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R v Petersen (a pseudonym)[2021] QCA 64

R v Petersen (a pseudonym)[2021] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v Petersen (a pseudonym) [2021] QCA 64

PARTIES:

R

v

PETERSEN (a pseudonym)

(appellant)

FILE NO/S:

CA No 333 of 2019

DC No 54 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Dalby – Date of Conviction: 20 November 2019 (Ryrie DCJ)

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2020

JUDGES:

Sofronoff P and Philippides JA and Lyons SJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of multiple sexual offences against a child and was acquitted of other similar offences – where the only direct evidence was that of the complainant – where the complainant’s allegations were made for the first time during a second police interview – whether there were significant inconsistencies in the complainant evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the learned trial judge directed the jury regarding evidence of multiple counts and considering each count separately – where the learned trial judge directed the jury that their overall assessment of the complainant witness was relevant to all counts – where the learned trial judge directed the jury that the evidence to prove the counts was different in each case – where the learned trial judge directed the jury that acquittal on some counts did not require acquittal on other counts because the elements and evidence were different on each count – whether the learned trial judge’s directions were adequate

Evidence Act 1977 (Qld), s 93A

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

J P Benjamin for the appellant

J A Wooldridge QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  This is another case in which an appellant, who has been convicted of multiple sexual offences against a child, and who was acquitted of several other similar offences, contends that the guilty verdicts were unreasonable on the ground that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond a reasonable doubt,[1] and upon the ground that the guilty verdicts were unreasonable having regard to their inconsistency with the acquittals on other counts.[2]
  2. [2]
    The complainant was the appellant’s daughter and was aged between 11 and 13 at the date of the alleged offences, which were all alleged to have been committed between January 2014 and August 2016.  She lived with the appellant and her mother and three sisters in a Queensland country town.  The Crown case will be described shortly.
  3. [3]
    The first offence was committed after the complainant gave the appellant a back massage.  She straddled his back and rubbed it with baby oil.  She was wearing a red dress with white polka dots.  When she lay down next to the appellant to rest, he began to kiss her on her lips and moved his hand beneath her underpants and rubbed her genitals.  He then inserted his finger into her vagina and moved it in and out.  This was count 1.
  4. [4]
    On another occasion, while the complainant lay on the couch in the lounge room of her home, the appellant joined her.  He hugged her and moved his hand beneath her underpants.  He inserted his middle finger into her vagina and moved it in and out.  This caused her pain and bleeding.  This was count 2.
  5. [5]
    The family had moved house during this period.  The complainant accompanied the appellant in a blue van to the family’s former home to feed the animals they kept there.  The appellant pulled the complainant onto his lap while sitting on a chair outside the house.  She could feel his hard penis and he inserted it into her vagina and bounced her up and down before telling her to get off while he ejaculated.  This was count 3.
  6. [6]
    While sleeping in her bedroom, the complainant woke up with the appellant on top of her.  He had inserted his penis into her vagina and was moving it in and out.  This was count 4.
  7. [7]
    While at the former home feeding the animals, the complainant was in her former bedroom.  The appellant came in and removed her clothes and then his own clothes.  He licked her breasts and her genitals and then had penile intercourse with her.  This was count 5.
  8. [8]
    Shortly after the family had moved into their new home, the complainant was sleeping on a mattress on the floor of her bedroom when appellant entered and forced her head onto his penis and made her suck it.  This was count 6.
  9. [9]
    On another occasion the complainant accompanied her father in a red utility to the family’s former home.  While the complainant was in her old bedroom the appellant sucked her nipples and genitals and had penile intercourse with her.  This was count 7.
  10. [10]
    Counts 8 and 9 happened in sequence.  The complainant was with one of her younger sisters, lying on the sister’s bed watching a Pokémon movie.  The appellant entered and lay behind the complainant.  He moved his hand under her shirt to touch her breasts and then moved into her pants and inserted his fingers into her vagina.  This was count 8.  The complainant got up and entered the nearby bathroom.  The appellant followed her and sat on the toilet.  He positioned the complainant on his lap and inserted his penis into her vagina.  This was count 9.
  11. [11]
    The only direct evidence incriminating the appellant was that of the complainant.  Her evidence was in statements tendered under s 93A of the Evidence Act 1977 (Qld).  As usual in such cases, the complainant’s evidence was clear as to some details and less clear as to others.
  12. [12]
    In relation to count 1, the complainant described how she was giving her father a back rub and then “kinda just laid down, because I needed a rest”.  She continued, relevantly:

“COMPLAINANT:  And then he started like, I think he moved his hand onto my thigh, and then like started rubbing it while he was talking to me.

At first I thought it was a kiss, like, I love you as a daughter, type of kiss.

I think he kissed me on the cheek, then he just moved over and kissed me on the lips, I think.

He moved his hand into my underwear, and started rubbing me.

SGT ELLIS:  Okay.  And what were you wearing at the time?

COMPLAINANT:  A dress, because it was summer, and it was hot.

SGT ELLIS:  You were wearing a dress.  Okay.  You said he moved his hand into your underwear.  Tell me all about what he did.

COMPLAINANT:  He started rubbing there.

SGT ELLIS:  Whereabouts?

COMPLAINANT:  On my private.

SGT ELLIS:  Okay.  Um, he was rubbing, rubbing you with his hand.

COMPLAINANT:  His fingers.

SGT ELLIS:  His fingers, on your privates?

COMPLAINANT:  I think he was doing circles, or something.

SGT ELLIS:  … And do you remember about the dress?  What dress you were wearing?

COMPLAINANT:  It was red, with white polka dots.  I remember because it was my favourite dress.

SGT ELLIS:  Okay.  Red with white polka dots, favourite one.

COMPLAINANT:  Yeah.

SGT ELLIS:  Okay.

COMPLAINANT:  I don’t have that dress anymore, because I don’t like dresses now.

SGT ELLIS:  Where did his hand go when he was on the inside of your underwear?

COMPLAINANT:  He, after a while he stopped rubbing, and stuck [INDISTINCT], I think it was his pointer finger inside of me.

SGT ELLIS:  So, sorry a-, after a while he stopped rubbing, and put his pointer finger inside of you?

COMPLAINANT:  Yes.

SGT ELLIS:  … And what happened then?

COMPLAINANT:  He started moving it in and out.

SGT ELLIS:  Okay.  And then what happened?

COMPLAINANT:  He s-, kept moving it in and out faster.

SGT ELLIS:  Mmhmm.  And then what happened?

COMPLAINANT:  I don’t know.”

  1. [13]
    The evidence on count 2 was, in summary, as follows:

“COMPLAINANT:  Um, I was hugging him.  I think this was when I actually lost my, like there was kinda a lot of blood, so.

SCON HATTON:  Mmhmm.  And I, I know it’s difficult, but tell me what you mean, you lost what?

COMPLAINANT:  I think is the time I actually did lose my virginity.

SCON HATTON:  Okay.

COMPLAINANT:  Like this was, ‘cause for some reason at first I thought it was, ‘cause not that long um before I hit that stage where, you know, I got through puberty, and I get my period and stuff.

SCON HATTON:  Okay.

COMPLAINANT:  And I kinda thought it was weird, because my period wasn’t supposed to come at that time.

COMPLAINANT:  And I was hugging Dad again, I think.  I think I already said this, but for some reason it always started out with hugging.

SCON HATTON:  Yeah.

COMPLAINANT:  And he started to move like, I was laying on my left side facing him, and he started to move his fingers down into my pants, and everything.  And he was touching me all in my underwear.

COMPLAINANT:  And then he started to move his fingers inside of me.

SCON HATTON:  Yeah.

COMPLAINANT:  He rolled me over so I was on my back looking at the ceiling, and he was sitting up on his arm, still laying on his side though, [INDISTINCT], um pushing his left hand, fingers inside of me.

SCON HATTON:  Yeah.

COMPLAINANT:  Yeah.

SCON HATTON:  And then what happened?

COMPLAINANT:  Um, and then there was like a lot of blood.

SCON HATTON:  Yeah.

COMPLAINANT:  So yeah.  And then I ran to the bathroom because I was very confused, ‘cause I thought it was my period at the time.

SCON HATTON:  Yeah.  Yeah.  And then what happened?

COMPLAINANT:  Um, so I cleaned myself up, because of what had happened, and then just um, went to bed.  Shutting my bedroom door.

SCON HATTON:  Okay.  Do you know what hand he used?

COMPLAINANT:  His left.  And I don’t think they were clean, because I remember waking up really sore down there the next day.

SCON HATTON:  Okay.  And when you say, he put his fingers inside you, do you know how many fingers he used?

COMPLAINANT:  His rude finger.

SCON HATTON:  Ring finger.  Which finger’s that?

COMPLAINANT:  The middle one.

SCON HATTON:  The middle finger?

COMPLAINANT:  Yeah, his rude finger.

SCON HATTON:  Oh rude finger.

COMPLAINANT:  Did you think I said, ring finger?

SCON HATTON:  Okay.  And how far did his finger go in?

COMPLAINANT:  His whole finger.

SCON HATTON:  Yeah.  And what was he doing when he’s put his f-, whole finger in you?

COMPLAINANT:  He was pulling it in and out, and then just like slamming it, like technically, like full-on hitting really hard--

SCON HATTON:  Yeah.

COMPLAINANT:  Into me.

SCON HATTON:  Okay.  And how long was he doing that for?

COMPLAINANT:  Um, until the, [INDISTINCT] blood came out.

SCON HATTON:  Alright, just so you remember that time, do you wanna call that the time you were bleeding, so we can remember that from any of the other times?

COMPLAINANT:  The time I lose my virginity, I guess.”

  1. [14]
    The substance of her evidence about count 4 was as follows:

“SGT ELLIS:  You said the next time was, how, how long after the first time was the very next time?

COMPLAINANT:  Probably a week later.

SGT ELLIS:  Probably a week later?

SGT ELLIS:  … Okay.  You said earlier when we begi-, began talking that your dad has stuck um, he’s had sex with you.

COMPLAINANT:  Yes.

SGT ELLIS:  Okay.  What do you, can you tell me what you understand sex is?

COMPLAINANT:  Intercourse.

SGT ELLIS:  Intercourse.  Okay.  You understand what that is, that’s good.  So tell me about the time that he had sex with you, that you mentioned earlier.

COMPLAINANT:  Um, I don’t really remember the first time, all I remember when he was doing it was, I woke up one night, and he was on top of me.

SGT ELLIS:  Okay.

COMPLAINANT:  And he was inside of me.

SGT ELLIS:  Okay.  Tell me what happened then.  You said, I think you said you woke up--

COMPLAINANT:  And he was on top of me.

SGT ELLIS:  He was on top of you?

COMPLAINANT:  Yes.

SGT ELLIS:  What happened?

COMPLAINANT:  I just tried to ignore it, and go back to sleep.

SGT ELLIS:  Okay.  Well tell me all about him being on top of you.

COMPLAINANT:  What do you mean?

SGT ELLIS:  Well tell me what he was doing when he was on top of you.

COMPLAINANT:  He was in my pants, and he was touching my chest.

SGT ELLIS:  So he’s in your pants?

COMPLAINANT:  Yes.

SGT ELLIS:  Okay.  And tell me about him being in your pants.

COMPLAINANT:  He wasn’t using his fingers, he was using his penis.

SGT ELLIS:  Okay.  So he was using his penis inside of your pants?

COMPLAINANT:  He was having sex with me.”

  1. [15]
    The evidence about count 3, on which the jury found the appellant not guilty, will be dealt with together with the evidence on the other counts of which he was acquitted.
  2. [16]
    The evidence on count 5 was, relevantly, as follows:

“COMPLAINANT:  Yeah.  I remember him being on top of me, he was licking me, I had no clothes on, ‘cause he took ‘em off.

SGT ELLIS:  He took ‘em off, or you took ‘em off?

COMPLAINANT:  He took ‘em off.

SGT ELLIS:  Okay.  And that happened at [the former family home]?

COMPLAINANT:  Yes.

SGT ELLIS:  Okay.  So s-, you were naked you said?

COMPLAINANT:  Yes.

SGT ELLIS:  Why, tell me about why you were naked.

COMPLAINANT:  So he could get, he took my clothes off so he could get to my body easier, and so he could look at me to see what I looked like when I was naked.

SGT ELLIS:  Okay.  [INDISTINCT], tell me about why he did that.

COMPLAINANT:  I don’t know.

SGT ELLIS:  Did he ask you to get naked, or did he?

COMPLAINANT:  He just took my clothes off.

SGT ELLIS:  Okay.  He, so he took ‘em all off?

SGT ELLIS:  Okay, so it was just you and your dad at [the former family home]?

COMPLAINANT:  Yes.

SGT ELLIS:  Okay.  You said that he was, ah, took your clothes off to see your body, to see what you look like naked.

COMPLAINANT:  Yes.

SGT ELLIS:  And you said he was licking you.

COMPLAINANT:  Yes.

SGT ELLIS:  Okay.  Tell me all about him licking you.

COMPLAINANT:  He was licking me on my privates.

SGT ELLIS:  Okay.

COMPLAINANT:  He was licking around my breasts, and down there.

SGT ELLIS:  Okay.  So whereabouts in the house were you when he was doing that:

COMPLAINANT:  My old bedroom.

SGT ELLIS:  And then what happened?

COMPLAINANT:  After he stopped licking me he would have sex with me again.

SGT ELLIS:  Okay.  And what did you say when he was doing that?

COMPLAINANT:  I’ve asked him several times not to.  He ignored me, and just kept doing it.”

  1. [17]
    The evidence on count 6 was, relevantly, as follows:

“SCON HATTON:  Is there another time when something happened to you that you can talk about?

COMPLAINANT:  Ah, yeah.

SCON HATTON:  Mmhmm.

COMPLAINANT:  One night, I think it was around spring--

SCON HATTON:  Mmhmm.

COMPLAINANT:  Around 11 o’clock in the, at night--

SCON HATTON:  Mmhmm.

COMPLAINANT:  Um, he got me to um, you know, suck his penis.

SCON HATTON:  Yeah.

COMPLAINANT:  Which is so weird.

SCON HATTON:  Yeah.  Okay.  So—

COMPLAINANT:  I didn’t wanna do it though.

SCON HATTON:  Yeah.

COMPLAINANT:  But--

SCON HATTON:  Mmhmm.

COMPLAINANT:  He forced me.

COMPLAINANT:  Well he was laying on his left, and we were just like hugging from the sides.

SCON HATTON:  Yeah.  Okay.  So where was um, he, where was his body in relation to your body?

COMPLAINANT:  He was in front of me.

COMPLAINANT:  And I think he started to touch my butt.

SCON HATTON:  Yeah.

COMPLAINANT:  I know he does that sometimes.

SCON HATTON:  Mmhmm.  Did you say anything yet?

COMPLAINANT:  Um, no, I don’t think so.

SCON HATTON:  Okay.  So tell me about him touching your butt.

COMPLAINANT:  Um, he just like had his, my, his hands on my back, and then he just like moved down, and just like had his hand there.

SCON HATTON:  Mmhmm.  And how long did he do that for?

COMPLAINANT:  Ah, a couple o’ moments, I guess.

SCON HATTON:  Yeah.  And then what happened next?

COMPLAINANT:  He rolled over, because he had a boner.

SCON HATTON:  Okay.  So tell me what is a boner?

COMPLAINANT:  His penis was all hard.

SCON HATTON:  Yeah.  And how did you know that?

COMPLAINANT:  Because he took it out.

SCON HATTON:  Okay.  So tell me about him taking it out.

COMPLAINANT:  He pulled down his pants, and started doing like this with it.

SCON HATTON:  Mmhmm.  And when you say, started doing this, do you know what that is called?

COMPLAINANT:  Grabbing it, and going in his hand, and going up s-, and down.

SCON HATTON:  Mmhmm.  Yeah.  And then what happened?

COMPLAINANT:  He told me to suck it, and stuff.  I asked him not to, I didn’t want to.

SCON HATTON:  Yeah.  And do you remember um, the exact words he used?

COMPLAINANT:  Um, he was doing like a sweet and gentle voice at first--

SCON HATTON:  Mmhmm.

COMPLAINANT:  Going, please, do it for me.

SCON HATTON:  Yeah.

COMPLAINANT:  Something like that.

SCON HATTON:  Yeah.  And did he use those words that you said, suck it?

COMPLAINANT:  Ah, I think he did like, just put it in your mouth.

SCON HATTON:  Yeah.

COMPLAINANT:  Like it, it’s okay, or something like that.

SCON HATTON:  And what’s the next thing that happened?

COMPLAINANT:  Um, I said, no, a couple more times.  And then he got aggressive, and said, just do it.

SCON HATTON:  Mmhmm.  And what sort of a, I noticed you used a different voice then--

COMPLAINANT:  Yeah.

SCON HATTON:  And you said it was aggressive, so was it a little bit more of a [sic] angry voice?

COMPLAINANT:  Yeah.

SCON HATTON:  Okay.  And did he do anything else when he said that?

COMPLAINANT:  Um, he kinda just like grabbed my arm real hard, I think.

SCON HATTON:  Yeah.  Yeah.  And then what happened?

COMPLAINANT: Um, I think he, he does this noise that, I don’t know why, but it just like hypnotises me or something--

SCON HATTON:  Mmhmm.

COMPLAINANT:  So it makes me, you know, like give in, and actually do stuff.

SCON HATTON:  Mmhmm.  What noise do you mean?

COMPLAINANT:  It’s kinda like a puppy dog noise, but a little different.

SCON HATTON:  Mmhmm.  Yeah.  And then what did he do next?

COMPLAINANT:  Um, he was holding my hair like this, because his penis was in my mouth.

SCON HATTON:  Mmhmm.  Alright.  So um, a minute ago he’s been saying, just do it, s-, okay, um, and he’s grabbed your arm hard.

COMPLAINANT:  Yeah.

SCON HATTON:  So how has he then, how’s that next part happen where his penis is in your mouth, just tell me how that big [sic] happened.

COMPLAINANT:  I don’t know, it’s like, he’s grabbing my arm, and I guess he’s like pulling me down to it, or something.

SCON HATTON:  Yeah.  Okay.  And how far did his penis go in your mouth?

COMPLAINANT:  Um, I think it hit, till it hit the, what’s it called?  I don’t know the pun-, the punching bag, or whatever, like.

SCON HATTON:  Yeah.  Yeah, the punching in--

COMPLAINANT:  I don’t re-,--

SCON HATTON:  In your throat?  Yeah.

COMPLAINANT:  Yeah, I don’t remember what it’s called.

SCON HATTON:  Yeah.  I can’t remember either, that’s okay, we don’t need to know that.  I’ll just write that here, punching bag in your mouth.  And how long was that happening for?

COMPLAINANT:  Until he just like grabbed my hair and pulled my head back, and then he started to come.

SCON HATTON:  And h-, did you say he started to come?

COMPLAINANT:  Yeah.

SCON HATTON:  What does that mean?

COMPLAINANT:  I don’t know, like sperm started to come out.

  1. [18]
    The evidence on count 9 was, relevantly, the following:

“SGT ELLIS:  Alright.  So, um, you mentioned another time that you said he had sex with you, it was in a bathroom.

COMPLAINANT:  Ah, I, yeah, ah down at [new home] where we used to live, there’s a bathroom and toilet area—

SGT ELLIS:  Yeah.

COMPLAINANT:  It has a door and it locks.

SGT ELLIS:  Yeah.

COMPLAINANT:  And then there’s the bathroom.

SGT ELLIS:  Yeah.

COMPLAINANT:  Um, I went, was going to the toilet one time, then Dad came in.  And lo-, came in and locked the door, and yeah, started touching me again, and--

SGT ELLIS.  Mmhmm.

COMPLAINANT:  All that stuff.

SGT ELLIS.  Okay.  So tell me about what he did that time.

COMPLAINANT:  It’s kinda like the same when I was outside with him.  I was on his lap, his penis was inside of me, and I didn’t wanna be there.

SGT ELLIS:  Yeah.  So what does he do with his penis when it’s inside you?

COMPLAINANT:  [INDISTINCT], I thought it woulda been obvious to adults that if you wanna have kids that’s how you do it.

SGT ELLIS:  Okay.  Okay.  So h-, how long was his penis inside of you then?

COMPLAINANT:  I don’t know, ten, fifteen minutes.

SGT ELLIS:  Okay.

COMPLAINANT:  I didn’t really pay attention to the time.

SGT ELLIS:  Okay.  So what happens when he’s finished?  What does he do?

COMPLAINANT:  Um, he tells me to clean myself up, and he just acts like everything’s normal.  He pretends that i-, nothing happened.

SGT ELLIS:  And tell me about cleaning yourself up.

COMPLAINANT:  As in, he told me to get in the shower, and, and wash like everything off, or something like that.

SGT ELLIS:  Mmhmm.  Ah what do you have to wash, what does he make you wash?

COMPLAINANT:  Everything.

SGT ELLIS:  Mmhmm.  As in what?

COMPLAINANT:  My whole body?

SGT ELLIS:  Mmhmm.

COMPLAINANT:  Even if it hurts, I have to wash down there too.

SGT ELLIS:  Okay.  So he makes you do that?

COMPLAINANT:  He tells me to.

SGT ELLIS:  Okay.

COMPLAINANT:  I do it anyway, because I don’t want him--

SGT ELLIS:  Okay.

COMPLAINANT:  Him dirty on me.

SGT ELLIS:  Yeah.  You don’t want any of his what, sorry?

COMPLAINANT:  I don’t like to feel dirty.”

  1. [19]
    Police interviewed the complainant on 15 February 2018.  They interviewed her again on 18 April 2018.  The evidence about counts 1, 4, 5 and 9 was in the first interview.  At the beginning of the second interview the complainant gave the evidence about counts 2 and 6 for the first time.  Following that, there was the following exchange:

“SCON HATTON:  No.  Okay.  So now we’re had a little break, um you’ve just given me a couple more times.  So the virginity time, and the aggressive night.  So are there any other times that you wanna tell me about where you can remember the details of what he’s done to you?

COMPLAINANT:  No, I don’t think I can remember any more, ‘cause I’ve--

SCON HATTON:  Yeah.

COMPLAINANT:  Blocked ‘em off with fake memories.

SCON HATTON:  Okay.  So I know you talked to Craig about a few before.  So we’ve got them, we’ve got two more today.  Oh just have a little think for a minute, and just see if you can think of another time that we haven’t already covered.  If you’re not sure, just ask me if it’s one you h-, might’ve already spoken about.

COMPLAINANT:  I can’t remember any more.

SCON HATTON:  Nuh.  Okay.  Um, I was just gonna see if you could give me a little bit more detail then on one you have already spoken about.  So I guess we don’t wanna really go over what you’ve already told me, but just some extra things about how, how it happened.”

  1. [20]
    During the first interview, the complainant described the events surrounding count 3 in the following way:

“SGT ELLIS:  Okay.  So when, do you remember the last time he had, well can you tell me about the last time he had sex with you?

COMPLAINANT:  No I cannot, because I don’t remember.

SGT ELLIS:  Okay.  I know we’ve talked about two times you’ve had sex with him, and you said there was possibly--

COMPLAINANT:  I remember he had sex with me more than twice.

SGT ELLIS:  More than twice, but maybe more than ten, or up to ten, or something like that, is that what you said?

COMPLAINANT:  It was probably ten, or more.

SGT ELLIS:  Okay.

COMPLAINANT:  I remember being outside at one point, in the bathroom, [INDISTINCT].

SGT ELLIS:  Okay.  So there was a time outside--

COMPLAINANT:  Yes.

SGT ELLIS:  That he had sex with you?

COMPLAINANT:  Yes.  It--

SGT ELLIS:  Ok-,--

COMPLAINANT:  Was when we were living at [former home] still.

SGT ELLIS:  Okay.  Well tell me about that time, if you remember that time.

COMPLAINANT:  I was outside helping him with something, then he grabbed me closer, or something, like he grabbed my sides, or whatever.

SGT ELLIS:  Grabbed your sides?

COMPLAINANT:  My waist.

SGT ELLIS:  Oh, around your waist?  Yeah.

COMPLAINANT:  Then pulled me closer, and started kissing me, and touching me.

SGT ELLIS:  Mmhmm.  When you say, you were outside, you mean outside the house, or somewhere on the farm property, or?

COMPLAINANT:  Outside the house.

SGT ELLIS:  Outside the house.  Okay.  Do you remember where on the property you were at the time, or what you were doing at the time?

COMPLAINANT:  Um, there was a little table and chairs there.  I remember him sitting on that while I was sitting on his lap.

SGT ELLIS:  Okay.  What happened then?

COMPLAINANT:  I told him it was cold, I don’t wanna do this, and I wanted to go inside.

SGT ELLIS:  And then what happened?

COMPLAINANT:  [INDISTINCT], I think we, I think he did his thing first with me, then we went inside when he was done.

SGT ELLIS:  Okay.  And tell me about the thing he did with you before you went inside.

COMPLAINANT:  It’s obvious, he had sex with me.

SGT ELLIS:  Okay.  So we were talking about um, the last couple o’ times that he had sex with you that you remember the, the locations.  You said one about outside, near the table and chairs at [former home] property, we were--

COMPLAINANT:  Yeah.

SGT ELLIS:  T-, talking about that.  And I asked you if you could go into detail and tell me, or describe to me everything, what he did, and how he did it.

COMPLAINANT:  Yeah.  I can’t really do detail so much, ‘cause it’s not my general area.  I can’t do detail.

SGT ELLIS:  Okay.  Righto.  Um, and you said he was sitting on, you were--

COMPLAINANT:  Ah--

SGT ELLIS:  Sitting on his lap, he’s holding you on his lap.

COMPLAINANT:  Yeah.

SGT ELLIS:  So then what happened?

COMPLAINANT:  Um, well obviously he didn’t want me to move because he had his penis inside of me, and if I moved apparently like he would come.

SGT ELLIS:  Mmhmm.

COMPLAINANT:  So I couldn’t really do anything, but sit there.

SGT ELLIS:  Okay.  So he had his penis inside you while you were sitting on his lap?

COMPLAINANT:  Yeah.

SGT ELLIS:  Okay.  Well tell me how it got to that stage?

COMPLAINANT:  Um, honestly I don’t know.  I just remember hugging him, and then all of a sudden I was on his lap.

SGT ELLIS:  Okay.

COMPLAINANT:  It was always when I was hugging him.  It would always turn into something sexual.

SGT ELLIS:  Mmhmm.  And then, what were you wearing at the time when that happened?

COMPLAINANT:  Um, I don’t remember, honestly.

SGT ELLIS:  Okay.  So you were just on his lap, and all of a sudden his penis was inside you?

COMPLAINANT:  Yeah.”

  1. [21]
    In response to further questions about the details concerning count 3, there was the following:

“SCON HATTON:  Yeah.  And how did it come about that you were both sitting on the um, the seats at the side of the house?

COMPLAINANT:  Um, he pulled me onto him.

SCON HATTON:  Okay.  And how did he do that?

COMPLAINANT:  Ah.

SCON HATTON:  Yeah.

COMPLAINANT:  He did it gently, but also rough.

SCON HATTON:  Okay.  And what way were you facing?  Were you facing away from him, or towards him?

COMPLAINANT:  Towards him.

SCON HATTON:  Okay.  And tell me what’s happened sorta before he’s um put his penis in you.  So um, just clothing wise, what’s happened there?

COMPLAINANT:  Ah, I think he took his penis out of his pants--

SCON HATTON:  Mmhmm.

COMPLAINANT:  And then like moved my clothing so he could, so I was still wearing it, but--

SCON HATTON:  Yeah.

COMPLAINANT:  He could do what he wanted--

SCON HATTON:  Yeah.

COMPLAINANT:  With me.

SCON HATTON:  And so when he’s took his penis out of his pants, when you, did you see that?

COMPLAINANT:  Um, no, but I felt it.

SCON HATTON:  Okay.  And what did it feel like?

COMPLAINANT:  Ah, weird.

SCON HATTON:  Mmhmm.

COMPLAINANT:  Uncomfortable.

SCON HATTON:  Okay.  Um, so you said you still had your clothes on when he did it.

COMPLAINANT:  Yeah.

SCON HATTON:  Um, do you remember any of the clothing that you were wearing?

COMPLAINANT:  No, I s-, don’t--

SCON HATTON:  [INDISTINCT]

COMPLAINANT:  Sorry.

SCON HATTON:  Mmhmm.  Did you have underwear on?

COMPLAINANT:  Yes.  Of course--

SCON HATTON:  Okay.

COMPLAINANT:  I would.

SCON HATTON:  Ah, do you remember whether you had like a dress, or a skirt on, as--

COMPLAINANT:  No.

SCON HATTON:  Opposed to pants or shorts?

COMPLAINANT:  I think I was wearing pants, or, and shorts or something.

SCON HATTON:  Yeah.  You did, ‘cause you said it was cold.

SCON HATTON:  Yeah.  Okay.  So how did it come about that he’s put his penis in you?  So how did he do that?

COMPLAINANT:  I don’t know.  He adjusted my clothes, or something.

SCON HATTON:  Yeah.  That’s okay.

COMPLAINANT:  Like he just.

SCON HATTON:  Yeah.  Okay.  And then when it was in there what did he do?

COMPLAINANT:  He kinda just like was holding me, but making it so like a light bounce, or something.

SCON HATTON:  Yeah.  And how did he do that?

COMPLAINANT:  Um, by moving his leg, I think.”

  1. [22]
    The complainant’s account of count 7 was given for the first time after that exchange.  Relevantly, the evidence was this:

“COMPLAINANT:  I went inside, ‘cause I was helping move stuff around, and this was in my old room, again.  He took my clothes off, pushed me on the bed, he took his clothes off, and um, he started like touching my chest, and then ended up like, you know, sucking the nipple, my nipples and stuff.  And then went down to lick me.  After he finished licking me down there, he came up and put his penis in me.

SCON HATTON:  Mmhmm.

COMPLAINANT:  He tried to kiss me, but I wouldn’t let him, so he just ended up kissing my neck, and he started moving back and forwards with his penis.

SCON HATTON:  Yeah.

COMPLAINANT:  He took it out when he started to come.

COMPLAINANT:  Most of them basically were similar.

SCON HATTON:  Yeah.

COMPLAINANT:  So.

SCON HATTON:  Okay.

COMPLAINANT:  It’s an infinite hallway of mirrors.

SCON HATTON:  Mmm.  Now there is a time which sounds, does sound the same as that, but I don’t know, is there a way of where you can say that it’s a different time?

COMPLAINANT:  It is.

SCON HATTON:  What makes you say that this is a different time to the one you’ve already spoken about?

COMPLAINANT:  Because I remember walking home with my best friend.

SCON HATTON:  Okay.

COMPLAINANT:  And the car was different.

SCON HATTON:  And you were fourteen, grade eight.

COMPLAINANT:  Yes.

SCON HATTON:  So about what time in the year was this one?

COMPLAINANT:  Ah, before May.

SCON HATTON:  Okay.  So you said it happened in your old room.  So just tell me how this started to come about.

COMPLAINANT:  I don’t know how it starts all the time.

SCON HATTON:  That’s okay.

COMPLAINANT:  It just happens.

COMPLAINANT:  I don’t know, he started kissing me, I think.

SCON HATTON:  And whereabouts were you in the room when that happened?

COMPLAINANT:  Near my bed.  I think I was grabbing stuff off the shelf.

SCON HATTON:  Yeah.  And do you know what you were getting off the shelf?

COMPLAINANT:  Toys, books, or something.

SCON HATTON:  Okay.  And what’s, ah when he kissed, first kissed you, did he grab you anywhere, or anything?

COMPLAINANT:  Ah, no.

SCON HATTON:  Okay.  And when he kissed you, where did he kiss you?

COMPLAINANT:  On my lips.  He put his tongue in my mouth, and it just carried on from there.

SCON HATTON:  Okay.  So you probably know I wanna chop ‘em up into little bits, and get a little bit at a time.  So he’s done that bit, okay, put his tongue in your mouth.  Was he holding you anywhere at that time?

COMPLAINANT:  I think he was clipping, unclipping my bra.

SCON HATTON:  Okay.  And how did your clothes um, come off?

COMPLAINANT:  Well technically he was unclipping my bra first.  Like his--

SCON HATTON:  Mmhmm.

COMPLAINANT:  Hands were in my shirt unclipping--

SCON HATTON:  Yeah.

COMPLAINANT:  It--

SCON HATTON:  Yeah.

COMPLAINANT:  And then he pulled off my br-, um shirt, and bra.

SCON HATTON:  Yeah.  Yeah.  And did he take off any other of your clothes?

COMPLAINANT:  Um, no, I think he left my pants on.

SCON HATTON:  Okay.  And do you remember what you were wearing?

COMPLAINANT:  Ah--

SCON HATTON:  So pants.

COMPLAINANT:  T-shirt.

SCON HATTON:  Yeah.

COMPLAINANT:  Um, um.

SCON HATTON:  So you had a bra.  Did you have undies on?

COMPLAINANT:  Yeah.

SCON HATTON:  And do you know what sorta pants and T-shirt, like colour, or--

COMPLAINANT:  No I don’t.

SCON HATTON:  Pattern?  That’s okay.  Do you remember what he was wearing?

COMPLAINANT:  No.  I can’t remember the clothes.

SCON HATTON:  That’s okay.  And when you said he left your pants on, he’s taken your top and bra off, is that right?

COMPLAINANT:  Mmm.

SCON HATTON:  What’s the very next thing that happened?

COMPLAINANT:  Um, I think he, um, adjusted my pants, so like they stayed on, but he was able to touch everything, and get his penis inside.

SCON HATTON:  Yeah.  And did he still have his clothes on, or has he taken them off?

COMPLAINANT:  Ah, I think he took them, no, he kept his on.

SCON HATTON:  Okay.  ‘Cause before you said he took both our clothes, he took your, both your clothes off.

COMPLAINANT:  Oh, he did?  I did?  I’m sorry.  I’m tired.

SCON HATTON:  That’s okay.

COMPLAINANT:  I don’t—

SCON HATTON:  Mmm.

COMPLAINANT:  Remember now.

SCON HATTON:  Yeah.  And you said he was sucking your nipple, is that right?

COMPLAINANT:  That was a different one.

SCON HATTON:  Well that’s what you said before.

COMPLAINANT:  Oh, yes.  Yeah, sorry.  Oh my goodness.  I’m really tired now.  Sorry.”

  1. [23]
    In relation to count 8 there was the following evidence given for the first time:

“COMPLAINANT:  I remember another time when he did touch me and stuff.

SCON HATTON:  Yeah.  You’ve just remembered.

COMPLAINANT:  Yeah.

SCON HATTON:  Yep, so it’s not one of the ones we’ve already spoken about?

COMPLAINANT:  I don’t, I don’t think so.

SCON HATTON:  Okay.

COMPLAINANT:  I was in my sister’s room, I think, with [H], before they separated, and he, we were watching a Pokémon movie, ‘cause we kinda like Pokémon, well she’s a huge fan.

SCON HATTON:  Yeah.

COMPLAINANT:  I watch it now and then.  And um, he came in, and I was laying on my right side, with [H] laying on her back on her bed, she was watching the movie while I was just laying there like this--

SCON HATTON:  Mmhmm.

COMPLAINANT:  So it was like sitting like this, I guess.

SCON HATTON:  Yeah.

COMPLAINANT:  Um, I probably should say this one actually carries on from the bathroom room.

SCON HATTON:  Okay.  Yeah.

COMPLAINANT:  I’m not sure if I talked about--

SCON HATTON:  Yeah.

COMPLAINANT:  The beginning though.

SCON HATTON:  There is a bath, how many bathroom ones have happened?

COMPLAINANT:  This is the one I told Craig--

SCON HATTON:  Yeah.

COMPLAINANT:  [INDISTINCT]

SCON HATTON:  So just once?  Yeah.  So this--

COMPLAINANT:  Yeah.

SCON HATTON:  Did this happen before that, or after the bathroom part?

COMPLAINANT:  Before it.

COMPLAINANT:  And he started to move his hand in my shirt, so he was like touching my breasts.  And then he moved his hand down again, and started touching me there.  My sister didn’t realise it, because she’s, she doesn’t really pay attention to her surroundings when--

SCON HATTON:  Mmhmm.

COMPLAINANT:  She’s watching something.

SCON HATTON:  Yeah.

COMPLAINANT:  So if you were to ask her any questions, she won’t know.

SCON HATTON:  And where did he touch you?  Sorry.  Oh, excuse me.

COMPLAINANT:  [INDISTINCT]

SCON HATTON:  Excuse me.  Sorry.  When you said, he touched me there, where do you mean?

COMPLAINANT:  He moved into my pants, and started touching, like my downstairs, vagina, whatever.

SCON HATTON:  Yeah, vagina.  Yeah.

COMPLAINANT:  And he, yeah, as I said, he didn’t care if I had my period, and stuck his fingers inside of me.

SCON HATTON:  Yeah.

COMPLAINANT:  I didn’t like [INDISTINCT].  It didn’t--

SCON HATTON:  Yeah.

COMPLAINANT:  Feel nice.

SCON HATTON:  And then what happened?

COMPLAINANT:  We moved.  Ah, he got up and moved to the bathroom, and since you have that all recorded--

SCON HATTON:  Yeah.

COMPLAINANT:  I don’t think you need me to explain it.

SCON HATTON:  Okay.  And then, I’ll just see, did you, if you’ve got.  Okay, so we’ve got how old you were.  Do you remember what you were wearing?

COMPLAINANT:  Ah, no.  I was probably wearing a singlet though with shorts.

SCON HATTON:  Mmm.  If you’re not sure, don’t just guess.

COMPLAINANT:  I usually wore a singlet when I was there, so.

SCON HATTON:  Yeah.  Do you remember what time o’ the year it was?

COMPLAINANT:  Ah, no, I don’t, sorry.

SCON HATTON:  Okay.  Do you remember what he was wearing?

COMPLAINANT:  No.  I didn’t technically look at him.

SCON HATTON:  And how do you remember that you had your period?

COMPLAINANT:  ‘Cause um, I don’t usually watch Pokémon at night with [H].

SCON HATTON:  And um, you said he laid on his right, is that correct--

COMPLAINANT:  Yeah.

SCON HATTON:  And you were on your right?

COMPLAINANT: Yes.

SCON HATTON:  So he was behind you?

COMPLAINANT:  Yes.

SCON HATTON:  And um, was he behind you, so like his head was also behind you?

SCON HATTON:  And stuck his fingers inside of you.  So how far um, did they go in?

COMPLAINANT:  Probably up to around here, or there.

SCON HATTON:  Yeah.  So like um, up to, I guess, the second knuckle, is that right?

COMPLAINANT:  Yeah.

SCON HATTON:  Yeah, from your fingernail.  And how many fingers did he use?

COMPLAINANT:  Um, two, I think.  And I th-, it really hurt.

SCON HATTON:  And how long was he doing that for?

COMPLAINANT:  Um, until we got up to go to the bathroom, so a minute, I guess, or so.”

  1. [24]
    The learned trial judge, Ryrie DCJ, directed the jury that the elements of the nine charges were different and the evidence to prove the counts was also different in each case.  Her Honour told the jury that the prosecution had to prove each charge beyond a reasonable doubt and that the jury had to consider each count separately.  The jury must not reason from a conclusion of guilt on one or more counts to a conclusion of guilt on other counts.  Her Honour also directed the jury that a decision to acquit on a particular count did not mean that the appellant had to be acquitted on other counts because the elements and evidence were different on each count.  Ryrie DCJ told the jury that the case depended upon the jury’s satisfaction, beyond a reasonable doubt, that the complainant was telling the truth and the jury had to consider whether or not a reasonable doubt about truth or reliability of the complainant’s evidence on a particular count or counts might be relevant to an assessment of her evidence on other counts.
  2. [25]
    The jury retired to consider its verdict on a Friday afternoon at 3 o’clock.  On the following Monday morning the jury sent a note to the judge as follows:

“May we request to speak to the judge regarding how we can apply individual verdicts when there is a reasonable doubt that can be applied to some counts and much less doubt for other accounts.”

  1. [26]
    After hearing submissions from counsel, her Honour gave the jury further directions which included the following:

“… remember I said that this case primarily rises and falls on your acceptance of her account as to what she says occurred as actually happening to her, and you have to be satisfied of her account as both truthful and accurate as to what she said actually occurred to her beyond a reasonable doubt before you could find [the appellant] guilty in respect of any one of those counts, because she is the same person who is telling you about the charges.  Okay?

The other thing I wanted to remind you, remember – and you may not remember this, but if, as I said, when you are looking at the charges and you are looking at them separately, evaluating, as I said, the evidence that relates to that particular charge when you decide whether you are satisfied beyond a reasonable doubt that the Prosecution has proved the essential elements that go to make up that particular charge, if you have a reasonable doubt that concerns the truthfulness or reliability or, in this case, accuracy of the complainant’s evidence in relation to one or more of those counts, whether by reference to her demeanour or for any other reasons, that must, as I reminded you, be taken into account when you assess the truthfulness and reliability of her evidence generally, because, you see, her – your general assessment of the complainant as a witness will be relevant to all of the counts, but you will have to consider, as I have said, her evidence in respect of each count when you look at that particular count.  Okay?

Now, it may occur – and I just want to remind you of this – it may occur in respect of one of the counts that you are looking at that for some reason you are not sufficiently confident of her evidence to convict in respect of that count.  A situation may arise where in relation to a particular count you get to the point where, although you are inclined to think she is probably right, you have some reasonable doubt about an element or elements of that particular charge.  Now, if that occurs, of course, you find the defendant not guilty in relation to that charge or count.  Now, that does not necessarily mean you cannot convict of any other count, but you have to consider why it is that you have some reasonable doubt about that part of her evidence, and consider whether it effects the way you assess the rest of her evidence, that is, whether your doubt about that aspect of her evidence causes you to also have a reasonable doubt about the part of her evidence relevant to any other count that you go on to look at.  Okay?

So it is very important that you remember that her general assessment – your general assessment of her as a witness is relevant to all counts, but, ultimately, you still have to consider her evidence in respect of each count when you consider that count.”

  1. [27]
    The jury then retired once again at about 1 o’clock.  Later that afternoon, the jury delivered another note to the judge:

“We have not been able to agree unanimously on any of the counts.  It appears that we are not closing the gap either.  Do you have any recommendations on how to proceed?”

  1. [28]
    The learned judge gave the jury a “Black direction”[3] and the jury retired once more.  A few minutes later the jury sent a note requesting that the complainant’s evidence be replayed.  This was done on the following day, a Tuesday.  After the evidence was replayed, the learned judge gave the jury some further directions.  Her Honour reminded the jury that “the Crown’s case relies upon your acceptance of the complainant as both truthful and accurate in her account, regarding what she says was happening to her” and that, before they could find the appellant guilty on any count, they had to be satisfied beyond a reasonable doubt that her evidence was truthful and accurate.  Her Honour warned the jury in conventional terms[4] about the dangers caused by delay.  She reiterated some of the arguments of defence counsel concerning inconsistencies in the complainant’s evidence and reminded the jury about aspects of the evidence that defence counsel had relied upon to argue that the commission of the offences was implausible.
  2. [29]
    Her Honour reminded the jury about the possible significance for them of the fact that some of the complainant’s allegations were made for the first time in her second interview with police, many weeks after the first interview.  Her Honour gave examples of some inconsistencies in the two accounts in relation to count 3, which had been disclosed in the first interview and then embellished in the second interview.  Her Honour also made observations to the same effect about counts 7 and 8.  Her Honour then said:

“And so, consequently, I pose the question to you in the context of the warning and the direction that I gave you, which is when you are scrutinising her evidence, you need to do so with great care, because, again, you need to ask yourself why is it, if they stuck out the first and the last time that she spoke about, why is it that these events which are of a magnitude you might think, if, in fact, they were truthful and accurate as actually happening as she described, that she would have been telling the police on the first occasion about those, because, as you heard, she was not just with Detective Ellis, a male police officer, on the first occasion – you all picked it up.  You thought it was it was [sic] the second one – there was another female police officer there and Child Safety and other people who were present.  So, again, that is something that you need to also consider.”

  1. [30]
    Her Honour reminded the jury about defence counsel’s argument concerning a motive to lie that the complainant might have had and said:

“Now, members of the jury, even, like I said, if you are not persuaded that there was any motive on her part to make up a story, and even if you are not persuaded there was any reason for her to make up any false allegations, which you do not find being established, it does not necessarily mean that the complainant is truthful.  It remains necessary for you to be satis – you must satisfy yourself that she is truthful beyond a reasonable doubt regarding what she says actually occurred to her.  And that is an additional matter, in addition to all the inconsistencies that I have raised for you.  Why I say this to you – and I said it to you before and I need to repeat it again – that you should only act on her evidence if, after considering it with the warning in mind and all the matters I have just outlined for you, and having regard to all the other evidence that is available for your consideration, you are convinced of its truthfulness and accuracy beyond reasonable doubt.  Okay.  Because if you cannot reach that point, then, as I said, you find him not guilty.”

  1. [31]
    The learned judge’s directions were, in my respectful opinion, impeccable.  They encapsulated and identified the crucial issues that the jury had to consider.  The learned judge identified the important issue concerning the possible differences in the quality of the evidence given in the first and the second interviews, something that favoured the defence.
  2. [32]
    It must be observed that, on the counts upon which the jury found the appellant guilty, the evidence about the acts constituting the offences was clear and precise.  This included the evidence about counts 2 and 6 even though these were only disclosed for the first time in the second interview.  However, after telling police about those two offences, the complainant made her reference to having “Blocked [the offences] off with fake memories” and said that that she “can’t remember any more”.  It was after making these comments that the complainant gave further details about count 3, which muddied the account she had already given[5] in a way that defence counsel argued, with some force, raised a reasonable doubt about the reliability of her evidence about that offence.  Also, it was after making those comments that the complainant raised for the first time her allegations about counts 7 and 8.
  3. [33]
    The offence in count 8 was said to have been committed just before the offence in count 9, which she had detailed with clarity in her earlier interview.  However, in giving her account of the offence in count 8, the complainant made several assertions that did not sit comfortably with her earlier description of count 9.  That is not to say that the later assertions were inherently incredible; but the fact that there were significant inconsistencies to be considered and taken into account if the two offences were committed in sequence.  For example, as the appellant’s counsel submitted at trial, in relation to count 8, a digital rape was said to have been committed on her sister’s bed and in her sister’s presence.  The offence in count 9 was committed in the toilet nearby.  In her description of the offence count 9, a penile rape in the bathroom, the complainant had said at first that she had gone to the toilet and the appellant had followed her in, locked the door and raped her.  When relating the events concerning count 8, the complainant said that immediately afterwards it was the appellant who “got up and moved to the bathroom”.  This inconsistency naturally raised a question in the interviewer’s mind because she asked, “… how did … he and you get from the bedroom to the bathroom?”  The complainant then changed her account and said “Considering I technically was actually going to the toilet, he followed me in, I guess.”  Defence counsel relied upon this anomaly to attack the credibility of the complainant’s account of count 8.
  4. [34]
    Count 7 was disclosed for the first time in the second interview.  The complainant’s account of count 7 was almost the same as her account of count 5.  The interviewer observed that the description “sounds similar to another one”.  The complainant said, “Most of them basically were similar” and then added, “It’s an infinite hallway of mirrors”.
  5. [35]
    The jury could well have regarded these aspects of the complainant’s account of counts 3, 7 and 8 as impugning her the reliability of her recollections and rendering those pieces of evidence as an unsatisfactory basis for a guilty verdict.
  6. [36]
    The jury must have been satisfied that the complainant was giving evidence about her recollections in good faith otherwise they would not have convicted at all.  However, as the learned judge directed them, they had to be satisfied not only about the complainant’s honesty but also about her reliability.  The jury’s verdicts to acquit on counts 3, 7 and 8 were not irrational.  The verdicts as a whole were explicable on the footing that, in obedience to the judge’s direction to consider each count separately and to have in mind that the case depended upon an acceptance of the complainant’s honesty as well as the reliability of her evidence, the jury was satisfied with the complainant’s honesty but were not prepared to accept the reliability of her evidence about counts 3, 7 and 8.
  7. [37]
    This ground should be rejected.
  8. [38]
    The appellant’s submission that the guilty verdicts were unreasonable otherwise[6] should also be rejected.
  9. [39]
    The essence of the complainant’s evidence has already been set out.  The appellant contended at trial that the commission of the offences was implausible for various reasons.  The appellant submitted that it was “highly implausible” that the appellant managed to achieve penile penetration while the complainant was wearing pants and underwear.  In fact, the complainant said that she was “wearing pants, or, and shorts or something”.  Whether penile penetration is impossible or unlikely having regard to the presence of those garments was a matter for the collective experience and opinion of the jury.  The argument that it was unlikely that the appellant could have had penile intercourse with the complainant while she was sleeping was also a matter for the jury.  Whether such asserted instances of implausibility, if the underlying facts were accepted, raised a reasonable doubt, when considered with all the other evidence, was pre-eminently a matter for the jury.  Everything depended upon the jury’s assessment of the complainant herself and upon their judgment of her account of events in the light of their own mature experience.
  10. [40]
    The jury was also able to take into account evidence that was supportive of the prosecution case.  The complainant’s mother recounted how the appellant said of his daughter, the complainant, “Look at the size of those tits.  Look at that arse wobble” and, with respect to her pubic hair, “Look at that muff”.  The jury might well have accepted this as evidence of the appellant’s sexual interest in his daughter which rendered the commission of the offences by a father upon his daughter less unlikely.  There was also evidence of preliminary complaint to the complainant’s two close friends.  One of them did not recall any such complaint being made to her and the other said that the complainant had only said that her father had sexually abused her.  The significance of that evidence was also a matter for the jury.
  11. [41]
    In my opinion, the evidence of the complainant was capable of supporting the guilty verdicts.
  12. [42]
    The appeal should be dismissed.
  13. [43]
    PHILIPPIDES JA:  I agree for the reasons stated by the President that the appeal should be dismissed.
  14. [44]
    LYONS SJA:  I agree with the reasons and order proposed by the President.

Footnotes

[1] See, for example, SKA v The Queen (2011) 243 CLR 400 at [11].

[2] MacKenzie v The Queen (1996) 190 CLR 348 at 368.

[3] Black v The Queen (1993) 179 CLR 44 at 51-52.

[4] Longman v The Queen (1989) 168 CLR 79.

[5] See the last part of the passage of evidence quoted in [21].

[6] M v The Queen (1994) 181 CLR 487 at 493-494.

Close

Editorial Notes

  • Published Case Name:

    R v Petersen (a pseudonym)

  • Shortened Case Name:

    R v Petersen (a pseudonym)

  • MNC:

    [2021] QCA 64

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Lyons SJA

  • Date:

    09 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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