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R v CCV QCA 126
SUPREME COURT OF QUEENSLAND
R v CCV  QCA 126
CA No 101 of 2021
DC No 641 of 2020
Court of Appeal
Appeal against Conviction
District Court at Southport – Date of Conviction: 15 April 2021 (Jackson QC DCJ)
15 July 2022
9 February 2022
Fraser and McMurdo JJA and Ryan J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was found guilty after trial of maintaining an unlawful sexual relationship with the complainant, a child under 16 years, and other sexual offences against the same child – where the appellant is the step-father of the complainant child – where the complainant was aged between 10 and 13 when the offences were alleged to have been committed between August 2016 and January 2020 – where the appellant’s argument in support of the ground of appeal relied upon inconsistencies or discrepancies in the evidence in the Crown case – where in circumstances in which, upon the complainant’s evidence, the appellant sexually abused her on numerous occasions over the years and she had tried not to remember what he had done to her, it seems wholly unsurprising that in the police interview she did not mention every single one of those occasions – where it was open to the jury to regard the suggested inconsistency as having little or no significance in the assessment of the complainant’s credibility or the reliability of her evidence – where the complainant admitted in evidence a lie she had told her mother and the appellant – where it would not be unreasonable for the jury to take into account in favour of the complainant her immediate and unqualified acceptance that she had told the lie – where the fact that at an earlier time the complainant told that lie, retracted it, and was told that she had been naughty to make up the story, is a weak basis for an argument that the complainant’s credibility was damaged to such an extent that it was not open for the jury to rely upon her evidence for a finding beyond reasonable doubt that the appellant was guilty of the offences with which he was charged – where the cumulative effect of the various discrepancies and inconsistencies in the evidence do not reveal any significant possibility that an innocent person has been convicted – whether the appeal should be allowed
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
Pell v The Queen (2020) 268 CLR 123;  HCA 12, cited
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
M W C Harrison for the appellant
D Nardone for the respondent
Vered Turner Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: The appellant was charged with eight sexual offences against his step-daughter: the appellant, being an adult, maintained an unlawful sexual relationship with the complainant, a child under 16 years (count 1), three counts of rape (counts 2, 6 and 8), three counts of indecent treatment of a child under 16 and under 12 (counts 3, 4 and 5), and one count of indecent treatment of a child under 16 (count 7). After a three day trial in the District Court in April 2021 the appellant was found guilty by a jury and convicted of each count.
- The appellant has appealed upon the single ground that the verdicts were unreasonable or cannot be supported having regard to the evidence. That ground of appeal requires the Court to conduct an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant upon each of the counts upon which he was convicted. In this matter, the Crown case depended upon the jury finding that the complainant’s evidence of the offences was credible and reliable. The Court’s assessment proceeds upon the assumption that the jury made such a finding; the whole record must be examined to determine whether the jury, acting rationally, nevertheless should have entertained a reasonable doubt as to proof of guilt, whether by reason of inconsistencies, discrepancies, or other inadequacies within the evidence or in light of other evidence.
- The complainant was aged between 10 and 13 when the offences were alleged to have been committed between August 2016 and January 2020. After the appellant married the complainant’s mother in 2013 they had two children, “A” and “B”, who are respectively about eight and 10 years younger than the complainant. The appellant has two children from a previous relationship, “C” and “D”, who are respectively about eight and nine years older than the complainant. The complainant referred to the appellant as “Dad”.
- The complainant’s mother gave uncontroversial evidence about the different places in which the family lived at different times. Upon the complainant’s evidence she was unsure whether the appellant first touched her in an indecent way at what I will call the first Gold Coast residence. They moved from there to a small country town, where the plaintiff attended school in grades four to seven from September 2016 until March 2019, when she was aged between nine and 12. Upon the complainant’s evidence the appellant indecently dealt with the complainant during that period and his indecent dealings became progressively more frequent. The appellant’s conduct became even more frequent after the family moved in March 2019 to what I will the second Gold Coast residence, where the complainant attended school in grades seven and eight when she was aged between 12 and 13.
- The evidence of the complainant comprised statements in her recorded police interview in February 2020 (when she was 13) and her pre-recorded evidence in 2021 (when she was 14). The Crown gave particulars of each count which reflected statements made by the complainant in the police interviews. The particulars of count 1 refer to the particulars of counts 2 – 8 and to other indecent dealings which the complainant described in her police interview.
- The complainant made statements in her police interview which, if they were accepted by the jury, were sufficient to establish the elements of the uncharged sexual offences described in the particulars of count 1, that the appellant: touched or squeezed the complainant’s breasts with his hand; hugged the complainant such that her breasts were pressed against him; hugged the complainant from behind such that his front was against her buttocks; touched and/or grabbed the complainant’s buttocks; rubbed his genital area against the complainant’s genital area while he was positioned on top of her; kissed the complainant on the lips; exposed his penis to the complainant; procured the complainant to rub his penis; touched and/or rubbed the outside of the complainant’s vagina; and inserted a finger or fingers inside the complainant’s vagina. It is sufficient to refer to so much of the complainant’s police interview upon this topic as demonstrates the apparent force of her narrative in the police interview.
- At the outset of the police interview in February 2020, the complainant said the appellant started off really small. He asked the complainant whether he could look at her breasts. When the complainant came out of the shower sometimes the appellant would pull her towel off. When her mother was not in the room the appellant would kneel down and jokingly mention he could see something. He would lift her shirt up and ask whether he could touch her breasts, or put his finger inside her, or just touch. This “started from the top” and later it had “gone into the bottom”. After initially saying she could not remember when it started and referring to two years ago, the complainant said it started when she was in grade four and it was four rather two years ago. The appellant started engaging in this conduct at the first Gold Coast residence.
- The complainant referred to a conversation with the appellant at a shop she identified during a period when her mother was pregnant and before the family moved to the country town. (The complainant’s mother gave birth to B about three weeks after the complainant left the Gold Coast school and about two weeks after the complainant started school in the country town.) The complainant said that at the shop the family split up because they were looking at different things. She was then alone with the appellant. The appellant told the complainant that when the complainant’s mother was in hospital the complainant could dress up in her mother’s lingerie, the appellant wanted to touch her “downstairs”, and they could have a bath together. The complainant stated, “no that wouldn’t happen like I wouldn’t let him, but like in the end it somehow did happen that he was touching there like we went home or something…a week later…”.
- The complainant’s mother gave evidence that she, the appellant, the complainant, and A (who was then nearly two) went to the identified shop after the family had moved to the country town and before she gave birth to B. The complainant’s mother said there were periods of time, definitely extending for two minutes and possibly for 10 or 15 minutes, when she was away from the appellant and the complainant on that occasion.
- The complainant stated in the police interview that she was pretty sure the touching started quite close after the conversation at the shop. She was not sure whether the touching started when they were living at the Gold Coast or in the country town; it started when they had either recently moved or were just about to move. The first time happened when the complainant’s mother was at the hospital. After that something would happen every time her mother was not around. Whenever her mother had a shower, went out to get something, was in the next room, or was in the toilet, the appellant would be “like quick quick”. When the touching first started it occurred once a week at a maximum. Not too long after that it happened two times a week. Then it became a nearly daily thing. It happened regularly when they were living in the country town. It continued and got worse when they moved from the country town back to the second Gold Coast residence.
- Sometimes when the appellant was touching her he would ask if he could lick her vagina or suck on her breasts. As the appellant quickly tried to move towards the complainant’s breasts with his tongue out, the complainant would push his head away. The appellant would laugh. He would ask the complainant if she had ever touched herself, watched pornography, and when she would have sex with him. He always asked if he could penetrate her vagina with his penis or rub his penis against her vagina. The closest the appellant came to doing something like that was when he climbed on top of her while she was lying on the bed, he sat on her, and she could feel his penis touching through the clothes.
- Whenever the complainant’s mother refused to get the complainant something she asked for, the appellant would say that he would get it for her, or change her mother’s mind, if the complainant would let the appellant put a finger inside or touch her. The complainant hated the appellant putting his finger inside her but he would always want that. It hurt the complainant. When she said it hurt the appellant would tell her to lie down and relax. When the appellant touched her he was really rough and that would hurt. He would say he would be gentle the next time and asked the complainant to let him do it again.
- The complainant referred to occasions when the appellant sat on her while she was lying down on her bed, put a leg over her, and start “grinding” or moving forwards and backwards. The complaint would struggle to free herself and she would shout. He was too strong and heavy for her to get him off. The appellant treated this as a big joke. The appellant’s sexual conduct happened a lot of times but the complainant had tried to forget about it. It happened when her mother and the other children were somewhere else in the house or garage. The appellant would also kiss her, which the complainant hated. He would randomly come up to cuddle her, push her into his chest, or grab her buttocks or breasts. He also rubbed her vagina. After a little bit she pulled his hand out and pulled her pants up.
- The complainant also referred to the appellant sometimes penetrating her vagina with a finger whilst they were in the car when, for example, he picked her up from the country town school and drove her home. The complainant stated the appellant picked her up from school in the country town in his car or in the complainant’s mother’s car. It was in the front seat. The complainant remembered two times when this happened in the car but thought it happened more than that. The two times she could remember were in the car on the way home from school and they were in the car alone. On the first occasion the appellant just did it, the complainant sat there, and after a bit he took his hand out. He put his hand inside her underwear and touched on the outside of her vagina. It was just a short trip from school to home. She could not remember anything the appellant said on that occasion.
- The complainant stated that every single time the complainant told the appellant that she did not like it. It did not matter to the appellant. He would ask if she wanted to stop, she would say yes, and he would say that it was not going to stop. A lot of the time when the appellant’s hand was under her clothing she tried to push it away but he was too strong.
- The touching had become daily for pretty much all of 2019. The appellant told her not to tell anyone. If she told anyone he would be taken away. That was why the complainant did not tell anyone for a really long time. Her little sisters loved the appellant very much. She did not want him to go because he was working and getting all the money. If he left, the family would be homeless.
- The particulars of counts 2 – 5 describe offences committed when the family lived in the country town.
- The particulars of count 2 are that the appellant inserted his finger/s into the complainant’s vagina whilst standing in a doorway of their house in the country town. The complainant referred to an occasion towards the end of the period when the family lived in the country town. The appellant said he wanted to put a finger in. They stood in the doorway of her room so the appellant could keep a lookout in case the other children came in. She was against the door and he pulled her pants down. He started with one finger in her vagina and then he tried two. The complainant told him it hurt. He stopped quickly. The appellant told her to relax. He tried to lie her down on the bed. She said she did not want to lie on the bed.
- The particulars of count 3 are that, immediately following count 2, the appellant rubbed the outside of the complainant’s vagina using his hand and/or finger/s. The complainant said the appellant started rubbing the complainant’s vaginal area. He said if you touch something and rub it is supposed to be very nice for girls. The appellant was trying to do that. After a short time the complainant pulled out the appellant’s hand and left to play with her sisters.
- The particulars of count 4 are that the appellant grabbed the complainant’s hand and used it to touch and/or rub the appellant’s penis whilst standing in a doorway of their house in the country town. The complainant stated there was a time soon afterwards when the appellant grabbed her arm and made her touch him. This happened in the same place against the door where he had stuck his finger in. The appellant said he wanted the complainant to touch it. She refused. He grabbed her hand as she was pulling away. He told her she could close her eyes. The appellant pushed the complainant’s hand onto his penis saying that it was not that bad and it was skin that felt normal. The complainant told the appellant she didn’t like it. The appellant made the complainant open her hand and stroke his penis. She closed her hand without knowing where it was and it closed around the appellant’s penis. The appellant was looking into the complainant’s face and smiling his uncomfortable smile.
- The particulars of count 5 are that the appellant rubbed the outside of the complainant’s vagina using his hand and/or finger/s while they were driving in a car in the country town, and that incident occurred after school on the drive from the complainant’s school to the family home and through a set of traffic lights. The complainant referred to what she said was the second of the two times she could remember the appellant engaging in conduct of this kind. The complainant was then in grade five at the country town school. It was a very hot day. The complainant was sitting in the passenger seat in the front. He put his hand over and under the complainant’s pants, and inside her underwear. He was touching on her vagina but not putting his fingers inside. The complainant referred to them being just about to go to the crossing to her street, just about to go to the lights. The complainant said to the appellant she did not like it and there were a lot of people. The appellant said the people couldn’t see it anyway. The appellant stopped touching the complainant’s vagina when the car pulled up on the driveway of their house.
- In cross-examination, the complainant said that, whilst the complainant was touching her under her underwear, the car he was driving was sometimes moving and sometimes stopped at the lights or a stop sign. She referred to the first lights they got to. She said they were traffic lights and there was a red light confronting their path. There were shops on each side of the road near the traffic lights. The lights were at an intersection between a main road that went through the shops and a road from the school going into the main road. She agreed the traffic lights controlled that road intersection. She thought it was a T intersection. The complainant could not recall the street names. The complainant denied suggestions that there were no traffic lights governing or controlling intersections in the country town. She said there were many traffic lights. She agreed there was a level crossing controlled by stop lights. Based on her memory, she did remember traffic lights controlling an intersection of streets. Defence counsel put to the complainant that it was central to her version that the car stopped at traffic lights. The complainant replied that was what she remembered.
- The Crown formally admitted that Transport and Main Roads did not have any permanently installed traffic signals controlling road intersections in the country town in the period during which the family lived there and the complainant went to school there.
- The particulars of counts 6, 7 and 8 describe offences committed at the second Gold Coast residence.
- The particulars of count 6 are that the appellant inserted his finger/s into the complainant’s vagina while standing in a doorway of the second Gold Coast residence. The complainant described an occasion in 2019 when she was coming out of the bathroom after washing her hands and met the appellant at the doorway. The complainant could not remember where her sisters were but they were probably playing in the garage or in the living room. It was getting dark, so somewhere around five or six. The appellant was blocking her way, he quickly spread her legs, put his hand down through the top of her pants and under her underwear, stuck his finger in and moved it in and out once or twice, very quickly. The appellant surprised her by penetrating her vagina with his finger. Once the complainant realised what the appellant was doing she grabbed his wrist and tugged his hand out.
- The particulars of count 7 are that the appellant rubbed his genital area on the complainant’s genital area while he was positioned on top of her in a bed in their second Gold Coast residence. The complainant described an occasion in the complainant’s bedroom that was not long before the interview, maybe at the end of 2019 or maybe in 2020. This was the last event of this kind the complainant could remember. The complainant was not sure where her mother was. The girls were playing in the living room or in the garage. The complainant was lying on her bed watching videos on her iPad or something. The appellant came in, got onto the bed, and got on top of the complainant. She could feel his penis area touching her vaginal area through their clothes. The appellant moved backwards and forwards, rubbing or grinding. While the appellant was doing that he asked whether her boyfriend did the same thing. The complainant was struggling to free herself and shouting. She could not get the appellant off her. The appellant finally got off her when she shouted very loudly.
- The particulars of count 8 are that the appellant inserted his finger/s into the complainant’s vagina while she was sitting on a couch in their second Gold Coast residence. The complainant stated this incident occurred a couple of months before the interview, probably in 2019, following a discussion about an identified video game. The complainant and her sisters wanted the video game in their iPad. The complainant remembered she and a sister were drawing pictures of what they could build in the video game and begging their mother and the appellant to buy the game. On the following day the appellant told the complainant that he would get the game if she let him touch her. She said “no” and kept asking for the game. The complainant thought her mother was in the shower and it was about 6.00 pm, or sometime around there. The complainant and the appellant were sitting on the couch in the living room watching television. The appellant put his hand through a gap in the baggy shorts the complainant was wearing, he stuck his finger into vagina, told her to relax and open her legs wider, and he moved his finger in and out repeatedly. On this occasion he penetrated her vagina for a longer time than the other times he had done it. The complainant told him to stop. She put her hand on the appellant’s wrist and was pushing it away, but the appellant kept going for a while before he stopped. The appellant took his hand out when the complainant’s younger sisters came into play.
- The complainant’s mother gave evidence she had refused requests by the complainant to buy her the video game. The appellant asked the complainant’s mother if he could buy the game for the complainant and the complainant’s mother said “no”. On the complainant’s mother’s return from shopping one day, the appellant told her he had bought the game on the complainant’s iPad. The complainant’s mother looked into bank records and bank statements and on 10 January 2020 found there had been a $11.00 purchase for the video game.
- In the complainant’s police interview she stated she finally wanted to get the appellant’s conduct off her shoulders and told her two closest friends, “Y” and “Z”. (The complainant’s mother gave evidence that Y’s mother would not allow a statement to be obtained from Y.) The complainant stated that her conversations with Z about this occurred by text in an application which automatically deletes the texts. She told Z her father was sexually abusing her. The complainant said she did not go into detail but it was something along those lines. At that time the complainant didn’t want to actually talk about it but she wanted advice about what she should do.
- Z participated in a recorded police interview. He said the complainant was his girlfriend until they broke up a couple of days before the police interview. Z referred to a conversation he had with the complainant by way of text on the application the complainant had identified. At the end of 2019, whilst they were still at school, the complainant said she did not like the appellant. This conversation started because the complainant was upset and Z asked her why. The complainant said the appellant sexually abused her. The complainant told Z not to tell anyone. She said the appellant touched her, she tried to get away from him, but he would not let her. That happened quite often. Z asked the complainant what she meant by touching. The complainant said the appellant put his hand down her pants and he hugged her tight so he could feel her breasts. The complainant told Z she was keeping a big secret and had not told anyone, and it was stressing her out. Z checked with the complainant from time to time after that and she told him the appellant was still touching her and doing stuff. The complainant told Z she wasn’t going to do anything about the appellant because if she did the appellant would not be working, they would not get money from the appellant, and the complainant’s mother didn’t work.
- In the complainant’s police interview she was asked how her mother had found out about what the appellant had been doing to her. The complainant stated that in the week before the police interview her mother had gone through the complainant’s mobile phone and had found what the complainant had posted on an application which allowed for anonymous posts by people who sought advice from other users. The complainant had said in her posts the step-father she lived with was sexually abusing her for seven years, she didn’t like it, but she couldn’t say anything about it because the complainant did not want to change the perfect life the family was having. Screenshots of the posts were in evidence at the trial. In the complainant’s pre-recorded evidence she said her reference to seven years was a mistake. She had miscalculated that. She estimated it had been four years.
- The complainant’s mother gave evidence that on 10 February 2020 she checked the complainant’s phone and found the complainant’s posts. The complainant’s mother asked the complainant if her messages on the application were true. The complainant said they were. The complainant’s mother took the complainant to the master bedroom where the appellant was lying on the bed. The complainant’s body was shaking. The complainant’s mother held the phone up and told the appellant she had found the complainant’s statements that the appellant had been sexually abusing her. The complainant’s mother asked the complainant when the last time happened. The complainant said it was when the appellant got her the video game. There was then a heated exchange between the complainant and the appellant in which the appellant denied the complainant’s allegations.
- Over the following days the complainant responded to questions asked by her mother about the things the appellant had been doing to her. The complainant’s answers described sexual misconduct of kinds that are consistent with the evidence she subsequently gave. As a result the complainant’s mother reported the matter to police.
- In cross-examination, the complainant rejected the numerous suggestions by defence counsel that the appellant had not engaged in the conduct the complainant had described in her evidence.
- The appellant gave evidence. He denied all of the complainant’s allegations of sexual misconduct and inappropriate behaviour. He had been working two weeks off and two weeks on as a driller on an oil rig for the preceding period of 12 years, apart from a period of about eight months when he was labouring at the Gold Coast when the family lived there. The appellant denied he was at the shop identified in the evidence of the complainant and her mother in the period they described. In relation to conduct of the kind charged in count 5, the appellant agreed he had collected the complainant from the country town school she attended a couple of times. The appellant said that on each occasion the complainant’s mother or A was also in the car. He denied there was any occasion upon which he collected the complainant when there was nobody else in the car. In relation to conduct of the kind charged in count 7, the appellant gave evidence about an injury to his right leg he said made it physically impossible for him to have straddled the complainant in the way she described in her police interview. In relation to count 8, the appellant said he gave the complainant permission to buy the video game, the arrangement being that if she did her jobs without being told to she could be rewarded with that game.
- In cross-examination, the appellant agreed there were occasions at each of the residences when the appellant was alone with the complainant for varying periods of time whilst the complainant’s mother was occupied elsewhere in the house. The appellant initially re-affirmed his evidence that there was always someone else in the car with him when he collected the complainant from the country town school. He subsequently accepted that there was someone else in the car with him probably once or twice and that a couple of times he had collected the complainant by himself. The appellant acknowledged that the reason why there must have been times when he picked up the complainant by himself was that the complainant’s mother had a young baby (B) at home she had to take care of. The appellant then accepted there were probably or maybe two or three times when the appellant drove the complainant home from school and no one else was in the car.
- The appellant agreed with the prosecutor’s suggestion that it was physically possible for him to be on all fours on a bed in a straddling position and leaning forward with his legs on either side the complainant’s hips, if his right leg got to the 50 degree point. The appellant agreed that at the country town he would have been able to get into a position during innocent play in which, whilst the complainant was on the ground, the appellant could hover over the top of her with one leg on either side of her. The appellant said that did not happen. An injury to his right knee did not impact upon his manual work as a driller on an oil rig. He could squat down with this weight on his left leg. He could move his right leg but the movement was very limited. The injury to his knee did not prevent him from driving. He could get into the driver’s seat, leaning back whilst doing so. He could use his right foot on the accelerator. He could move his right foot to the brake and use the brake. He could re-position himself in the seat.
- A medical practitioner, Dr Madden, gave expert opinion evidence about the restrictions upon the appellant’s movements resulting from that injury.
- The appellant’s argument in support of the ground of appeal relied upon four inconsistencies or discrepancies in the evidence in the Crown case. Counsel for the appellant submitted that the cumulative effect of these matters resulted in it not being open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of any of the counts of which he was convicted.
- The first point concerns statements the complainant made in her police interview:
- (a)Towards the beginning of the police interview the complainant said “this always happens when mum’s not in the room or like no-one’s in the room or away”. Subsequently, when the complainant was asked about the first time the appellant touched her when her mother was still pregnant, the complainant responded “because she wasn’t at home and she was at the hospital like…because she wasn’t around and every single time mum wasn’t around something would happen…They were together a lot of the time but whenever mum had a shower or she went out to get something or she was in the next room or was in the toilet…Dad would like quick quick”.
- (b)At the end of the police interview, the police officer asked whether the appellant did things if C was there. The complainant replied, “No he wouldn’t do it with her so it was pretty much when, girls were an exception if they were like a little far but he would be able hide it cause they wouldn’t understand or yeah”. The complainant then agreed with a statement by the police officer that the appellant would do them when the complainant’s mother and C “were gone but it wouldn’t really matter if the girls were there cause he could hide it”.
- Counsel for the appellant contrasted those statements with evidence the complainant gave in cross-examination. The complainant agreed in cross-examination that some days before giving evidence she had told the prosecutor about an incident in the kitchen at the second Gold Coast residence. The complainant said the appellant put his hand down her pants under her underwear and touched her vagina while she was standing up in the kitchen. She could not remember where her mother was. She thought her step sister C was in the dining room. The complainant accepted she had told the prosecutor she was not sure whether D was there but she remembered C was there. The complainant said C was on the other side of the kitchen bench in the dining room but she could not remember what C was doing. The complainant agreed she had suggested in her police interview that the appellant did not do such things “when [C] was there”. She agreed she had not told the police officer about the incident in the kitchen when C was very close by in the dining area. The complainant said she hadn’t told the police officer because she hadn’t remembered it.
- In circumstances in which, upon the complainant’s evidence, the appellant sexually abused her on numerous occasions over the years and she had tried not to remember what he had done to her, it seems wholly unsurprising that in the police interview she did not mention every single one of those occasions. Nor is there any necessary inconsistency between the complainant’s statements in the police interview and her evidence in cross-examination. The complainant’s police interview conveys that the appellant often put his hand very quickly into the complainant’s pants when the complainant’s mother was nearby in the house. The statements in  of these reasons do not necessarily convey that the appellant refrained from engaging in sexual misconduct if her mother or C was nearby in the house. It was open to the jury to regard the suggested inconsistency as having little or no significance in the assessment of the complainant’s credibility or the reliability of her evidence.
- The second point made for the appellant depends upon the evidence of the effect of the injury to the appellant’s leg. In relation to conduct of the kind charged in count 7, the complainant made the following statements in her police interview:
- (a)“[W]hen he’s like joking around when I’m laying down in bed and he like sits on me…he would sit down and I could feel his penis on [unintelligible] like with my vagina through clothes…or he starts grinding”.
- (b)“I would be laying on my bed and watching videos or something and he jumped over me…And this time he just walked in and then jump on my bed and then jumped on me…[I] just laying straight on my back…he…like one leg over me and then sitting down…if that makes sense…put like one leg over and sit like there so I could feel the thing and then he would start grinding a little…[f]acing me…both his legs would be like bent over…on me…so his legs would be on either side…he would sit and it would be like a big joke and…he would like look at me and then he would like move forward and back and [unintelligible] in a rubbing grinding position”.
- (c)The police officer suggested the appellant was sitting up. The complainant agreed. When asked what part of the appellant’s body was grinding on the complainant, she said “like his hips…and like all of that…he moves his hips like moving the below part of him…”. The complainant agreed she had said that she could feel his penis through his clothes and agreed he was rubbing his hips and penis and everything on the complainant with his penis touching her vagina.
- In the pre-recorded evidence, the complainant agreed her head was where the pillow would be and her feet were at the other end of the bed. She said the appellant was “On top” with his legs “On me – on each side of me…Each side…Around me. Around my legs. This is hard…On the outside of my legs.” In cross-examination the complainant said the appellant came into her room “jumped on top of me with his legs outside of my body, and he was kind of sitting on me…He was sitting on me…In a way. Well, I was laying straight flat on the – not flat completely. On the bed. He jumped on top of me with his legs around my legs with his thing touching [indistinct]…Touching mine through clothes…”. The complainant said the appellant’s face was “Facing mine…Pretty close. No, I’m not sure. I just remember that it was pretty close.”
- There followed this exchange:
“Well, you’ve used the words that he was sitting on you. Does that mean he was sitting on his backside? Yes.
Right. So was – was he effectively sitting in between your legs, was he? Yes. And kind of, like, leaning towards me with his hands out.
Right. And if he was sitting on his backside between your legs, where were his legs? Bent on – bent outside of my body, like, next to my hips.
Okay. So bent outside your body next to your hips? Yes.
Were his feet on the bed? Yes.
And are you saying to me that he thereby enabled to have his groin area touch your groin area? He did if – so if I was laying flat and his legs were around me, his groin area touching my groin area sitting kind of on my legs, while kind of leaning towards me with his – that’s the best I can do.”
- Some points about the complainant’s evidence should be mentioned here. The statements made by the complainant in the police interview and in her pre-recorded evidence suggest that she found it difficult to explain the way in which the appellant positioned himself. The complainant was not asked to describe how the appellant’s right leg was bent or whether she actually noticed that at the time.
- Dr Madden was a general practitioner whose practice had been confined entirely to occupational health for 20 years before he gave evidence in April 2021. He had conducted pre-employment medical examinations for companies for whom the appellant had worked on a number of occasions and he had also examined the appellant for one incident of an injury. He had seen the appellant on a number of occasions since 2006. The appellant had given a history of fracturing his right knee when he was 16, he had made a good recovery, the knee did not lock or click or give way, but it did not fully bend. On the last occasion when the doctor had examined the appellant’s knee, September 2019, he measured a range of motion of the appellant’s right knee of between minus 12 degrees and 50 degrees. The appellant himself could not influence the measurement because the doctor made the measurement by moving the joint himself until it came to a hard stop caused by bone in the knee. The measurement of minus 12 degrees meant the appellant could straighten his leg only up to the point where it was 12 degrees short of a wholly straight leg (zero degrees). The measurement of 50 degrees meant the appellant could bend his leg only up to a point where it was 40 degrees short of a right angle. A fit young person would have a range of motion between zero and 140 degrees. In order to kneel comfortably, usually slightly more than a 90 degree bend is required. The appellant could not from a standing position squat down on his right leg to pick something up from the floor. When the doctor last tested the appellant, which was in October 2016, he could squat only by bending his left knee and extending his right leg forward.
- Defence counsel read aloud the complainant’s statements in her police interview set out in  of these reasons (other than the exchange I have emphasised). The doctor said that his professional opinion was that the appellant “could not have adopted the position so described due to the restriction of motion in his right knee.”
- In cross-examination Dr Madden explained that he was envisaging that the appellant was effectively sitting down on top of the other person, his legs were outside the other person’s legs, the soles of his feet were not on the bed but the top of his feet were on the bed, the appellant was doing something akin to a person straddling a horse with both legs on either side, and the appellant was sitting down with his legs bent beyond the 50 degree point. Dr Madden agreed with the suggestion that it would have been possible for the appellant to have positioned himself lying on top of a person, hovering over that person, and grinding his pelvis over that other person’s pelvis.
- The complainant was not asked about and did not give evidence supporting the doctor’s assumptions that the top of the appellant’s feet were on the bed and the appellant’s right leg was bent beyond the 50 degree point. The jury could accept and take into account that she had difficulties in articulating exactly how the appellant positioned himself. In light also of her age, the dynamic nature of the events, and their shocking character, the jury could find that the doctor’s opinion was deprived of weight because the assumptions upon which it was based were incorrect. In the circumstances I have outlined, the difficulty in comprehending all aspects of the appellant’s position described by the complainant did not require the jury to doubt that he had rubbed his genital area on the complainant’s genital area while he was positioned on top of her on the bed.
- I note also that the doctor did not have the jury’s advantage of watching the complainant give her evidence. In this respect, the prosecutor submitted to the jury that the jury would remember that when they watched the complainant giving her evidence in cross-examination, she made a motion with her arms which, when taken into account with her statements that the appellant was sitting on her, his feet were on the bed, his face was facing hers and pretty close to hers, he was kind of sitting between her legs with his hands out while kind of leaning towards her with legs bent on the outside of her body next to her hips, conveyed that she was talking about someone on all fours on a bed, straddling, in the position the prosecutor described to the doctor.
- The appellant’s third point concerns the significance of the Crown admission and other evidence described in  –  of these reasons. Defence counsel submitted to the jury that the admission showed the complainant was unreliable about an important detail that was central to her story about count 5, the jury could not be satisfied about her reliability on that count, and that doubt should be translated to the other counts.
- One of the arguments for the respondent at hearing of the appeal was that the admission did not exclude the existence of temporary traffic lights, the complainant’s description of the location of the offence suggested it was a relatively high level traffic area, and the evidence left open the existence of level crossings in the country town that were controlled by lights. These submissions are not consistent with the way in which the prosecutor presented the case to the jury. The prosecutor acknowledged that the jury might think the complainant was wrong about there being a traffic light on the trip home and referred to the Crown’s admission. There is no suggestion in the evidence that the roads from the school to the house crossed the railway line or there was a temporary traffic light. Upon the evidence, it would not be reasonable to find there was a traffic light at the intersection the complainant described.
- It does not follow from the fact that the complainant was wrong about that detail that it was unreasonable for the jury to accept the complainant’s evidence of the offence charged in count 7. The complainant gave detailed evidence of conduct which amounted to the elements of that offence. She identified the particular offence charged in count 7 by it being the second of two occasions she could recall the appellant engaging in similar conduct, the day was a hot one, the appellant engaged in the conduct both when the car was moving and when it was stopped, the complainant saw people outside the car when it was stopped, she drew that to the appellant’s attention, the appellant responded that they would not see what he was doing in the car, and the appellant persisted in the offending conduct until he drove into the driveway of the country town residence.
- The fourth point made on behalf of the appellant concerns what the complainant admitted in evidence was a lie she had told her mother and the appellant. During cross-examination in the complainant’s pre-recorded evidence, defence counsel put to the complainant that, on one occasion when they were living at the first Gold Coast residence, she came home from school and told her mother and the appellant a story that a drunk driver had hit her with the driver’s car, police had attended, police had told her to go home because they would sort it out, her mother and the appellant were quite upset and worried, they said they would telephone the police, and the complainant then told them she had made it up. The complainant answered “Yes” to each suggestion. She agreed that the appellant and her mother then spoke to her about it being naughty to make up a story. When asked why she had made up the story the complainant said that when she was walking home from school she saw a lady in a car. She started to picture things in her head, so she made up the story. She could not explain exactly why she told the story. She agreed she did make up lots of stories in her head, but she didn’t always tell them; she had an imagination and got bored walking home from school.
- It would not be unreasonable for the jury to take into account in favour of the complainant her immediate and unqualified acceptance that she had told the lie. The fact that at an earlier time the complainant told that lie, retracted it, and was told that she had been naughty to make up the story, is a weak basis for an argument that the complainant’s credibility was damaged to such an extent that it was not open for the jury to rely upon her evidence for a finding beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.
- There were other minor discrepancies and inconsistencies within the evidence, but so much is not inconsistent with the complainant’s evidence of the charged offences being honest and reliable. In deciding whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, full regard must be paid to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the jury had the benefit of having seen and heard the evidence. For the reasons I have given, the cumulative effect of the various discrepancies and inconsistencies in the evidence do not reveal any significant possibility that an innocent person has been convicted. The verdicts of guilty upon each count were open to the jury upon the whole of the evidence.
- I would dismiss the appeal.
- McMURDO JA: I agree with Fraser JA.
- RYAN J: I agree with Fraser JA.
 M v The Queen (1994) 181 CLR 487 at 493 – 494; SKA v The Queen (2011) 243 CLR 400 at  – .
 Pell v The Queen (2020) 268 CLR 123 at .
 The family had earlier lived elsewhere on the Gold Coast but there was no suggestion that the appellant had behaved inappropriately in that earlier period.
 There are transcripts of two separate recordings but the break between the two recordings is very short and had no material impact upon the continuity of the police interview.
 The appellant gave evidence that the doctor did not move his leg but he, the appellant, was in a sitting position and attempted to move his leg in response to requests by the doctor.
 M v The Queen (1994) 181 CLR 487 at 493; Pell v The Queen (2020) 268 CLR 123 at 145 – 147.
- Published Case Name:
R v CCV
- Shortened Case Name:
R v CCV
 QCA 126
Fraser JA, McMurdo JA, Ryan J
15 Jul 2022