R v JAC[2021] QCA 168

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  In 2013 the appellant was married to the complainant’s mother.  They had a number of children, but the complainant, who was the eldest child, was a stepdaughter of the appellant.  She was then about 11 years old.
2. [2]
   The complainant shared a bed with one of the younger sisters, in a room of their own.  On two occasions, separated by several weeks, the complainant said the appellant came into her room, got on her bed and sexually assaulted her.  The complainant said she was able to identify that it was the appellant because of his distinctive smell.
3. [3]
   Arising out of her complaints about those occurrences the appellant was charged with two counts:

   1. (a)
      Count 1 – indecent treatment of a child under 16, and under 12; and
   2. (b)
      Count 2 – rape.
4. [4]
   After a trial he was convicted on each count.  He now challenges those convictions on two grounds.  Ground 1 is that the convictions are unreasonable and unsupported by the evidence.  Ground 2, added on the hearing of the appeal before this Court, is that there was a miscarriage of justice in that the trial judge failed to direct the jury as to the limited way the evidence of the appellant’s drug use could be used.
5. [5]
   I also note that an application for leave to appeal against the sentence imposed was abandoned on the hearing of the appeal.

Evidence at the trial

6. [6]
   The evidence at the trial came from only three witnesses.  First there was the complainant, whose evidence was given in the form of a police interview tendered under s 93A of the Evidence Act 1977 (Qld), and pre-recorded oral evidence pursuant to s 21AK of that Act.  Secondly, pre-complaint evidence was given by the complainant’s mother.  Thirdly, a friend of the mother also gave preliminary complaint evidence, which included a recording of the conversation with the complainant.

The complainant’s evidence

7. [7]
   The complainant was interviewed when she was about 15 years old.  She said that she was speaking to the police because her “stepfather was … touching me … inappropriately”.^[1]  She identified that as being in 2013, when she was in grade five.
8. [8]
   She gave a generic description at the start of the interview which was that the appellant would sneak into her room at night, come into her bed and “try to like take my clothes off and stuff”.^[2]  She explained that as she got older she started to realise that it was wrong.
9. [9]
   In the course of the interview she was asked to identify the occasions when the offending occurred.  She identified two, separated by several weeks.

First incident

10. [10]
    The complainant said that she was sharing a bedroom with her little sister.  One night the appellant came in and lay on top of her.  She described him trying to kiss her and putting his hands in her pants.^[3]
11. [11]
    She also referred to another occasion (the second incident) when he “started like doing inappropriate stuff to … my vagina with his … mouth”.^[4]
12. [12]
    Having explained that she could not remember the precise date she described the first incident as involving these elements:

    1. (a)
       she was asleep and so she did not see him sneak into her room; she was not aware of him until he “actually did come on top of me and like try to kiss me”;^[5]
    2. (b)
       she felt a heavy weight on her, felt something on her lips, and then realised that he was kissing her;^[6]
    3. (c)
       she explained that “at first I didn’t think it was like my step-dad … But then, I could smell him, ‘cause I know his smell”;^[7]
    4. (d)
       she lay still so that the appellant would think she was sleeping;
    5. (e)
       she described the feeling of having something heavy on her as being “getting squashed”^[8] and “then that’s when I like woke up, and then I smelt him”;^[9]
    6. (f)
       while the appellant was on her he tried to put his hand “down my pants”; in order to do so he unbuttoned the pyjamas she was wearing and “then tried to like finger me”;^[10]
    7. (g)
       having explained that she was wearing underwear and a bra, she said the appellant “put his hand down my underwear”, and then “started … rubbing my vagina”;^[11]
    8. (h)
       she was asked in more detail about what he was doing, and said he was using his finger to rub her vagina in circles;^[12]
    9. (i)
       asked to describe the place where he was rubbing she said it was “… past the place you get pubic hair, like in the vagina, … not in it, but …”;^[13]
    10. (j)
        when he finished the appellant left the bedroom and went to the bathroom; she just lay there on the bed, not asleep;^[14]
    11. (k)
        she said that in the morning she felt “weird, and then I thought maybe it was like I dreamt about it”;^[15]
    12. (l)
        asked to comment further as to the fact that she was not sure the next day if it was like a dream, she said:  “Yeah I didn’t … Know if it was real, ‘cause … that has never happened to me before, I’ve never heard of stuff like that … I’ve never seen stuff like that”;^[16] and
    13. (m)
        during the interview she made a drawing of the room and the bed and where she and her sister were placed in the bed.
13. [13]
    She was asked about the comments she made that identified that it was the appellant, and whether there was something distinctive she could smell.  Her answer was:^[17]

“COMP: Ah I don’t know, it’s … I know what the smell is now, because I think it was like marijuana.

…

COMP: ‘Cause he always, and then, ‘cause I didn’t know what it was then, ‘cause I [INDISTINCT] stunk.

…

COMP: But then um when my mum kicked him out, ‘cause she said he was doing drugs, then I went, oh, that’s what the smell is.

POLICE: Okay.  You recognised that smell?

COMP: Yeah, I recognise that smell.”

Second incident

14. [14]
    She said the second incident was in bed but this time she was awake because she could not get to sleep.  She heard the door open and saw something crawling to the bed.  The appellant then came onto the bed and took the blanket off.^[18]
15. [15]
    Her description of the second incident included these elements:

    1. (a)
       he pulled her shorts and underwear off and then the complainant “felt … something wet on my vagina”;^[19]
    2. (b)
       the appellant turned her over so she was on her back and not curled up; she tried to hold her legs together, tensing her whole body; however the appellant was able to pull them apart;^[20]
    3. (c)
       the complainant pretended to be asleep;
    4. (d)
       the appellant used his tongue to lick her vagina; she knew this was so because it was “… wet, and his face was … down there”;^[21]
    5. (e)
       she said the tongue was not on the top of the vagina but “actually inside”;^[22] and
    6. (f)
       after he finished the appellant put her clothes back on, then went to the bathroom and started brushing his teeth;^[23] she could hear him brushing his teeth, because the bathroom was across from the bedroom.^[24]
16. [16]
    She drew a distinction between the first and second incident.  Speaking of the first incident, the complainant said that the appellant’s fingers were just on the outside, and not inside.  She added “then the second time it was … inside”.^[25]
17. [17]
    The complainant said she had told her mother a few weeks prior to the interview:^[26]

“We were getting into a fight, and like I was angry, and then I started getting angry at her saying she was a bad mum.  And she’s like, how am I bad mum?  And then I’m like, you didn’t know?  And she’s like, what didn’t I know?  And I’m like, why I shut my door all the time.  And she’s like, tell me.  And then that’s when I ended up telling her.”

Complainant’s oral evidence

18. [18]
    In her evidence in chief the complainant said she was then 16 turning 17 and in grade 10.  She affirmed that everything she had told the police in the interview was true.
19. [19]
    In cross-examination the relevant matters dealt with were as follows:

    1. (a)
       it was put to her that her comment to the police about thinking she might have dreamt about it signified that she did, in fact, dream about it; the complainant disagreed;^[27]
    2. (b)
       she was asked about some variations in what she told the police in her initial account, and accepted that when she was talking to the police she had some trouble remembering the specific occasion of the first incident, namely the details; however, she denied that she was confused about what had happened, explaining that at the time she “didn’t know ... Exactly the date”, but she was not confused otherwise;^[28]
    3. (c)
       as the cross-examination proceeded she denied changing her version of events or that she was confused;^[29]
    4. (d)
       she agreed that when the events were happening she did not call out or reach out to her sister, but stayed stationary; she said she was pretending to sleep;^[30]
    5. (e)
       she was asked about the conversation with the mother’s friend, and specifically the friend asking her whether the appellant had “put anything inside you”, to which she had answered at the time “no”; she explained that she thought the friend was referring to a penis and that is why she answered the way she did;^[31]
    6. (f)
       she said that in the conversation with her mother’s friend she “wouldn’t go into detail” and could not remember what she had been asked;^[32]
    7. (g)
       she agreed that she had experienced difficulties at school, being suspended and expelled, and that her relationship with the appellant was not a particularly good one;^[33] and
    8. (h)
       however, she explained that the appellant did not get angry with her for things done at school, and her impression was that the appellant did not care for her mother, rather than not caring for her.^[34]
20. [20]
    Counsel for defence then asked these questions in cross-examination:^[35]

“… when you got in trouble for smoking cigarettes at school, was it just tobacco you were in trouble for smoking?---Yep.  We didn’t get in – we didn’t get in trouble.  We just ended up getting sent back to class.

Been in any trouble for smoking anything else?---No.

Ever seen anyone smoking marijuana?---Yes.

All right.  And is that one of your friends?---Just people from Runcorn who would be at the – where people smoke cigarettes.

Right.  So … you’ve been around people smoking marijuana?---Mmm.

That’s just the kind of – hanging around people smoking marijuana is just the kind of thing that your dad – that your step-dad didn’t like you doing, wasn’t it?---I’m pretty sure he smoked marijuana.  He smelt like it all the time.

And it was the kind of thing though that he didn’t approve of you hanging around people doing that, wasn’t it?---He didn’t know who I hung out with at school.

Right.  Did he not know because you kept these things behind his back?---Yeah.”

21. [21]
    Subsequently in cross-examination it was put to the complainant that the events of which she complained “just didn’t happen”.  In each case she disagreed.^[36]

Evidence of the mother

22. [22]
    The complainant’s mother explained the family relationships, and that the appellant was not the biological father of the complainant.  She identified various photographs of the house.  Then in respect of the conversation which she had with the complainant she said:

    1. (a)
       the complainant’s revelation had come while they were in the middle of an argument about the poor behaviour of the complainant, and the complainant answering back that the mother was a bad mother and did not protect her from the appellant;
    2. (b)
       the appellant had touched the complainant;
    3. (c)
       she called her friend to come over and the friend and the complainant then had a conversation;
    4. (d)
       the complainant told the friend that the appellant had touched her, and that he would “crawl into her room and put his hand underneath the blanket”.

Evidence of the mother’s friend

23. [23]
    The mother’s friend gave evidence that she was called over by the mother and had a conversation with the complainant.  The complainant told her that the appellant “used to crawl into my room, and he would touch me”.^[37]  The friend recorded part of the conversation with the complainant.^[38]

Admissions

24. [24]
    There were some short admissions made, consisting of the date of birth of the complainant, and the year she was enrolled in grade five, which was 2013.^[39]

Consideration – Ground 1

25. [25]
    Counsel for the appellant emphasised the following matters the cumulative effect of which, it was said, should have caused the jury to have had a doubt about the appellant’s guilt:

    1. (a)
       the sister was asleep next to her in the same bed on both occasions, and there was said to have been a minor struggle relating to the second incident; yet, the sister did not wake up, nor did the complainant attract her attention;
    2. (b)
       the manner in which the complaint arose, namely the complainant’s arguing with her mother;
    3. (c)
       the delay of some four years before any complaint was made; and
    4. (d)
       the statement that the complainant felt weird and thought “maybe it was like I dreamt about it”.
26. [26]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[40] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
27. [27]
    The role of the appellate court was recently restated in Pell v The Queen:^[41]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

28. [28]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[42]  As summarised by this Court recently in R v Sun,^[43] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[44] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[45]
29. [29]
    In R v Miller^[46] this Court recently emphasised the proper approach to an appeal where this ground is advanced:^[47]

“[16] 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’.

…

[18] 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. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

30. [30]
    As with many cases of sexual offending against young complainants, this case turned on the jury’s acceptance or rejection of the evidence of the complainant.  As counsel for the defence pointed out at the trial, there was no DNA evidence or independent corroboration of some other kind.  And, as was also pointed out in some detail to the jury, there was a delay in making complaint, and there were some inconsistencies in the complainant’s evidence.
31. [31]
    However, in my view, there were a number of matters which would have been readily apparent to the jury, and upon which they could rely in accepting the evidence of the complainant, and therefore being satisfied beyond reasonable doubt of the appellant’s guilt.
32. [32]
    First, the events occurred in 2013 when the complainant was in grade five, and therefore about 11 years old.  About four years passed between when the events occurred and when she was interviewed by the police.  By that time she was in grade nine.  The difference is that she was about 11 years old at the time of the events, and about 15 years old or so at the time of the interview.  Given the passage of time, and her youth, the jury could easily reason that there might be matters which had become blurred with the passage of time or matters of detail that might be difficult to recall.  Notwithstanding that, the jury were presented with an account that had a deal of precision and consistency.  The complainant only ever identified that there were two occasions, several weeks apart, where the appellant assaulted her.  The essential details did not vary as between the interview with police, and her oral evidence.
33. [33]
    Secondly, the delay was the subject of a specific direction to the jury, and otherwise standard directions were given as to the assessment of the complainant’s evidence.  No criticism is made of those directions.  That there was delay is not unusual, especially where the complainant said it was only as she got older that she came to realise what had happened was wrong.  Further, there was no suggestion that the conduct was repeated after the second incident.
34. [34]
    Thirdly, the account given by the complainant had some features about it which the jury could well have accepted as pointing to a credible and reliable account by a young witness.  For example, the complainant consistently said that:

    1. (a)
       on the first occasion the complainant was asleep and was woken up feeling a weight upon her, whereas on the second occasion she was awake and that is how she knew the appellant had crawled into the room;
    2. (b)
       she was able to identify that it was the appellant, not because he said anything or she saw him clearly, but by a distinctive aspect, namely the smell she associated with him;
    3. (c)
       the complainant never embellished what happened during the first incident, maintaining at all times that it extended only to touching on the outside of the vagina and not inside; by contrast, the complainant was steadfast in her description of the second incident, which involved the appellant’s tongue penetrating inside her vagina;
    4. (d)
       the complainant accepted that she had been troublesome in the years after the events, being suspended and expelled from school for rudeness and disruption; she also accepted the difficulties in her home relationships; but these were, of course, subsequent to the offending; and
    5. (e)
       the complainant readily accepted her difficulties of memory, though these were limited; principally, she accepted that she could not remember the exact dates of the events, but was firm in the fact that the events had happened as she said.
35. [35]
    Fourthly, there was evidence by way of preliminary complaint which offered some support.  It is true that the complainant first told her mother in the course of an argument when she accused her mother of being a bad mother for not having protected her from her stepfather (the appellant).  However, both to her mother and her mother’s friend, the complainant gave an account which contained corroborating details.  They were that it was the appellant who had offended, that he had crawled into her room, and that he had put his hand on her.  The mother also confirmed that she was first told in the course of the complainant being criticised for her poor behaviour.
36. [36]
    The mother’s friend gave an account which also corroborated the fact that it was the appellant, that he crawled into the room, and that he touched the complainant.  She had the presence of mind to make a recording of the conversation with the complainant.^[48]  The only discrepancy put to the complainant in relation to that conversation was that the friend had asked her if the appellant had put anything inside the complainant, and the complainant responded “no”.  However, the complainant explained her response saying that she thought the friend was referring to whether the appellant had put his penis inside her.  The jury may well have thought that was a natural confusion, especially as that question followed one where the friend asked if the appellant had put his private parts in her or near her, to which she replied “no”.
37. [37]
    Fifthly, the complainant gave evidence, in respect of the first incident, that after the appellant left the bedroom she lay awake on the bed.  Then she said that in the morning she felt “weird, and then I thought maybe it was like I dreamt about it”.^[49]  She was cross-examined about that and it was put to her that “it might be that what you told the police then was something you just dreamt about”.^[50]  The complainant denied that, saying she disagreed.
38. [38]
    At the trial, and on appeal, that statement was relied upon as suggesting that the complainant either dreamt the events, or made it up, or should be disbelieved about that event because of the doubt raised by her comment.  I respectfully disagree.  The complainant’s account was that she was woken up by the weight of the appellant on her, she pretended to be asleep and then after the event remained in the bed awake.  The jury could well accept that a young girl experiencing such a thing for the first time may well wonder about it in the morning, and even wonder whether she had dreamt the events.  That does nothing to dispel the fact that she told police she remembered the events, as she did in her oral evidence for the trial, and gave a consistent account with considerable detail.  It was open to the jury to accept her evidence as reflecting actual events, and not those that had been dreamt or made up.
39. [39]
    Sixthly, ultimately the case put in cross-examination and then to the jury in address, was that the events had never happened.  Though motive did not need to be established by the defence, some possibilities were raised including that the complainant did not get on with the appellant, her stepfather.  The jury were well placed to weigh what they thought about the complainant’s credibility and reliability, and in a way which this Court cannot replicate.  All of the questions raised in support of the ground relying on unreasonable verdict were quintessentially matters for the jury.
40. [40]
    Seventhly, it was said that the jury should have doubted the complainant’s evidence because her sister was in the same bed at both times, and in all the four years after the events there was no suggestion of a conversation with her about what happened.^[51]  That ignores the fact that the sister was three years old at the time, and sound asleep.  If the complainant did not feel she could raise it with her mother, why would she do so with a sister so young she was unlikely to remember anything, let alone understand what was being referred to.  Another suggestion advanced was that it was odd that the sister did not wake up if what the complainant said was true, particularly as to being rolled over and the effort to keep her legs closed.  That assumes there was movement of such a kind as to wake the sister up; that is not at all clear on the complainant’s evidence.  And, that the younger sister was only about three might explain why she did not wake up to any movement in the bed.
41. [41]
    This ground fails.

Consideration - ground 2

42. [42]
    The underlying complaint in respect of this ground is that the issue of the appellant’s marijuana use had been raised on the evidence and there was a risk that the jury might indulge in impermissible reasoning, in the absence of a direction, namely that (i) because the appellant used marijuana he might be more likely to have committed the offence than not; in other words a form of propensity reasoning; and (ii) the appellant was a person of bad character.^[52]
43. [43]
    I pause to note that the bad character point was not raised in the written outline or the proposed redirection,^[53] but only in oral address.
44. [44]
    In my respectful view, this ground must fail.  There are a number of reasons for that conclusion.
45. [45]
    First, the evidence concerning the appellant’s use of marijuana was relatively brief and not first-hand.  The evidence from the complainant was that she identified the appellant by his smell.^[54]  When that evidence was first given the complainant did not link the smell to marijuana or anything else.  It was only when questioned more closely by the police interviewer about whether there was something distinctive that she could smell, that she answered:

    1. (a)
       that she now knew what the smell was “because I think it was like marijuana”;^[55]
    2. (b)
       that she did not know what it was when the incidents happened;^[56]
    3. (c)
       that when her mother kicked the appellant out, “cause she said he was doing drugs, then I went, oh, that’s what the smell is”;^[57] and
    4. (d)
       that she was now able to recognise that smell.^[58]
46. [46]
    Secondly, the record of the police interview had been edited for the purpose of the trial, but that part was not excised.  It is not apparent that there was any application to do so.  In her oral evidence the complainant simply affirmed what she had told the police and went no further on that issue.  It was only in cross-examination that the issue was raised.^[59]  The questions were directed at whether the complainant might have smoked marijuana, or been associated with someone who had.  The complainant said that when she got into trouble for smoking it was just for tobacco,^[60] and then said that she had been around people where they were smoking marijuana.  Then this exchange occurred:^[61]

“That’s just the kind of – hanging around people smoking marijuana is just the kind of thing your dad – that your step-dad didn’t like you doing, wasn’t it?---I’m pretty sure he smoked marijuana.  He smelt like it all the time.

It was the kind of thing though that he didn’t approve of you hanging around people doing that, wasn’t it?---He didn’t know who I hung out with at school.

Right.  Did he not know because you kept these things behind his back?---Yeah.”

47. [47]
    The transcript of the complainant’s oral evidence was also edited for the purposes of the trial.  That passage was not excised, nor is it apparent that there was any application to do so.
48. [48]
    Thirdly, that evidence, taken at its highest, merely established that the appellant might have used marijuana.  That is such a long stretch from any connection with sexual offending that it is risible to suggest that a jury would indulge in impermissible propensity reasoning, i.e. that because he smoked marijuana he was more likely to sexually offend.
49. [49]
    Further, that the appellant might have used marijuana does not render him a person of bad character.  In any event the jury had been told to dismiss all feelings of sympathy or prejudice.^[62]  There is no reason to assume that they would not have obeyed those directions.  There was, in my view, no appreciable risk that the jury might think that if the appellant used marijuana he was someone of bad character.
50. [50]
    Fourthly, that conclusion is supported by the approach of both counsel and the trial judge.  Neither of the counsel referred to marijuana use in their addresses and no direction of the kind now proposed was sought.  It is easy to see why.  The evidence of the appellant’s marijuana use was indirect, as outlined above.  There was no connection between marijuana use, if any, by the appellant and the offending.  To have sought a redirection such as that now suggested would have been to remind the jury of something which ultimately did not matter.
51. [51]
    Finally, whilst not determinative, the fact that the direction now sought was not requested at the trial, nor any redirection to the like effect, is a factor when considering whether there has been a miscarriage of justice.
52. [52]
    In my view, it cannot be demonstrated that there has been a miscarriage of justice, let alone one that may have affected the appellant and deprived him of a fair chance of acquittal.^[63]
53. [53]
    This ground fails.

Conclusion

54. [54]
    As both grounds have failed, the appeal must be dismissed.  I propose the following order:

1. Appeal dismissed.

55. [55]
    LYONS SJA:  I agree with the reasons of Morrison JA and the order he proposes.
56. [56]
    NORTH J:  I agree with the reasons of Morrison JA and the order he proposes.