R v CPG[2021] QCA 149

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Mazza AJA and the order proposed by his Honour.
2. [2]
   MAZZA AJA:  This is an appeal against conviction.
3. [3]
   On 30 September 2020, after a short trial before a judge sitting without a jury,^[1] the appellant was convicted of four counts of rape, upon his six or seven year old grand-daughter, each count being a domestic violence offence contrary to s 349 and s 564(3A) of the Criminal Code.  The appellant appeals to this Court on a single ground that the verdicts were unreasonable or cannot be supported by the evidence:  s 668E(1) of the Code.
4. [4]
   For the following reasons I am of the opinion that the ground has not been made out and the appeal must be dismissed.

The indictment

5. [5]
   The indictment^[2] alleged four counts of rape being a domestic violence offence, each of which was said to have occurred at the same regional town on separate unknown dates between 28 August 2018 and 8 November 2018.  As particularised, each alleged act of rape was constituted by the appellant penetrating the complainant’s vulva and/or vagina with his finger.
6. [6]
   In each count, the Crown alleged an alternative offence being that the appellant unlawfully and indecently dealt with the complainant, a child under 16 years being a domestic violence offence where the child was under 12 years and the complainant was, to the appellant’s knowledge, his lineal descendent contrary to s 210(1)(a) and (4) of the Code.  As particularised, each alternative charge was constituted by the appellant touching the complainant’s vaginal area with his finger.

The issues in contest at the trial

7. [7]
   The real issues in contest at the trial were whether the Crown had proved beyond reasonable doubt that the appellant digitally penetrated the complainant’s vulva and/or vagina or alternatively that he touched her vaginal area.

Overview of the case

8. [8]
   The complainant was born in September 2011.  The appellant is her paternal grandfather.  The complainant’s mother is CM and her father is CF.  She has a brother, CB, who is a little older than her.
9. [9]
   On or about 29 August 2018, CF moved to Cairns to start a new job.  His family did not immediately follow him.  Until about 7 November 2018, the complainant lived with CM and CB in the house of her maternal grandparents, or in the house of her paternal grandparents (being the appellant and his wife, referred to as CGM), alternating, broadly speaking, between the two houses.
10. [10]
    The appellant’s property which is in a regional town is about two and a half acres.^[3]  On it was a house and a large shed.  The house, as the photographs which were tendered at the trial show, was small.  It comprised three bedrooms and had a kitchen and lounge room area.  The appellant and CGM slept in the main bedroom which runs off the kitchen.  It is possible to see into the main bedroom from the kitchen if the bedroom door is open.
11. [11]
    At all relevant times there were two televisions in the house; one in the lounge room and one in the main bedroom on a wall across from a double bed.
12. [12]
    Among the items kept in the large shed was a white Pajero vehicle.  It seems that the vehicle was not in a good mechanical state but it was driven on the property.
13. [13]
    The alleged offences were all said to have been committed on separate unknown dates between 28 August 2018 and 8 November 2018 at the appellant’s property.  Counts 1, 3 and 4 were alleged to have occurred in the main bedroom.  Count 2 was alleged to have occurred while the appellant was driving the white Pajero on the property with the complainant in the front passenger seat.  In each alleged offence, it was said that the appellant penetrated the complainant’s vagina with his finger.  The witnesses called by the Crown were the complainant, CB, CM, CF, CGM and the investigating police officer, Detective Senior Constable Ashton.
14. [14]
    The appellant testified in his defence.  In essence, he denied the offences or any inappropriate touching of the complainant.
15. [15]
    Each alleged offence relied upon the Crown establishing beyond reasonable doubt that the complainant’s testimony as to the act of digital penetration or touching was honest and reliable and that the appellant’s denial could not reasonably be true.  There was no corroboration of the acts said to constitute the offences.

The evidence in detail

16. [16]
    To differentiate between the counts at trial each of them was given a name derived from the general circumstances in which it was said to have been committed.  Count 1 was referred to as “robot movie”, Count 2 was referred to as “in the car”, Count 3 was referred to as “sorting the erasers” and Count 4 was “TV time”.

The complainant’s evidence

17. [17]
    The complainant’s evidence comprised an interview with police officers on 26 January 2019 pursuant to s 93A of the Evidence Act, and her pre-recorded evidence pursuant to s 21AK of the Evidence Act before Judge Rafter SC on 24 October 2019.
18. [18]
    In her police record of interview she was asked about what she had come to talk about to which she replied “my pop was touching my private part”.^[4]  Shortly afterwards she elaborated “he [the appellant] was putting his finger in my private part … And he was wiggling it around”.^[5]  The complainant said that the offending occurred when her father “moved up to Cairns”.^[6]  She reiterated that after her father went to Cairns the appellant kept on “putting his finger in my private part and kept wiggling his finger in there”.^[7]  She called her private parts her “‘giney”, a reference to her vagina and the surrounding area.
19. [19]
    The complainant said that she thought the appellant did this to her 20 times.^[8]  She told the interviewer that she was unable to remember the first and last time it happened.  However, in the course of the interview, the complainant gave a detailed account of the incidents upon which the four counts in the indictment were based.

Count 1 – robot movie

20. [20]
    The complainant told the interviewer that she recalled an occasion when she and the appellant were in the main bedroom together watching a DVD of a robot movie^[9] which she described as being “like a cartoon”.^[10]  She said that the appellant put his “finger in my, the part where I wee out of” for “only like for one minute”.^[11]  The complainant said that she told the appellant to “stop doing it”.^[12]  The complainant said that at the time, she and the appellant were on the bed, in effect, side by side.  The complainant recalled that at one point she left the room to get a water ice block^[13] and when she came back the appellant “started to do it”.^[14]  The complainant said that she was lying on her back.  At this point the bedroom door was closed.  She described the appellant’s act in this way:

“DETECTIVE:  Which, which---

COMPLAINANT:  Wiggled it,

DETECTIVE:  Wiggled it.  Which hand did he use?

COMPLAINANT:  He---

DETECTIVE:  So he, you think about sitting on the bed and pop sitting beside you, you think of which hand he used?

COMPLAINANT:  I think he used his right hand.

DETECTIVE:  His right hand?  And which finger?

COMPLAINANT:  Um, his pointer.

DETECTIVE:  His pointer?  Which is his pointer?

COMPLAINANT:  The—

DETECTIVE:  Can you hold it---

COMPLAINANT:  [INDISTINCT]---

DETECTIVE:  Can you hold it up?  That one?  And what did he do with his pointer finger?

COMPLAINANT:  He, he [INDISTINCT] put it in my ‘giney and then he wiggled it.

DETECTIVE:  Wiggled it?  Ha-, ha-, when you say put it in, how far?

COMPLAINANT:  Um, um, until that line.

DETECTIVE:  That line, that line there?

COMPLAINANT:  Yep.

DETECTIVE:  Yep.  What’s that line called on your hand?  Do you know?

COMPLAINANT:  Nope.”

21. [21]
    The complainant said that she thought that the incident occurred on a Saturday, some time in the morning and that at the time she was wearing a dress and aqua undies with love hearts on them.

Count 2 – “in the car”

22. [22]
    The complainant told the police about another incident which occurred while she and the appellant were driving around the yard in a car, being the white Pajero I referred to earlier.  The complainant said that the appellant used one hand to drive the vehicle and “his other hand to do it”.^[15]  When the interviewer asked her what she meant by “do it”, the complainant said “He [the appellant] put his finger in my ‘giney and he, and he wiggled his finger”.
23. [23]
    The complainant said that this incident occurred when her mother was at work.^[16]  She said that she was sitting in the front passenger seat.^[17]  She recalled that the appellant asked her and CB to go for a drive in the car but CB did not want to go.  The complainant said that the appellant asked her to move aside her shorts or skirt and while driving the vehicle he “put his finger in my ‘giney and wiggled” with the pointer finger of his hand.^[18]  The complainant told him “not to do it” but “he didn’t listen”.^[19]
24. [24]
    The interviewer asked the complainant “did you tell anyone after popsy did this?”.  The complainant answered “No” and added “Pop said to keep it a secret”.^[20]   Later in the interview the complainant said that each time the appellant penetrated her he told her to keep it a secret.

Count 3 – “sorting the erasers”

25. [25]
    The complainant recalled an occasion in which she asked CGM if she could sort out some erasers which were in the shape of fruit and animals.^[21]  Upon being told that she could, she took them into the main bedroom where she sat on the bed with the appellant.  She described what happened next in this way:^[22]

“And then we started sorting out the rubbers and um pop put his, told me to put my shirt or skirt to the side and um he put his finger in my ‘giney and, and wiggled it.”

26. [26]
    The complainant said that the appellant used the pointer finger of his left hand to penetrate her.  The penetration stopped when she told the appellant to stop.  The complainant said that at the time of the incident the door to the main bedroom was open and that her brother and CGM were in the kitchen.^[23]

Count 4 – “TV time”

27. [27]
    This incident occurred in the main bedroom while the complainant and the appellant were watching a cartoon on ABC Me called “All Hail King Julian”.^[24]  The complainant said that she and the appellant were sitting on the bed watching TV when the appellant “put his finger in my ‘giney and wiggled”.^[25]  The complainant said that the appellant used a finger on his right hand to penetrate her.
28. [28]
    The complainant was asked when she first told someone about what had occurred.  The complainant said that she did not tell anyone about what happened until she went to Cairns.  There she told her mother when she was getting ready for bed one night and later she told her father.  The complainant said that when she told her father she was not really able to describe what happened but she showed her father what the appellant had done.^[26]

The complainant’s pre-recorded evidence

29. [29]
    In examination in chief the complainant said that she had watched the police record of interview.  She confirmed that everything that she had told the police was the truth.^[27]
30. [30]
    Under cross-examination, the complainant:

    1. (a)
       agreed that when the alleged incidents occurred in the house, her nan and her brother would be either in the kitchen or at the dining room table “or places like that”;^[28]
    2. (b)
       agreed that in only one of the incidents which was said to have occurred in the house (count 1), the main bedroom door was shut;^[29]
    3. (c)
       agreed that in relation to the “in the car” incident the appellant drove past the house and that her grandmother was on the verandah saying something to the effect that food was ready;^[30]
    4. (d)
       confirmed that in respect of the “in the car” incident the appellant touched her while he was driving;^[31]
    5. (e)
       stated that in respect of count 3, that this occurred at a time when CB and CGM were in the lounge room.  This was inconsistent with what she had told the police.  The complainant agreed that she told the police that they were in the kitchen when this offence occurred.^[32]
    6. (f)
       agreed that when she told her father what the appellant had done to her, she denied that the appellant had put his finger inside her and said that the appellant had “rubbed and tickled it”;^[33]
    7. (g)
       denied propositions put to her by defence counsel to the effect that the appellant did not penetrate or touch her vagina.^[34]
31. [31]
    In re-examination about the testimony the subject of (f) above, the following exchange occurred:^[35]

“So, [the complainant], you told police that your Pop put his finger inside your ginny and wiggled it around?---Yeah.

And you’ve told – and then you just said to – [defence counsel], that you told your dad that he just touched your ginny?---Yeah

Which one actually happened?---The one that he put his finger and wiggled it in.

I’m sorry, what was that?---The one that he put his finger in my vagina and wiggled it.”

CB’s evidence

32. [32]
    Like the complainant, CB’s evidence comprised a police record of interview and a pre-recording.
33. [33]
    CB’s police record of interview took place on 5 February 2019.^[36]  At the time CB was nine years of age.
34. [34]
    CB was asked questions relevant to the surrounding circumstances of the alleged offences.
35. [35]
    Relevantly to count 2, CB confirmed that there was an occasion when the appellant and the complainant, along with a dog, took the white car (the Pajero) for a drive on the appellant’s property.  CB said that he saw the appellant and the complainant in the vehicle from the kitchen window.^[37]  CB said that he was asked to go for a drive with them but did not go because “it would’ve been boring”.^[38]  CB recalled that the vehicle was driven around the house and around the back of the big shed.^[39]
36. [36]
    Relevantly to counts 1 and 4, CB confirmed that there were two televisions in the house, one in the lounge room and the other in his grandparents’ bedroom.^[40]  It is clear from CB’s evidence that he and his sister did not share the same taste in television programs.  He said that he did not like watching the shows his sister preferred to watch.^[41]  He generally watched the programs he preferred on the TV in the lounge room which was bigger.^[42]  He said that the complainant watched TV “in nan and pop’s room most of the time”.^[43]  He said she did so because she could play with the appellant.^[44]  CB said that he recalled that the complainant had a DVD which featured “Cartoon type robots.^[45]  CB said that he did not see this DVD being played at the appellant’s house.  He said the DVD “was packed away in a box”.^[46]
37. [37]
    CB’s evidence was also pre-recorded before Judge Rafter SC on 24 October 2019.  In examination in chief he confirmed that everything he had told the officers in the police record of interview was true.
38. [38]
    Under brief cross-examination from defence counsel CB said that when the appellant and the complainant were in the car he watched them from the kitchen window and the verandah.^[47]  CB said that the appellant and his sister “weren’t in the car … for very long”.^[48]

Evidence of CM

39. [39]
    In examination in chief, CM testified as to the circumstances in which her daughter first complained to her about the appellant.  She recalled having a conversation with the complainant not long before Christmas 2018 in Cairns.  CM said that while she and her children were living at the appellant’s house the appellant would watch television in the main bedroom with the complainant and her brother.  However, because CB did not like to sit still for long he went out of the main bedroom to “the next room” where CGM had her computer desk.^[49]
40. [40]
    CM gave evidence of the complainant’s disclosure of the offending.  CM said that she had a conversation with the complainant in Cairns not long before Christmas 2018.  During the conversation the complainant said “You kiss me everywhere, Mum” to which CM said “Yes, but not on your private parts”.  CM continued “No one should touch your private parts because they’re your own”.  The complainant responded “Poppy does” elaborating “Poppy puts his finger there and tickles me”.^[50]  CM said that the complainant pointed to her vagina.^[51]
41. [41]
    CM said that the following day she spoke again to the complainant seeking more detail of what she had been told.  In the presence of CF, she had a second conversation with the complainant during which the complainant said that when she was touched her underpants were on, but gave no other detail about what the appellant did with his finger.^[52]
42. [42]
    CM testified that she took the complainant to see a counsellor in January 2019.  As a result the matter was reported to the police.^[53]
43. [43]
    In cross-examination CM said that the complainant had a pack of DVDs which were inside the house.  She accepted in cross-examination that some of the complainant’s DVDs were possibly in a box in the shed.^[54]

Evidence of CF

44. [44]
    CF said that he had two conversations with his daughter about the allegations, one before Christmas and one after Christmas 2018.
45. [45]
    In the first discussion the complainant said that she did not want to talk about what the appellant had done to her.  CF persisted.  The complainant told him that “Poppy touched me” that the appellant “touched – touched me down here” pointing to her vagina.  She told her father that the appellant had touched her inside her undies.  When he asked her what the appellant did she hopped up on her knees and said “Poppy said, ‘pull your undies aside’ and rubbed his finger down”.  CF said that the complainant rubbed her finger down her vagina.  CF asked “Did he touch you on the inside, or was it just on the outside?” to which the complainant responded “No, just on the outside; rub and tickle, Dad”.^[55]
46. [46]
    CF said that during the second conversation the complainant told her “Exactly the same thing”.  He said that when he tried to get more detail from her “She just shut down”.^[56]

Evidence of Detective Senior Constable Ashton

47. [47]
    It is unnecessary to describe the evidence given by Detective Ashton other than to observe that under cross-examination by defence counsel, Detective Ashton said that the appellant had no prior convictions for any sexual offences against children.^[57]

Evidence of CGM

48. [48]
    Relevantly to count 2, CGM testified that she recalled an occasion when the appellant and the complainant went for a drive on the property in the white Pajero.  She said that she had just cooked the children’s lunch and that the appellant agreed to take the complainant for a drive while it was cooling.  CGM said that she saw the vehicle drive around the property for about “three or four minutes or something”.^[58]
49. [49]
    CGM confirmed that there were two televisions in the house, one in the main bedroom and one in the lounge room.  The effect of CGM’s evidence was that the complainant and the appellant were only alone in the main bedroom watching TV “if I went to the toilet or something, but not any other time, as far as I know”.
50. [50]
    In cross-examination CGM said that she had never seen the complainant watch a robot movie in the house nor had she seen a DVD about robots.^[59]
51. [51]
    Relevantly to count 3, CGM confirmed in cross-examination that the only occasion that she had seen the complainant play with erasers was a week or so before she left for Cairns and that she did so at the table in the presence of CGM.^[60]
52. [52]
    CGM said that she did not notice any occasion when the appellant and the complainant were together in the main bedroom with the door shut.  She said that the children were “never allowed to shut their doors”.  CGM also testified that she had never seen the appellant behave inappropriately towards the complainant.^[61]

Evidence of the appellant

53. [53]
    The appellant testified that he turned 64 on 22 September 2020.  He said that he had been married to CGM for 45 years and had six children, one of whom is deceased.  He said that he had five grandchildren and two great-grandchildren.  He testified that he had been a professional driver all his life.^[62]
54. [54]
    In examination in chief the appellant said that there were occasions when he and the complainant watched TV together in his room, adding that CB “would be in the room there”.^[63]
55. [55]
    When asked by his counsel about the complainant’s statement to police that she watched a robot movie in the bedroom the appellant said “the robot movie was up in the boxes in the shed with their stuff, ready to go to Cairns”.^[64]  In answer to a question from defence counsel he added “All the ones she had with her were Barbie and Frozen [DVDs]”.
56. [56]
    Relevantly to count 3, the appellant said that the box of erasers were only allowed on the kitchen table and were never allowed in the main bedroom.
57. [57]
    With respect to count 2, the appellant agreed that he took the complainant for a drive in the white Pajero on one occasion.  He said that she sat in the front passenger seat.  He said he drove the vehicle around the property for “about two minutes”.  The appellant testified that the vehicle was “rough” to drive and that it was necessary for him to hold onto the steering wheel with both hands in order to drive it.^[65]
58. [58]
    The appellant denied touching the complainant while in the car and denied touching the complainant inappropriately at any time including while they were watching TV in the main bedroom.^[66]
59. [59]
    Under cross-examination, the appellant confirmed that he and the complainant would watch TV together in the main bedroom, along with CB.  He said that they all watched the complainant’s Barbie and Frozen movies.  The prosecutor asked “And you say [CB] sat there and watched them the whole time?” to which the appellant responded “Yeah.  He was getting as sick of it as I was.  Yeah.”  The appellant reiterated that CB stayed in the room, although he “Might’ve went out a couple of minutes to the toilet and that sort of thing”.^[67]  When it was put to him that CB was not really the sort of child who would watch Barbie and Frozen movies, the appellant said “Yeah, he would.  Yeah.”^[68]  The prosecutor asked the appellant if there were occasions when he was alone with the complainant to which the appellant replied “there would be occasions we were by ourselves for a few minutes, yeah”.^[69]
60. [60]
    Later in cross-examination the appellant conceded “There might’ve been about two times that she [the complainant] was in by me – with me by ourself … And it wouldn’t have been for very long”.^[70]  The prosecutor returned to the topic of the kinds of TV shows CB liked to watch.  The appellant accepted that CB’s interests were “a little bit different” to the complainant’s, but CB did watch the complainant’s movies in the main bedroom with his sister.^[71]
61. [61]
    With respect to the “in the car” incident the appellant said that on the occasion he drove with the complainant he did so at a speed of about five to 10 kilometres per hour “if that”.^[72]
62. [62]
    The prosecutor asked the appellant about the robot movie.  He said that the robot movie was in a box in the shed.  The appellant said that he had never seen the robot movie and that he had “never known that she had a robot movie”.  When asked by the prosecutor how he knew the movie was in the shed, the appellant responded because CB “said it was in the shed”.^[73]
63. [63]
    Towards the end of the prosecutor’s cross-examination of the appellant the following exchange took place:^[74]

“And, in fact – so you accept there are times you’re alone with [the complainant] in your bedroom?  We’re back to this again?  You keep going over … Can you just answer the question, please?  There would be occasional times, yes, we would be alone.  You’re starting to annoy me now.”

64. [64]
    The appellant denied that he had digitally penetrated the complainant’s vagina.  He denied telling the complainant to keep it a secret.^[75]

Reasons for decision

65. [65]
    Kefford DCJ delivered her written reasons for decision on 30 September 2020.^[76]
66. [66]
    Her Honour correctly set out the principles of law that she was required to apply including the onus and standard of proof, and the need to separately consider the charges.^[77]  She observed that while the appellant had elected to give evidence, the burden of proof had not shifted to him.  Her Honour correctly set out the elements of the offences.  Her Honour acknowledged that the Crown case largely rested on an assessment of credibility and reliability of the complainant’s evidence.  She stated that the only issues in contest in the trial were whether the acts alleged occurred and, if so, whether there was penetration.
67. [67]
    Her Honour said that the issues for determination were not to be resolved by choosing between the complainant’s evidence and that of the defendant.  She said:^[78]

“The prosecution case depends upon me accepting that the evidence of the complainant was true and accurate beyond reasonable doubt despite the sworn evidence by the defendant.”

68. [68]
    Her Honour gave a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507).
69. [69]
    Her Honour then dealt with the appellant’s evidence.
70. [70]
    At the outset she acknowledged that the appellant was a person of otherwise good character and that this was a matter relevant to the question of his guilt.^[79]
71. [71]
    Her Honour rejected defence counsel’s submission that the appellant was “upfront and honest about his interactions with the complainant”.^[80]  Her Honour found that despite the appellant’s good character the appellant’s evidence was not credible and reliable and should be set to one side^[81] for four reasons, being:

    1. she did not accept his evidence that when he and the complainant watched television in the main bedroom, CB was also present.  Her Honour said that the evidence given by the appellant on this point was inconsistent with the evidence of CB in his police record of interview.  Her Honour found that CB presented as a “frank” witness.  CB said that he mainly watched television in the lounge room and that he did not really like watching the shows that the complainant liked to watch.  Her Honour observed that CB said that his favourite show on television was cricket and that he did not watch the complainant’s movies including one called “Sweet Dreams” which he described as “a girl one” and “It sucks”.  In substance, her Honour found that the appellant’s evidence that CB was present in the room while they watched the complainant’s Barbie and Frozen movies, was contradicted by CB;
    2. her Honour found that the appellant’s evidence about the robot movie changed in a way which caused her concerns about the credibility and reliability of the appellant’s evidence generally.^[82]  Her Honour referred to the cross-examination of the appellant which I summarised at [62].  She said that the appellant seemed eager to provide evidence based on the matters that were said by others of which he had no personal knowledge in order to demonstrate the falsity of the complainant’s account;^[83]
    3. her Honour found, in substance, that during cross-examination the appellant accepted that he spent time with the complainant alone in the main bedroom watching TV for longer periods than he had initially stated;
    4. relevantly to count 2, it seemed implausible that someone with the appellant’s driving experience could not drive the Pajero at five to 10 kilometres per hour with only one hand on the steering wheel, even allowing for the wobbly steering he described.^[84]
72. [72]
    Her Honour concluded her analysis of the appellant’s evidence as follows:^[85]

“I accept the prosecution’s submission that the defendant’s evidence in general was not compelling.  It was internally inconsistent.  His version of events changed during cross-examination when it appeared he realised the lack of realism in his account.  I do not accept his evidence, nor does it cause me to doubt the complainant’s evidence.  As such, it is appropriate that I set it to one side and consider the balance of the evidence.”

73. [73]
    Her Honour accurately summarised the evidence given by the Crown witnesses.  It is unnecessary to refer to that summary other than that her Honour noted:

    1. (a)
       a number of things were not suggested to the complainant in cross-examination, including:

       1. the appellant did not watch movies alone with her in the main bedroom, or that CGM or CB were always with them when she did;
       2. the complainant never played with erasers in the appellant’s bedroom and in fact was not allowed to; and
       3. the complainant never watched a robot movie at the appellant’s home.
    2. (b)
       it was not suggested to CB in cross-examination that:^[86]

       1. he was wrong about his observations of the appellant watching movies with the complainant in the main bedroom or that he would watch the complainant’s movies in the bedroom;
       2. he or CGM were always in the main bedroom when the appellant and the complainant watched the complainant’s movies; or
       3. prior to his police interview he knew about the complaints which his sister had made against the appellant or the circumstances surrounding them.^[87]
74. [74]
    Her Honour correctly characterised the evidence of the complainant’s parents as evidence of preliminary complaint evidence.  She acknowledged that this evidence did not constitute proof of what actually happened but could only be used as a matter relevant to the complainant’s credibility.^[88]
75. [75]
    Defence counsel argued at trial that there was an inconsistency between what the complainant told her father the appellant had done to her “No, just on the outside; rub and tickle, Dad” and her testimony to the effect that the appellant had inserted his finger into her vagina.  Her Honour noted that the complainant was not asked to accept that both statements could not be true, nor was she asked to explain what she thought “inside” meant.  The complainant was also not asked to explain what she meant by the statements she made to her father.^[89]
76. [76]
    Her Honour found, assuming that there was an inconsistency, that the inconsistency did not cause her to doubt the credibility of the complainant’s evidence, particularly because in re-examination when she was asked what “actually happened” she said that the appellant inserted his finger in her vagina and wiggled it.^[90]
77. [77]
    Her Honour dealt with the defence counsel’s submissions about the complainant’s evidence in relation to each of the offences in considerable detail.  It is unnecessary to repeat this analysis.^[91]  It is enough to say that none of the matters raised on behalf of the appellant caused her to have a reasonable doubt about the allegations or the truthfulness of the complainant’s evidence in relation to any of the counts.^[92]
78. [78]
    Her Honour concluded her reasons for decision by making findings about the complainant’s evidence and in particular as to her presentation.^[93]  Her Honour found that the complainant presented as:

    1. (a)
       careful and considered;
    2. (b)
       “a child commensurate with her age”;
    3. (c)
       a person who was relaying her actual memories of events and that her evidence included details which would be unlikely to come from a young girl unless the offences had happened to her.  For example, the description the complainant gave about the appellant rubbing the inside of her “‘giney” with his “pointy finger” and her demonstration of pulling her skirt and underwear to the side for this to occur;
    4. (d)
       a person who did not guess her answers and that her description of what occurred was rich in detail and was cogent;
    5. (e)
       a person who was not malicious, defensive or confused;
    6. (f)
       reliable in her evidence as to when they stayed at the appellant’s home;
    7. (g)
       reliable in her evidence as to the surrounding circumstances of the offending.
79. [79]
    Her Honour concluded her reasons by stating that she had been persuaded beyond reasonable doubt that the appellant penetrated the complainant’s vulva or vagina with his finger on each of the four occasions described by her.  Accordingly, she found the appellant guilty of each of the four counts of rape.^[94]

Legal Principles

80. [80]
    Section 615B(1) of the Code provides that in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.  Section 615C(1) of the Code states that in a trial by a judge siting without a jury, the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and any finding or verdict of the jury has, for all purposes, the same effect as a finding or verdict of a jury.
81. [81]
    Section 668E(1) of the Code provides that this Court shall allow an appeal against conviction if it is of the opinion that:

    1. the verdict of the jury should be set aside on the ground that it is unreasonable or can not be supported having regard to the evidence; or
    2. the judgment should be set aside on the ground of wrong decision on any question of law; or
    3. on any ground whatsoever there was a miscarriage of justice.
82. [82]
    The well-established principles applicable to a ground that a guilty verdict is unreasonable or cannot be supported by the evidence were stated by the High Court in M v The Queen (1994) 181 CLR 487, 493, 494.  These principles have been affirmed and elaborated upon in a number of subsequent cases including Morris v The Queen (1987) 163 CLR 454; R v Nguyen (2010) 242 CLR 491; SKA v The Queen (2011) 243 CLR 400; R v Baden-Clay (2016) 258 CLR 308 and Pell v The Queen (2020) 94 ALJR 394.
83. [83]
    In Fleming v The Queen^[95] and later in Filippou v The Queen,^[96] the High Court considered the nature of a criminal appeal from a judge sitting without a jury in the context of s 133 of the Criminal Procedure Act 1986 (NSW) and s 5(1) of the Criminal Appeal Act 1912 (NSW).  Section 615C(1) and s 668E(1) of the Code are, in substance, no different to the New South Wales provisions.
84. [84]
    Applying the reasoning in Filippou, the effect of s 615C(1) of the Code is to equate a judge’s finding of guilt to that of a jury and for the purposes of an appeal against conviction under s 668E(1) a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
85. [85]
    It follows then that a finding of guilt by a judge sitting without a jury is not to be disturbed under the first limb of s 668E(1) of the Code, if it was open to the judge to be satisfied beyond reasonable doubt that the accused was guilty.
86. [86]
    I respectfully agree with the following statement by McMurdo JA in R v FAZ identifying the task to be undertaken by an appellate court called on to decide whether a verdict of guilty by a judge sitting without a jury is unreasonable or cannot be supported by the evidence:^[97]

“[28] This appeal is advanced upon the first of the grounds specified in s 668E(1). Where the ultimate finding of guilt is by a judge, that finding must be set aside on the same principle on which a jury’s verdict of guilt must be set aside, namely that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the defendant was guilty.

[29] Where the trial has been by a judge alone, the reasoning of the trial judge will be, or should be, apparent. It will be known whether the ultimate conclusion of guilt was based upon certain intermediate findings of fact, and whether the judge was persuaded to accept certain evidence. Nevertheless, for this ground of appeal, the Court’s task is not to identify any error in particular findings of fact or otherwise in the reasoning of the trial judge; its task is to consider the whole of the evidence and decide whether it was open to the judge to be satisfied beyond reasonable doubt that the defendant was guilty.”

87. [87]
    As with a jury’s verdict of guilty, it is a serious step to set aside a verdict of guilty by a judge sitting without a jury.  Further, trial by the appellate court is not to be substituted for trial by a judge sitting without a jury.
88. [88]
    The question for the appellate court is whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, it is nevertheless dangerous in the circumstances to permit the decision to stand.  The appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence.  In undertaking this task, the court must weigh the whole of the evidence and in particular the competing evidence.  The appellate court must not disregard or discount either the consideration that the judge is entrusted with the primary responsibility of determining guilt or innocence or the consideration that the tribunal of fact has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.
89. [89]
    As with a jury’s finding of guilt, the finding of guilt of a judge sitting without a jury is not to be disturbed under the first limb of s 668E(1) unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all one way, or the judge is so misdirected himself or herself on a matter of law as to result in miscarriage of justice.  However, it is to be borne steadily in mind that as with a jury’s verdict, in most cases a doubt experienced by an appellate court will be a doubt which a judge sitting without a jury should have experienced.  As the plurality stated in Filippou, adopting and adapting the language of M v The Queen:^[98]

“It is only where a [judge’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 … 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 [judge], 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.”^[99]

The appellant’s submissions

90. [90]
    Counsel for the appellant, Mr Jones, submitted that it was not open to the trial judge in any of the counts to be satisfied beyond reasonable doubt that the appellant either digitally penetrated the complainant’s vulva or vagina or he had touched the complainant’s vaginal area with his finger.
91. [91]
    Mr Jones submitted that this Court should set aside the convictions for rape and should not substitute a verdict of guilty for the alternative offence of indecent dealing:  s 668F of the Code.
92. [92]
    It was submitted on behalf of the appellant that the guilty verdicts were unreasonable or could not be supported on the evidence having regard to the following factors:

    1. In respect of each of counts 1, 3 and 4, CB and CGM were inside the house and in close proximity to the main bedroom and would, had the offences been committed as described by the complainant, have seen the offences being committed or heard the complainant telling the appellant “no”.  Neither CB or CGM testified that they saw or heard anything untoward occurring in the main bedroom.
    2. Neither CB or CGM saw anything untoward occur while watching the vehicle being driven by the appellant.  It was submitted on behalf of the appellant that if he had digitally penetrated the complainant’s vulva or vagina in the circumstances described by her, CB or CGM would have seen or heard “something”.
    3. On the complainant’s testimony, all of the offences which were alleged to have occurred in the house, but particularly counts 3 and 4, were committed in implausibly brazen circumstances.  In respect of counts 3 and 4 counsel emphasised that on the complainant’s account, the door to the main bedroom was open at the relevant time and had CB or CGM seen what the appellant was doing to the complainant, he could not have credibly proffered an innocent explanation for his conduct.
    4. As to whether it was open to the trial judge to find that the appellant had digitally penetrated the complainant’s vulva or vagina as opposed to touched the vagina without penetrating it, Mr Jones submitted that the complainant’s evidence that she had been digitally penetrated by the appellant was inconsistent and therefore not reliable having regard to the preliminary complaint evidence given by her parents.  It was submitted, in effect, that if the appellant was to be convicted of an offence, it could only be, on each count, the alternative.

The respondent’s submissions

93. [93]
    Counsel for the respondent, Mr Nardone, submitted in essence, that the none of the matters raised by the appellant, either in his written or oral submissions, showed that it was not open to the trial judge to find the appellant guilty of each count of rape.
94. [94]
    In his oral submissions, Mr Nardone submitted that the complainant had consistently said in her accounts to the police and in her pre-recorded evidence that the appellant digitally penetrated her vulva or vagina.  He submitted that if there was any inconsistency in what she said to her parents it was, in the circumstances, able to be rationally and satisfactorily explained.  Accordingly, it was open to her Honour to conclude, as she did, that the Crown had proved that the appellant had digitally penetrated the complainant as alleged in each count of rape and that there was no occasion for this Court to consider the alternative counts in the indictment.

Analysis

95. [95]
    The key witnesses in the trial were the complainant and the appellant.  The appellant could not be convicted of any offence unless the Crown proved beyond reasonable doubt, having regard to all of the evidence relevant to that count, that the complainant was an honest and reliable witness and that the appellant’s denial was untrue.
96. [96]
    I begin by observing that the trial judge had the primary responsibility of determining guilt and innocence and that she had a very distinct advantage over this court in that she saw and heard the complainant (in the police record of interview and the pre-recorded evidence) and the appellant testify.  It is apparent from her Honour’s reasons^[100] that the complainant presented as “careful”, “considered”, “a child commensurate with her age”, “a person who was relaying her actual memories of events”, who “did not guess at answers” and who “did not present as malicious, defensive or confused”.  It is clear that her Honour regarded these features of the complainant’s evidence as indicating that it was both honest and reliable.  In this Court, it has not been suggested that her Honour in any way misused this advantage.
97. [97]
    I then turn to Mr Jones’ submissions.
98. [98]
    Each of counts 1, 3 and 4 was committed in the main bedroom of the appellant’s house at a time when CB and CGM were at home and in close proximity.  Neither CB or CGM saw or heard anything untoward going on in the main bedroom between the appellant and complainant.
99. [99]
    In my opinion, the evidence of CB and CGM’s proximity and the apparent brazenness of the offending does not make the complainant’s evidence implausible or give rise to a reasonable doubt about its plausibility.
100. [100]
     The alleged offending in the main bedroom, particularly the offending the subject of each of counts 3 and 4, was risky if not brazen.  However, it is the experience of this Court that offences of this kind commonly occur in the family home when other, no doubt, unsuspecting family members are nearby.
101. [101]
     Further, in the present case, evidence was adduced to the effect that CB was often watching television in the lounge room and that CGM was often engaged in activities in the kitchen or was on her computer.
102. [102]
     Moreover, the circumstances in which the alleged digital penetration offences occurred in the main bedroom did not involve the removal of the appellant’s or the complainant’s clothing and occurred while they were engaging in the apparently innocent activity of watching television.  Had the appellant perceived that someone was nearby or about to enter the main bedroom there is no reason why the appellant could not have desisted from what he was doing without detection or creating suspicion.
103. [103]
     As to the submission that CB or CGM did not hear anything untoward occurring in the main bedroom, I am mindful that the complainant testified to the effect that on each occasion she told the appellant to stop what he was doing and that he told her not to tell anyone what had occurred.  I also note that her Honour made the observation that the complainant was softly spoken.  Counts 1 and 4 occurred when the TV was on.  Assuming that CB and CGM were within earshot of the main bedroom, it does not follow that they were bound to have heard anything said between the appellant and the complainant connected with the alleged offences.
104. [104]
     As to count 2, the prospects of detection were, having regard to the offence being allegedly committed in a motor vehicle being driven around the appellant’s property, rather less than in the counts which were said to have occurred in the main bedroom.  Count 2 occurred in a closed vehicle which was being driven around the property.  The photographs of the exterior and interior of the Pajero vehicle (exhibits 11 and 12) show that it would have been difficult for someone outside the car to see any act of digital penetration which occurred while the car was being driven by the appellant with the complainant in the passenger seat.  It is not at all clear how it could have been possible for CB or CGM to see what was happening inside the Pajero from inside the house or on its verandah.  Further, while CB and CGM saw the appellant and the complainant in the vehicle as it was being driven, neither testified to the effect that they watched the vehicle for the whole of the time.  This left open the distinct possibility that the offence occurred when they were not watching the Pajero.
105. [105]
     In my opinion, it was open to her Honour to conclude that the appellant was able to digitally penetrate the complainant’s vulva and vagina while driving the vehicle.
106. [106]
     The white Pajero was also being driven by the appellant very slowly at a speed of about five or 10 kilometres per hour.  Even accepting that the vehicle was difficult to steer, it may reasonably be thought as far fetched to suggest that an experienced professional driver such as the appellant would not have been able to drive the Pajero with one hand at low speed.  To my mind, there is nothing about the circumstances of count 2 which make its commission inherently implausible or give rise to a reasonable doubt about its plausibility.
107. [107]
     In respect of count 3, given the evidence of the appellant to the effect that the complainant was not allowed to play with the erasers in the main bedroom, I have considered whether it was open to her Honour to conclude that the act of digital penetration of the complainant’s vulva and vagina the subject of this count, said to have been committed while she was playing with the erasers in the main bedroom, occurred.  I make three observations about the evidence in respect of this account.  First, the complainant was not asked in cross-examination whether she had been forbidden to play with the erasers other than in the kitchen.  Second, CGM was not asked in cross-examination if she prohibited the complainant from using the erasers other than in the kitchen.  Third, for the reasons given below it was open to her Honour to disbelieve the appellant.
108. [108]
     I now turn to whether there was any inconsistency between the complainant’s evidence about the nature of the appellant’s touching.  As Mr Nardone pointed out, the complainant was consistent in her police record of interview and her pre-recorded evidence about what the appellant had done on each occasion.  In substance the complainant said the appellant inserted his finger into her vulva or vagina and wiggled it around.  If any inconsistency arises as to the nature of the touching, it does so as a result of the preliminary complaint evidence of CM and CF.
109. [109]
     I have set out at paragraph [39] above the conversation the complainant had with her mother.  I do not regard the complainant’s statement “Poppy puts his finger there (pointing to her vaginal area) and tickles me” as being inconsistent with the appellant’s accounts to the effect that the appellant had digitally penetrated her vulva or vagina.
110. [110]
     The statements made by the complainant to her father (see paragraphs [44]-[46] above) may be understood as indicating that the appellant rubbed but did not penetrate the complainant’s vulva or vagina.
111. [111]
     In my opinion, if the statements made to CF are understood as being inconsistent, it was not an inconsistency which leads to the conclusion that it was not open for her Honour to conclude that the appellant digitally penetrated the complainant’s vulva or vagina.
112. [112]
     In considering the conversations the complainant had with her father, it must be kept in mind that, according to the evidence of CF, the complainant did not want to talk to him about what the appellant had done to her.  It is understandable, given the complainant’s young age and the personal and embarrassing content of the conversations which were, after all, about her paternal grandfather, that the complainant would be reluctant to talk to her father about the matter.  Further, the difficulties and embarrassment in telling her father about what had happened would reasonably be thought to have been exacerbated by her father’s request to show him what the appellant had done to her.  In the end it was for her Honour to decide what weight she gave any inconsistency.  In my opinion, it was well open to her Honour to conclude that any inconsistency between the complainant’s testimony and what she said to her parents did not give rise to a reasonable doubt as to whether the appellant had digitally penetrated the complainant or touched her vagina.
113. [113]
     Little emphasis was given in the oral submissions to the appellant’s exculpatory evidence.  In my opinion there were good reasons to reject the appellant’s exculpatory evidence notwithstanding that he is a man of prior good character.  On my assessment of the trial record it was open to her Honour, for the reasons that she gave, to reject the appellant’s denials.  It appears from the record that the appellant displayed reluctance to accept that there were times when he was alone with the appellant in the house and therefore had the opportunity to commit the offence.  It was also open to find that the appellant’s credibility was damaged by the evidence of CB as to the frequency in which he would watch his younger sister’s movies in the main bedroom.  As the trial judge found, CB did not seem to be the kind of boy who would sit and watch movies he considered to be more appropriate for girls and were boring.  The appellant’s denials in this regard appear unconvincing.  While the appellant was a person of prior good character and recognising that this was a matter relevant to questions of credibility and whether he did the acts alleged, the evidence adduced at trial, when considered as a whole, established guilt beyond reasonable doubt.  In my opinion, it was well open to her Honour to reject the appellant’s denials and put them to one side.

Conclusion

114. [114]
     On my examination of the trial record, it was, in my opinion well open to her Honour to conclude that the appellant was guilty of each of the four counts of rape on the indictment.  Accordingly, her Honour was not required to consider the alternative charge in each count.  In my view, there is no significant possibility that the appellant has been convicted of an offence of which he is innocent.  None of the verdicts are unreasonable or cannot be supported having regard to the evidence.  They should not be set aside.  The appeal should be dismissed.

Orders

115. [115]
     The order I would make is:

1. Appeal dismissed.

116. [116]
     DAVIS J:  I agree that the appeal should be dismissed for the reasons given by Mazza AJA.