the appellant was wearing when she took him into her bedroom, but said that she was naked by the time she got on top of him.  He said that he had an erection at the time, and was being held down by her putting her hands on his shoulders.  He said that it was the first time he had ever had intercourse.  When answered “how long did it take, this act of intercourse between you”, he answered “10 or 15 minutes”.  He said that the appellant was then making “moaning” noises.
31. [31]
    The appellant’s argument is that this evidence, going to the specific question of penetration, must be assessed in the context of the quality of the complainant’s evidence overall.  It is submitted that the appellant’s recollection was apparently poor in several respects.  He was unable to recall her tattoos, particularly a tattoo on her breast.  He did not explain when it was that the appellant came to be naked in her bedroom, and why he stayed in the room.  Nor, it is said, did he explain how his own clothing was moved or removed to allow intercourse to occur.  He did not explain how his penis was put inside the appellant’s vagina, or how he knew (or believed) that this was where his penis was.
32. [32]
    Further, it is submitted, there are a number of other circumstances which should have given rise to doubts in the minds of the jurors, such that the conviction, at least for this count, was unsafe.  There was a suggested delay in the complaint, the initial denial by the complainant of any wrongdoing, a lack of corroboration, and a lack of any supporting objective evidence such as medical records or forensic evidence of any kind.  There was also the evidence from one of his friends, J, of a preliminary complaint, in which she said that she had been told that the complainant had already informed his parents of the offending, which could not have been correct.
33. [33]
    In summary, the appellant’s argument suggests weaknesses in the complainant’s credibility which, combined with what is said to be poor evidence of penetration, required the jury to acquit on this count.  The evidence as a whole must be reviewed by this Court, to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, allowing special respect and legitimacy for the jury’s verdict.^[7]  It is the combined effect of these suggested weaknesses which must be considered, although they can only be discussed individually.
34. [34]
    In my opinion the evidence of penetration contained no significant weakness or ambiguity.  It was not so unlikely that a young teenage boy would have a sufficient awareness of what constituted sexual intercourse, that he would be able to give reliable evidence as to whether it occurred, although this was his first experience of it.
35. [35]
    His recollection of everything which occurred in the bedroom was not perfect, but nor was that something which significantly detracted from his testimony.  It is not surprising that he was unable to recall precisely when the appellant took her clothes off, or her tattoos.
36. [36]
    His initial denial of any sexual activity was relevant, but it is hardly unusual for a child, who has been sexually abused, at first to deny the abuse which is later disclosed.  His evidence gave a credible explanation for why he did so.  The lack of corroboration or any supporting documentary evidence, again, was relevant but not such as to indicate any particular reason to doubt the complainant’s account.  The recollection of J, that he told her that he had already informed his parents, may have been incorrect, in the jury’s view.
37. [37]
    In my conclusion it was open to the jury to convict.  The third ground of appeal fails.

Order

38. [38]
    I would order that the appeal be dismissed.