R v Iongi[2021] QCA 43

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of Burns J and agree with those reasons and the order his Honour proposes.
2. [2]
   McMURDO JA:  I agree with Burns J.
3. [3]
   BURNS J:  After a trial lasting three days in the District Court at Brisbane, the appellant was found guilty on 30 September 2019 of four counts of indecent treatment of a child under the age of 16 and under care.  He was sentenced to an effective head term of nine months imprisonment, suspended after serving four months.
4. [4]
   The appellant appeals against his convictions on the sole ground that the learned trial judge erred in directing the jury that there was evidence of distressed condition which, if accepted, was capable of corroborating the complainant’s account.

The Crown case

5. [5]
   Each of the offences in question was alleged to have occurred on the morning of 13 December 2017.  The complainant was then 12 years of age.  She and a friend of around the same age, TC, often stayed at each other’s home for sleepovers.  At the time of the offences, TC”s mother was in a relationship with the appellant and they resided together in a residential unit in Bracken Ridge.  The complainant rode her bicycle to the unit on the previous day and slept over.  Sometime after midnight, the appellant entered a bedroom where the complainant and TC were asleep in the same bed.  The complainant awoke and the appellant asked, “Why don’t you go downstairs and watch TV?” She said, “No”, and, with that, the appellant left the bedroom.  The complainant went back to sleep.
6. [6]
   A short time later, the appellant returned.  The complainant again awoke and felt the appellant squeeze her left breast (count 1).  Reacting to this, she moved closer to TC but the appellant slipped two of his fingers down the front of the waistband of her pyjama pants (count 2).  The complainant rolled onto her stomach in an attempt to “get him to stop”, but the appellant touched one of her buttocks through the outside of her pyjama pants (count 3).  She then moved even closer to TC and the appellant once again left the bedroom.
7. [7]
   Later that morning, after TCs mother had left the unit, the complainant told TC what the appellant had done.  Then at some point when the two girls were together watching television, the appellant walked downstairs and asked the complainant to come with him.  The complainant followed the appellant upstairs where he asked her for a hug.  She refused but he insisted, hugging and kissing her on the neck (count 4).  The complainant returned downstairs and told TC what just occurred.  She later rode home.
8. [8]
   The next day (14 December), the complainant again visited the unit, staying until after lunch before returning home.  That evening, TC relayed to her mother what the complainant had told her about the appellant the previous day.
9. [9]
   On 15 December, the complainant again visited the unit.  Whilst there, TC’s mother asked her whether anything had taken place with the appellant and recorded the conversation on her iPhone.  Later, the complainant returned home and told her mother what the appellant had done.  According to the evidence her mother gave at the trial, the complainant started off by saying that “she had something to tell” her and then “burst into tears and … was struggling to tell her what’d happened”.  She then gave an account consistent with her overall complaint.  Her mother then took her to a police station.
10. [10]
    The complainant and TC were separately interviewed by police later that day.  Both interviews were videorecorded and edited versions were played to the jury at the trial pursuant to s 93A of the Evidence Act 1977 (Qld).  The two children were later cross-examined on their accounts at a preliminary hearing conducted pursuant to s 21AK of the Evidence Act and, like their s 93A interviews, videorecordings of that evidence were played to the jury.
11. [11]
    The evidence comprising the Crown case included the s 93A interviews and s 21AK testimony of the complainant and TC as well as evidence from each of their mothers.  Amongst other exhibits, the recording made by TC’s mother on her iPhone was tendered and played.  Early on the morning of the second day, the Crown case closed and, when called on, the appellant elected not to give or to call evidence in his defence.

The evidence of distressed condition

12. [12]
    During TC’s s 93A interview, she was asked “what happened” when the complainant returned downstairs after the appellant hugged and kissed her.  In response, TC said that while the appellant was still upstairs she sat with the complainant on a two seater couch.  She said the complainant was “whispering what happened”.  There was then this series of questions and answers:

“Q: Sorry, I’m just, just writing this down. On the two seater couch. And what was her facial expression like? Like how do you think – –

A: When she like – –

Q: How would you describe – –

A: When she – –

Q: How she was feeling?

A: When she walked downstairs, she was like, looked scared, she was like this. She was like, she like looked shocked and like scared.

Q: Mm. And what about when she was telling you what had just happened upstairs?

A: She was just like, she just said it like, she was like, [the appellant] did this, blah, blah, blah, blah. She was like, she like was saying it to me like she was like shocked or like, I don’t know.”

13. [13]
    It was this evidence from TC to the effect that the complainant looked shocked and scared soon after the acts constituting count 4 took place that the appellant argued on appeal should not have been left to the jury as evidence capable of amounting to corroboration.  The complainant did not give evidence of any subjective feeling of distress or of displaying any sign of distress, and TC was not cross-examined at the s 21AK hearing about her observations although she did volunteer that she and the complainant were “talking in shock about what happened”.
14. [14]
    The evidence was admitted without objection, that is to say, there was no application by the defence to edit it from TC’s 93A interview.  Nor was there any objection to it being left to the jury as evidence capable of corroborating count 4.  In that regard, prior to the addresses of counsel, and in the absence of the jury, the prosecutor submitted that the evidence was “close enough in time” to attract a “distressed condition direction”.  On the other hand, the prosecutor did not submit that the evidence given by the complainant’s mother regarding her daughter’s distress when revealing what the appellant had done was in the same category because it was submitted to be “too far removed” and “really just part of the narrative”.  The issue was set aside to the following day at the request of the appellant’s counsel (who was not the appellant’s counsel on the hearing of this appeal) and, after considering the issue overnight, no objection was taken to the giving of directions along the lines submitted by the prosecutor.
15. [15]
    His Honour’s summing up then included these directions:

“Now, another specific legal issue that arises in this case has to do with what’s called distressed state evidence. Now, there are two pieces of evidence in this trial, which if you accept it as truthful and reliable, might disclose to you that [the complainant] was in a distressed state, and it’s a bit subtle, but you need to deal with the two pieces of evidence in a slightly different way. First, there was [TC’s] observations of [the complainant] when she came down the stairs after being called up there by [the appellant], and I think this might have been mentioned in one of your notes. [TC] said this:

When she walked downstairs, she was, like, looked scared, and she was like this, she was like this –

and then gestured

… she was, like, she looked shocked and scared.

And then a couple of lines later, she said something similar, you remember that. Now, first of all, it’s a matter for you as judges of fact, will you accept that evidence as to [the complainant’s] condition when she came down the stairs, and if you do, you then have to ask yourself, was the distressed condition that [TC] spoke of genuine or was she pretending? Was she putting on the condition of the distress? Was there another explanation for why she might have expressed – shown those feelings? It’s customary for judges to warn juries that you ought attach limited weight to distressed condition because it’s something that can be easily feigned, but if you find the distress was genuine, and you find that it happened as [TC] said, then you certainly may use it to support [the complainant’s] version in respect of count 4. Just be careful.

The second piece of evidence of distress, which you might find was exhibited by [the complainant], was when her mother gave evidence that [the complainant] was crying when she was talking to her mother in the – later on Friday. That evidence is not given on the basis that if you accept it and you accept the distress is genuine, you can use it to infer that the offending occurred or as evidence that tends to support that inference because it happens too long after the alleged acts by the [appellant] to be relied upon as support of [the complainant’s] evidence for that purpose. It’s not relevant to finding that the acts as alleged occurred. There are many innocent reasons there could be for that condition at the time. I comment and I remind you of the things I just said about distress can be feigned or there can be other reasons for it. However because that distress was expressed a couple of days or more than a couple of days after the events, it’s included as part of the narrative, it’s part of … [the complainant’s] mother’s account and it’s only included for that reason, not as evidence from which if you accept it, you could take it as evidence of the offending itself.” [Italicised words in original]

16. [16]
    The gesture to which the trial judge referred was described by the appellant’s counsel on the hearing of this appeal as “a facial expression with wide eyes”.
17. [17]
    The only other mention of this bracket of evidence came in the form of a comment from the trial judge when summarising the arguments of the prosecutor:

“… She told [TC] immediately about [the appellant’s] alleged upstairs behaviour. She presented as shocked to [TC], and she predicted [defence counsel’s] arguments that if those events occurred, [the complainant] should have left immediately and not come back either then or at a later date and she submitted to you that the responses of 12 year old girl should not be judged by adult standards, and I make this comment: it might be that although [the complainant] was shaken, she just wasn’t afraid of [the appellant]. Whether you think that, of course, is entirely a matter for you.”

Were TC’s observations capable of corroborating the complainant’s account?

18. [18]
    In a sexual assault case, corroboration may be found to exist in independent evidence confirming the testimony of the complainant in a material particular (R v Sailor [1994] 2 Qd R 342, 344).  In this regard, observations made by a witness of the complainant’s distressed state may very well qualify, but only where a causal connection between the matter of complaint and the distressed condition can be established as a matter of reasonable inference: R v Sailor [1994] 2 Qd R 342, 344- 345.  Even then, as with this case, juries are almost always warned to treat such evidence with care because signs of distress may be readily feigned or be equivocal in the sense that they may be attributable to “any one or more or a variety of causes other than the incident alleged”: R v Sailor [1994] 2 Qd R 342, 345;  Assuming the requisite causal connection can be reasonably inferred, a wide variety of observed behaviours may amount to distressed condition, such as crying (R v Major and Lawrence [1998] 1 Qd R 317, 324), shaking (R v Beaver (1979) A Crim R 50, 52; R v Sailor [1994] 2 Qd R 342, 343), appearing nervous or frightened (R v Roissetter [1984] 1 Qd R 477, 480), appearing stressed and unusually quiet (R v Rutherford [2004] QCA 481, [22]) or appearing shocked (R v Beaver (1979) A Crim R 50, 52; R v McDougall [1983] 1 Qd R 89, 90), but such evidence may be of little value as corroboration for the reasons already stated and therefore to be regarded as a circumstance carrying little weight: R v Berrill [1982] Qd R 508, 527; R v Sailor [1994] 2 Qd R 342, 345.
19. [19]
    Questions of value and weight are of course for the jury to determine but in every case there will be the threshold question whether a sufficient causal connection between the matter of complaint and the distressed condition can be established: R v Flannery [1969] VR 586, 591; R v Williams [2010] 1 Qd R 276, 286.  If such an inference is reasonably open, and even if there are competing inferences as to its effect, the evidence should be left to the jury.  If such an inference is not open, the evidence will be incapable of amounting to corroboration.  These are questions of law for the judge and, so, where the alleged connection is seen to be tenuous or remote, it is the duty of the judge to withdraw the evidence from the jury as a circumstance capable of constituting corroboration: R v Roissetter [1984] 1 Qd R 477, 482; R v Williams [2010] 1 Qd R 276, 286; R v Ambury [2012] QCA 178, [38] – [39].
20. [20]
    Here, it was argued on appeal that the evidence from TC as to her observations of the complainant when she returned downstairs should not have been left to the jury.  That argument was not squarely raised by the ground of appeal – where the complaint is that the trial judge erred in directing the jury that there was evidence capable of amounting to distressed condition – but what was intended is clear enough i.e., there was a misdirection because the evidence in question was incapable of being used by the jury as supplying corroboration for count 4.  If so, the complainant’s account regarding count 4 may have been erroneously buttressed and that might in turn have wrongly affected the jury’s consideration of the other counts.
21. [21]
    In support of that argument, it was submitted that the evidence was comprised of a brief, single observation about the complainant’s appearance, it was not accompanied by observations of any other attributes commonly associated with distress and the complainant did not support TC’s account in this regard (such as evidence of feeling distressed or of displaying any signs of distress).  It was argued that these features meant that there was, at best, only a tenuous connection between the evidence of TC’s observations and the complainant’s testimony regarding count 4 and, further, that this conclusion was underscored by the trial judge’s comment (extracted above at [17]) that the complainant may not have been afraid of the appellant because she remained at the unit and returned on subsequent days.  It was also submitted that there was another explanation for what TC observed i.e., that she and the complainant had been watching a horror movie prior to the complainant going upstairs with the appellant.  However, none of these arguments, even if accepted, meant that an inference as to the required causal connection was not reasonably open on the evidence, and that is especially so when regard is had to the close connection in time and location between the happening of the acts constituting count 4 and the making of the observations by someone who had known the complainant for some time.  Instead, these were all arguments that could have been advanced to the jury who had, in any event, been given careful directions by the trial judge to treat the evidence with caution.  The evidence was capable of being used by the jury in the way directed by his Honour.  No error has been demonstrated.
22. [22]
    Lastly, it was also contended by the appellant on the hearing of the appeal that the challenged evidence was equivocal.  This was submitted to be because it was not clear from the form of questions asked of TC whether in her responses she was describing what she observed about the complainant’s “facial expression” or what she thought the complainant was “feeling”.  Plainly, what (if anything) TC thought the complainant was feeling could not be admitted in evidence against the appellant but I am not at all persuaded that is what TC was attempting to do.  To the contrary, TC described how the complainant appeared – “she was like, looked scared”, “she like looked shocked and like scared” – and when TC gave that description she made “a facial expression with wide eyes”.  Taken together, there could be no room for confusion; TC’s responses were not equivocal.

Disposition

23. [23]
    For these reasons, I am of the opinion that this appeal must be dismissed.