R v TAN[2022] QCA 193

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 6 September 2021 the appellant was convicted of two counts of rape, each being a domestic violence offence.  He appeals those convictions on three grounds:

   1. (a)
      the verdicts are unsafe and unsatisfactory;
   2. (b)
      prejudicial evidence was led before the jury and a mistrial should have been declared; and
   3. (c)
      the medical evidence did not support a conclusion that the appellant was guilty.

Legal principles

2. [2]
   The principles to apply when a verdict is challenged on the basis that it is unreasonable are well known.  They were recently restated by the High Court in Dansie v The Queen.^[1]  The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[2]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9] The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

3. [3]
   The High Court also said:^[3]

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.

4. [4]
   In R v Miller^[4] this Court said:

“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

Review of the evidence

5. [5]
   The complainant (whom I will call COM) was interviewed by police on 30 June 2017.  She was then about seven years old.  The following matters emerged from that interview:

   1. (a)
      COM said she was there to talk about “somebody touching me” and that the person “was touching me and I told him to stop, but he didn’t listen”;^[5]
   2. (b)
      COM said the person “put his rude part in my rude part”;^[6]
   3. (c)
      COM said she started crying and her grandmother^[7] asked if she was alright;  AGM did this twice;^[8]
   4. (d)
      she identified the person as her father, the appellant;^[9]
   5. (e)
      COM said that she complained that it hurt, but he did not listen;^[10]
   6. (f)
      COM described the house as being AGM’s, in which the appellant lived with AGM;  it had two beds,^[11] one of which was used by the appellant;^[12]
   7. (g)
      she was asked to describe the first time something happened and said the appellant had “told me to go in the room, then he came in the room, then he did it”;^[13]
   8. (h)
      she said the event occurred at night;^[14]
   9. (i)
      the first time happened when COM and her mother^[15] came to pick up the appellant; MUM was still helping AGM and “my dad said lets go …, then he did it”;^[16]
   10. (j)
       COM described AGM’s house as having two bedrooms, side by side, one of which was used by AGM and the other by the appellant; in AGM’s room were two beds and COM and her brother use to sleep in the bed beside AGM;^[17]
   11. (k)
       COM said that the appellant told her “if it hurts, tell me”, and to be quiet and not cry; she said “He was sitting on top of me”;^[18] COM corrected that description, saying that the appellant was “laying me”, during which he was “touching my [INDISTINCT]”;^[19]
   12. (l)
       COM then gave a fuller description of what occurred including:

       1. the appellant told her to take off all her clothes;
       2. he then started touching her, scratching her, and then he “put his rude part in my rude part”; and
       3. in the morning she was “hurting and I saw blood” and “When I was at the hospital, I saw blood too”;^[20]  COM said that the offending occurred in the appellant’s room, and that the appellant told her to take her clothes off so she was naked;  she then gave another description of what occurred in these terms: “he started touching me and scratching me, then he put his rude part in my rude part, then he went on me, then I didn’t even move and I said ‘can you … get off me now, and I pulled my [INDISTINCT] and he said no;^[21]
       4. that description was repeated, with COM identifying her “rude part” as being that part of her body used for peeing;^[22]
       5. asked to describe the touching, COM said “touched it with his hands”, “In the middle” and “He did it inside”;^[23]  she added that “When he put his rude part in my rude part he did it harder …”;^[24]
       6. when questioned further about what happened, COM repeated that description, saying that she told the appellant to stop and that he did not listen, and then she starting crying;  at that point AGM asked if she was alright and the appellant answered saying “yes”;^[25]
       7. COM said the next morning she went to the toilet where “I pooed and I peed and when I wiped myself I [INDISTINCT] blood”;^[26]
       8. COM said she did not tell MUM because then the appellant would get angry; she eventually told her on a different day.^[27]
6. [6]
   COM gave evidence for the trial by way of a pre-recording on 7 March 2018, at which time she was about eight years old.  She affirmed that everything she had said in her police interview was correct.  She then identified various photographs of AGM’s house.  She was then asked to explain her use of the words “rude part” and “middle” as identifying her rude part.  She said that when she used the phrase “middle part” she was talking about her “rude part”,^[28] and that she was talking about the inside of her body.  She then said that the appellant touched her on the inside of her body and when she had said he scratched her rude part, she also meant the inside of her rude part.^[29]
7. [7]
   In cross-examination, the following relevant points emerged:

   1. (a)
      the appellant told her to take her clothes off when he came into the room;^[30]
   2. (b)
      when AGM asked if she was okay she came into the appellant’s room, at which point COM had her clothes off and was crying; that is when AGM asked if she was okay;^[31]
   3. (c)
      she had only told MUM about one occasion when the appellant had put his rude part in her rude part, or touched her rude part, even though she had told police that it happened “lots of times”;^[32]
   4. (d)
      it was put to her that she was giving a version of events that was not true, and she denied that;^[33]
   5. (e)
      she also denied that she was giving her account in order that she did not have to see the appellant;^[34]
   6. (f)
      it was put to her repeatedly that she was making up the story she was telling and on each occasion she denied that;^[35]
   7. (g)
      having again asserted that her account was true, she explained that she could feel the scratching because “he was going inside” with his hand, and he did the same thing with his rude part, “Because I could feel it was hurting”;^[36]
   8. (h)
      she explained that the light was off and she did not see the appellant’s rude part, but she knew he was naked “because I felt him”;^[37]
   9. (i)
      she described that when she first saw the blood it was only a little bit, and after she did a poo at the hospital, she wiped herself and saw some blood; she explained she saw that when she got tissues to wipe herself and then she saw “more blood”;^[38]
   10. (j)
       COM denied the suggestion that MUM had told her what to say or that she had practised what to say with MUM; she explained that all MUM had said was to remember what she was going to say in court, and to remind herself to tell the truth.^[39]

MUM’s evidence

8. [8]
   MUM gave evidence through an interpreter.  Having referred to her relationship with the appellant, she described what COM told her.  It was, “my father touched me on my sexual parts”, which she qualified by saying that COM used the term “lupa”.  The interpreter explained that the answer by MUM was that COM said “My dad touched me inside my lupa”.^[40]
9. [9]
   MUM said that when COM told her that, MUM lost control and went to AGM’s house.  Later that day she saw the appellant and spoke to him.  She said she asked the appellant “Did you really do it?  Did you hurt my daughter?”.  She explained that the translation “hurt my daughter” in her original language literally meant “Did you have sex with my child?”.  The appellant at first denied that he had done so, but having been to the house and spoken with AGM he came back to the car and apologised and confirmed that he had done it, saying that he was drunk.^[41]
10. [10]
    In cross-examination she explained the difference between her statement and her evidence.  In her statement she said COM had revealed “daddy touched me”, and when she asked where, MUM had looked at her and COM pointed at her vagina.^[42]  When questioned about the fact that there was nothing about being touched inside, MUM explained that it was a translation issue and if it was translated into her native language “it would mean the same”.^[43]
11. [11]
    In further cross-examination MUM maintained her account of the conversation where, she said, the appellant admitted that he had sexually touched COM.^[44]
12. [12]
    MUM denied the suggestion that she had put COM up to telling the story or encouraged or coached her to lie about it.^[45]

Expert medical evidence

13. [13]
    Dr Skellern, a forensic paediatric specialist, gave evidence concerning her examination of COM on 3 July 2017, three days after the police interview.  She described in general terms the type of examination she was able to carry out which was generally to the anatomy of the genitalia, excluding the inside of the vagina because it was not possible to do so in a child of that age.^[46]
14. [14]
    She explained that she was able to see all of the relevant genital structures including that COM had a hymen which was normal for her age and stage of development and that the hymen revealed “there was some early estrogen effect”.  The hymen was normal in appearance.^[47]  She was asked if one would expect to see signs of penetration, had that occurred.  She answered that one would not necessarily expect to see signs of penetration because the vagina itself healed quite quickly and completely, and further, whether there was injury that could be seen at a later point in time depended upon the penetrating force and other factors such as lubrication.^[48]
15. [15]
    She also explained that one would not expect to be able to tell from a medical examination if there had been penetration of what was called the “true vagina” because as you get the estrogen effect it makes the hymen “stretchy” which meant that it could start to accommodate having some level of penetration without being injured.^[49]
16. [16]
    In cross-examination Dr Skellern maintained her position that one would not expect to see anything abnormal even if there were full penetration.^[50]  She explained that in terms of injuries, anything less than a complete transection down to the base of the hymen would repair quickly and often completely.  The same applied if fingers had been placed inside a seven year old child’s vagina, even with scratching.^[51]

AGM’s evidence

17. [17]
    AGM gave evidence via an interpreter.  She said that the appellant lived with her but at 2 July 2017 she had sent him to his sister’s^[52] house, to stay with her because her children had been taken away.  He had been staying with ASJ for seven and a-half weeks.  The interpreter explained that there had been a misinterpretation about the length of time that the appellant stayed with ASJ, and it was a week and a-half, not seven and a-half weeks.^[53]
18. [18]
    AGM said that during the time when the appellant lived at ASJ he did not come back to her house.  That was subsequently clarified by AGM, who explained that she could not remember when it was that the appellant stayed with ASJ.^[54]  She confirmed that several days before the police came to her house on 2 July 2017, MUM told her what COM had said had happened to her.^[55]
19. [19]
    AGM explained that the appellant always lived with her.^[56]
20. [20]
    AGM explained that on occasions COM and her siblings would stay at her house.  On those occasions MUM would sleep with the appellant and the children would sleep with AGM.^[57]
21. [21]
    AGM said that she was not aware of any time where COM slept in the appellant’s room.  She said she could not remember ever hearing a child cry in the appellant’s room:^[58]

“[AGM]:  No, not even a … I can’t say something that I didn’t see.  Even before God.  God would punish me.

[Counsel]:  Do you remember ever hearing someone cry in [the appellant’s] room, and asking if they were alright?

[AGM]:  No, not at all.  I cannot lie before all of you.  You see my age;  I cannot tell something that I didn’t see.

…

[AGM]:  If I had seen or heard the child crying in that room, I’ve woken up and gone to see, but I didn’t see anything.  Nothing – what you’re asking me, never happened”.

22. [22]
    AGM was asked in a variety of ways whether she could remember that the children visited in 2017, and in a period prior to the police arriving.  It is evident that she had difficulty answering because of language difficulties and interpretation problems.  In the end AGM said that the children did not come to visit during 2017.^[59]
23. [23]
    AGM said that on the day when she was informed as to what COM had said about the appellant’s conduct towards her, she saw MUM and the appellant speaking at a car, after which the appellant “come back crying”.  He told her about the allegation that MUM was making, which was: “She said she alleged that [the appellant] had sex with his daughter”.^[60]
24. [24]
    Cross-examination of AGM revealed the following points:

    1. (a)
       her house was small with two bedrooms; the appellant had his own bedroom which was next to her bedroom;^[61]
    2. (b)
       by reference to photos AGM identified the bedrooms and the layout of the house;
    3. (c)
       when MUM came to stay with the children, AGM slept with some of the children (including COM) while the appellant and MUM stayed in the other bedroom with the youngest child;^[62]
    4. (d)
       there were two beds in her bedroom, the children’s bed and her own bed;^[63]
    5. (e)
       COM never slept with the appellant in his bedroom;^[64]
    6. (f)
       after the conversation she had with the appellant, where he revealed what was being said about him, AGM had no recollection of telling the appellant that he should smooth things over;^[65] and
    7. (g)
       what MUM revealed to her, as to what COM had said, was:

“Mum, do you know that somebody has just told me that [the appellant] has assaulted – has had sex with my daughter”.^[66]

Police evidence

25. [25]
    A police forensic officer gave evidence that a forensic examination of the mattress in the appellant’s room had been conducted.  A presumptive blood test was done on the mattress and that produced a negative result.  As a result, no extra testing was done.^[67]
26. [26]
    A second police officer gave evidence that he contacted a woman, identified in other evidence as a girlfriend of the appellant, who had been mentioned in other statements made to the police.  She refused to give a statement.^[68]
27. [27]
    A third police officer gave evidence to the same effect, namely that he spoke to the same woman but she did not give a statement.^[69]

Admissions

28. [28]
    Five formal admissions were made:^[70]

1. On 2 July 2017, [MUM] provided a sworn statement to police.  It does not contain any information about sleeping locations or arrangements when she and her children stayed overnight at [AGM’s house], including any information about her having slept in the car.
2. On 8 May 2018, [MUM] spoke with Crown Prosecutor, Ronald Swanwick.  Mr Swanwick’s colleague Bridget McMahon prepared a file note.  It includes:

‘SWANWICK: Did you ever sleep in the car?

Yes.

Why?  There was an instance [that MUM described].’

3. On 9 May 2018, [MUM] was asked this question and gave this answer:

‘Q: In fact, towards the end of – towards the end of 2016, you saw [the appellant] in the street with his new girlfriend, [J], didn’t you?

A: Yes, that’s correct.’

4. On 9 May 2018, [MUM] was asked this question and give this answer:

‘Q. Okay.  And you saw him with his new girlfriend.  And you were angry.  Weren’t you?

A: I was not angry, as such, but I decided to go back to his mother’s place after seeing them.’

5. On 29 March 2021 [MUM] spoke with Crown Prosecutor Lara Soldi, Ms Soldi’s colleague Laura Knight prepared a file note.  In includes:

‘Has [MUM] slept in the car more than once? Between 1 and 2 times.

…

The times [MUM] slept in the car were a couple of months between them’”.

The pretext call

29. [29]
    MUM participated in a pre-text call to the appellant.  The transcription became Exhibit 6 at the trial.^[71]  It is not necessary to repeat all of the transcript as the relevant parts can be encapsulated in what follows:

“MUM:  I was calling you to ask you about [COM’s] matter, last time I asked you about [COM’s] matter you agreed that you did it, but now you are denying having done something.

Appellant:  As far as I’m concerned I don’t know anything at all.

MUM:  Do you?

Appellant:  I don’t know anything, and I didn’t do anything at all.

MUM:  You don’t know anything?  You don’t know anything?

Appellant:  It’s like my own child, I can’t touch my own child, I think you are crazy.

MUM:  Why did you give that answer?

Appellant:  I just gave that answer so that I can get away from you.

MUM:  That day you said you did it because you were drunk.

Appellant:  I didn’t do anything.”

The appellant’s evidence

30. [30]
    The appellant said that he had four children with MUM, the oldest being COM.  He had another daughter with a different mother.
31. [31]
    In evidence-in-chief he denied ever inserting a finger or fingers, or his penis, into COM’s vagina.^[72]  He said that COM had never slept in his room, he never told her to take her clothes off and he had never interfered with her.^[73]  He explained that his relationship with MUM was not a good relationship, but was one where they were together on and off:^[74]

“Yes, that’s true, and my experience is when she wanted me to get pregnant, she want – she shows in – we were in a good relationship, but after she get pregnant, she was always off me”.

32. [32]
    The appellant said that in the six months prior to the allegations about COM, the relationship with MUM “wasn’t good at all”.  He explained that there were discussions between them about the way to raise their children in a culturally appropriate way, but MUM started accusing him of having another girlfriend and “the relationship got worse … that I changed the topic then to ask her if we can separate in peace”.^[75]
33. [33]
    The appellant said that on occasion MUM would pick him up and take him to her place where they slept together.  He said sometimes she would change the mood and call the police, particularly when the parents accidently came there.  Sometimes she drove the appellant home, but on one occasion police took the appellant to the Logan train station.
34. [34]
    That relationship ended by the end of 2016 because he decided that it was not appropriate.^[76]  He then described MUM’s reaction to his decision to stop the relationship as being “that’s where the whole problem, the whole issue, started” which he explained:^[77]

“[Appellant]  Yeah.  That’s where the issue started.  You  know, calling me, inciting me.  You know, calling me name that you have other friends, you know.  And also telling me directly that she – she’d show me, she’ll do something bad about me.  Yeah.  But personally, me, I thought it was a kind of joke or – just, I didn’t take it seriously.  You know, I thought it was going to finish, or to – she was going to cool down, if I can mean that”.

35. [35]
    The appellant gave his version of the conversation between himself and MUM, on 28 June 2017 at ASJ’s house.  He said it was the first time he had heard of the allegation by COM that he had interfered with her.  He said he rejected her accusation completely.^[78]
36. [36]
    The appellant said he left the car where that conversation happened, and went inside the house to have a short discussion with his mother.  He gave this evidence:^[79]

“[Appellant]:  Yes.  I – I came in the house.  Yeah.  Then I had the short discussion with – with my mum.  My mother was suggesting that I should speak to her, and also, you know, to – to stop this kind of allegation with her because I – I thought – I think my mum was – was not aware that it’s going to extend to that – it’s going to – to reach [INDISTINCT] going to court, or, for instance, of accusing me to the police or something.  She was encouraging me to – to talk to – to [MUM] about that, and finish the problem, you know, we have between us – the relationship problem.

[Mr Copley]:  All right.  What did you do then?

[Appellant]:  Yes.  … I went back to the car and I told her, ‘Look, I can’t accept the things I never done.  You know, if you feel – if you want, you know, forget about this issue because it’s never happen.  And I’m not going to accept something I didn’t do’”.

37. [37]
    The appellant denied that he had apologised to MUM.  He also denied that he had asked forgiveness.^[80]
38. [38]
    The appellant said there were occasions when MUM brought the children to stay at his mother’s house.  That included sleepovers.^[81]
39. [39]
    In cross-examination the appellant was asked about the period when he stayed at ASJ’s house, which he explained was for a period of about six months from January 2017.^[82]  He was then asked whether he slept at ASJ’s house and the following passage of evidence was given:^[83]

“[Appellant]:  Yes, I used – I was sleeping there.  Yeah, that was my place of residence.  Yes.  I was living there, even the time she – she had the problem.

[Ms Soldi]:  When did she have the problem?

[Appellant]:  I don’t – I did not focus really on [ASJ’s] problem because my – I’ve been in jail for five years now and I focus more on my problem, and I don’t recall the thing – or [ASJ’s] problems”.

40. [40]
    The appellant was cross-examined on the difference between his account of when he lived with ASJ (six months), and that given by AGM (only for a few days in June).  The appellant’s answer was:^[84]

“[Appellant]:  Yeah.  Coming back to my mum, my mum live on medical treatment and she’s an elderly woman.  It is evident that, you know, she can’t remember many things.  She can’t remember many things.  She can’t remember things like me, who is young”.

41. [41]
    The appellant said that during the six months when he was living at ASJ’s house, he did not see AGM face to face,^[85] nor did he see his children except on the occasion when the accusation of rape was made.^[86]
42. [42]
    He was asked questions about whether he had any memory problems and embarked on a long and convoluted explanation about an occasion at a bank when he was providing interpreting services for some others, and he became dizzy and fell down, and was then taken to hospital.^[87]  The account included this:^[88]

“[Interpreter]:  Yeah, then I spent a few days there at the hospital, then I – I escape at the hospital because I fear medication, you know, I don’t like tablets.  Yeah.  After – after I escape the hospital I did not return back to hospital.  Yeah.  Then, also when I was in prison, a few weeks ago …

[Appellant]:  No, no, 2019”.

43. [43]
    The appellant accepted the proposition that his memory was affected by the incident he related at the hospital.^[89]  However, he maintained his account that he lived at ASJ’s house for six months.^[90]
44. [44]
    The appellant was later taken in cross-examination to the conversation he had with MUM at the time the allegation was made.  The exchange included the following:^[91]

“Ms Soldi:  Was God your witness when you told [MUM], ‘I did it’?

Interpreter:  No.  No, I did not swear to God when I was with [COM’s mother].

Ms Soldi:  You accept that you said to [MUM] ‘I did it’?

Interpreter:  Yes, for the second time, to avoid the relevant discussion, I accepted that.  But I wanted just to – to calm the situation, to …

Interpreter:  To leave me alone.

Interpreter: Yes.  To leave me alone – exactly.  To – yes, I wanted peace, to leave that situation.

Ms Soldi:  [MUM] asked you whether you had sex with your child [COM].  Do you agree?

Interpreter:  Yes, she told me.

Ms Soldi:  And so you thought it would bring peace to the situation if you said, ‘Yes, I did it’?

Interpreter:  Yeah, because the time she told me, at [ASJ’s] place, I was drunk and I wanted to go to bed.

Ms Soldi:  Sorry.  You were drunk and you wanted to go to bed?

Interpreter:  I wasn’t drunk, but I did – I had taken some beer, some alcohol and I wanted to go to bed, just to pause – to rest.

…

Interpreter:  Yeah.  The reason was, you know, I was tired, and she – she – she persisted for me to accept that, although I believe I did not do that.  When I was tired and I wanted to go to – to sleep, then – yeah.  That – that – that’s why I accepted, but I didn’t mean it.

Ms Soldi:  You went to the car to speak with [MUM], and that’s where she told you or she asked you if you had sex with your child.

Interpreter:  Yes, and the first time in a car, … I constantly refused that I did not do anything.

Ms Soldi:  And after you refused and said you did not do anything, you went back into the house?

Interpreter:  Yes, I went back to the house.  When she followed me, she persisted that I should come back again in a car to – you know, to … to accept that to – to continue conversation.

Ms Soldi:  So now you say that she followed you into the house.

Interpreter:  No.  No, she was – she was following me.  She – she didn’t follow him, but she was calling me – calling me to – to come and then finish our conversation.

Ms Soldi:  And you didn’t walk away from her?

Interpreter:  Yeah.  The second time I was inside the house, but she continually – she was continually calling me.

Ms Soldi:  How was she calling you?

Interpreter:  Yeah, she was – she was calling me like, you know, ‘Papa [COM], come we will – we need – we need to resolve this – this problem.  I can’t – I’m not going to leave this place, you know, without – without solution or understanding on this issue.’

Ms Soldi:  I don’t remember [MUM] being asked if she did that.  Have you ever said this before?

Interpreter:  Yes, I might have not said it before; however, she was persistently, you know, asking me to – to come back and to – to continue talk, and every time she was asking me the same question.  Yeah, it’s exactly the same like here – here asking him the same question.

…

Ms Soldi:  Was [MUM] being loud?  Quiet?

Interpreter:  Yeah, she is kind of loud, but not very loud.  Kind of normal but tends to be loud, calling me to – you know, persistently.

Ms Soldi:  So you didn’t think to just close the door and go inside and go to bed?

Interpreter:  You can’t sleep when someone can’t stop noise or calling you.

Ms Soldi: … When did you decide that you should go back to [MUM] and tell her you did it?

Interpreter: Yeah, following persist call from [MUM].  You know … [AGM] advised me that you should go back and resolve the problem with – with [MUM] for – for [MUM] to – to go back home – to go back home.

…

Interpreter:  I return to [MUM] most importantly because [AGM] advised me to do so.  Yeah.  Otherwise I wouldn’t – I wouldn’t’ return, went back to [MUM], without my mum’s advice.

Ms Soldi:  Did you mum advise you to just confess?

Interpreter:  Yes, yes.  [AGM] advised me to go back and accept the situation for – because I was – I recognised that I had some alcohol, so I wanted just to stop – to calm the situation that way.

Ms Soldi:  I am suggesting to you that that is not true.

Interpreter:  Yes, What is the truth then?

Ms Soldi:  I’m suggest the truth is that you said you did it because you did it.

Interpreter:  No. I can’t accept the things that I did – which I did not do.  And I repeat that I did not do that.”

45. [45]
    The appellant was then questioned by the trial judge:^[92]

“His Honour:  Do I understand you to say that on the occasion that your estranged partner alleged that your daughter had had sex – that you had sex with your daughter.  Your almost immediate reaction was, to be tired.

Interpreter:  No, For the – the first time – the first time she told me, reaction – I was shocked.  I was shocked and I was – I wasn’t in good mood.  But when she persisted for the second time, my – my reaction was to just accept it and leave it, for me to rest a little bit.”

Ground 1 –unsafe and unsatisfactory verdicts

46. [46]
    A number of points were raised to support this ground of appeal.  The significance of the medical evidence from Dr Skellern was one of them.

Reliance on the medical evidence

47. [47]
    Mr Sara submitted that the thrust of Dr Skellern’s evidence was captured in the following question and response:^[93]

“Is the normal appearance of the complainant’s genitalia consistent with no penetration ever having occurred?  ---Yes.  But it could also be consistent with having also had penetration.”

48. [48]
    Mr Sara also referred to the fact that no blood had been found on the mattress where the rapes were said to have occurred.  From these two factors it was submitted that the jury should have had a doubt as to the guilt of the appellant.
49. [49]
    In my respectful view, this contention should be rejected for a number of reasons.
50. [50]
    First, it is true to say that the evidence of Dr Skellern was that while COM’s genitalia had a normal appearance, she was very firm in her evidence that that did not mean that no penetration had occurred, whether digital or penile.  Dr Skellern said repeatedly that if there had been penetration one would not necessarily expect to see any sign of it given that the vagina itself heals quickly and completely.  Further, her examination revealed that there was some early estrogen effect in respect of COM’s genitalia, which meant that the hymen was “stretchy”.^[94]  That opinion was maintained during cross-examination, where Dr Skellern said that the normal appearance, and the absence of anything abnormal, was expected even when there was full penetration.
51. [51]
    Secondly, whilst the jury were not obliged to accept Dr Skellern’s evidence it was the only expert medical evidence on the topic and provided an explanation as to why the absence of observable injury said nothing either way on the question of penetration.  Even if that evidence was considered by the jury to be unpersuasive, they were still left with the account given by COM, the preliminary complaint evidence by COM’s mother and their consideration of the significance of the appellant’s admission to COM’s mother.
52. [52]
    Thirdly, the absence of blood being shown on the presumptive blood test on the mattress does not advance the matter any further.  COM did not suggest that she was bleeding on the bed.  Her account was that she noticed some blood in the morning when she went to the toilet, and then again at the hospital.  She only noticed the blood in the morning when she had been to the toilet and wiped herself.  In cross-examination she indicated that was only a small amount.  There was more blood when she was at the hospital.^[95]
53. [53]
    Given that evidence, the jury were not compelled to conclude that the absence of blood on the mattress impacted so significantly on COM’s evidence, that there should be a doubt as to guilt.
54. [54]
    Fourthly, Mr Sara argued by reference to M v The Queen^[96] that the jury should have entertained a doubt as to whether penetration had occurred, based on Dr Skellern’s evidence.  Mr Sara contended that the conclusion in M, namely that the medical evidence did not advance the prosecution case and therefore the jury should have entertained a doubt, was applicable in the present case.  That, in my view, does not follow.
55. [55]
    In M two medical practitioners who had examined the complainant gave evidence, each referring to the unruptured state of the complainant’s hymen.  One found that the state of the complainant’s hymen was inconsistent with rape, which she understood to be “forced vaginal penetration”.  The other said that there was no evidence of physical penetration one way or the other.  M was dealing with a particular fact situation, and what was said^[97] was not laid down as a matter of legal principle.  The particular fact situation included that the complainant in M gave evidence as to penetration which did not go beyond an assertion that it felt as though there had been complete penetration.  There was no corroboration.  Further, one of the medical experts in that case conceded that the unruptured state of the hymen was inconsistent with what she understood as the definition of rape, namely “forced vaginal penetration”.
56. [56]
    That factual situation in M is distinct from that in the current case.  Here COM gave evidence that there was actual penetration, both digital and penile.  That evidence went well beyond mere assertion.  There was the physical evidence of penetration in the form of blood seen by COM.  The preliminary complaint evidence of MUM lent support to the veracity of COM’s account.  Further, Dr Skellern’s evidence did not concede any inconsistency in the way in which was the case of one of the doctors in M.
57. [57]
    I pause to note that this argument was advanced in the appeal which resulted in the retrial and was rejected by the Court.^[98]  On that occasion Dr Skellern’s evidence that the lack of observable injury did not weigh one way or the other was unchallenged.^[99]  On this trial Dr Skellern was challenged but adhered to that opinion.  Therefore the state of the evidence was the same as at the first appeal.
58. [58]
    Fifthly, the jury’s acceptance of COM as a credible witness derived some support from the preliminary complaint evidence.  On all of the evidence, including that of MUM and the appellant himself, there was a complaint by COM that the appellant had assaulted her in a way which meant that he had sex with COM: see paragraphs [8] to [10] above.  The defence case was not that COM’s complaint was about some lesser form of assault than penetration; it was that it was all fictional.
59. [59]
    Sixthly, the jury were directed that a conclusion of guilt depended upon acceptance of the evidence of COM.^[100]  The trial judge dealt with the medical evidence, directing the jury that it was up to them as to how much weight they were to give to Dr Skellern’s opinion and what importance they gave it with respect to the issues in the trial.^[101]  The final direction with respect to Dr Skellern’s evidence was that the jury “ought not reject Dr Skellern’s opinion unless the matters on which it is based have not been proved to your satisfaction or you consider that there is other evidence which cast doubt on her view”.^[102]
60. [60]
    In my view, the state of the medical evidence did not compel the jury to entertain a doubt as to guilt.  It was open to the jury to accept that evidence in a way that was neutral, yet accept COM’s evidence that the offences occurred.

Implausibility of the offending

61. [61]
    A second point concerned what was said to be the implausibility that the appellant would rape his child when AGM was in the nearby bedroom.  In that respect attention was drawn to the evidence that the house was a two bedroom house, and the bedrooms were side by side.  The submission by Mr Sara was that the circumstances were similar to those in Pell v The Queen.^[103]
62. [62]
    The implausibility argument was one advanced to the jury.  In fact, the implausibility referred to was the first point raised by defence counsel with the jury.^[104]  Of course, by the time of closing addresses the jury had already heard the evidence and, no doubt would have pondered the fact that it was a small house where the bedrooms were side by side, and the alleged offences occurred while AGM was there.
63. [63]
    This is not a case like Pell.  There the turning point was the unchallenged evidence given by one witness, acceptance of which was wholly inconsistent with the version of events put forward by the prosecution.  That is not the case here.  On this point all one has is the implausibility of the event happening in a small house where others are present.  Unfortunately, experience shows that those who offend often do so in a brazen manner and in locations and occasions where others are in close proximity.
64. [64]
    Further, there is nothing in the evidence to suggest that AGM was, in the particular circumstances, so likely to detect the appellant in the course of the alleged offending as to make it improbable that it could have occurred.
65. [65]
    This point is simply one factor of many which the jury had to consider.

MUM’s statement made without an interpreter

66. [66]
    Another point raised was that there was forensic disadvantage to the defence because MUM gave a statement to police without the benefit of an interpreter.^[105]  It was suggested that the disadvantage was that the defence was denied the opportunity of truly testing the statement.
67. [67]
    In my respectful view, there are significant difficulties confronting acceptance of this contention.
68. [68]
    First, this was a re-trial, the first convictions having been quashed because of a miscarriage of justice arising from inadequate interpretation of the proceedings for the benefit of the appellant.^[106]  It is evident from this court’s decision in TAN that MUM gave evidence through an interpreter because her first language was Kirundi, not English.^[107]  Of course, that must have been known to the appellant through his contact over the years with MUM.  In those circumstances there was ample opportunity to test what was said in MUM’s statement, on a voir dire or at the first trial.
69. [69]
    Secondly, when MUM was cross-examined, she was asked about her police statement, including being asked whether she had read her statement recently.^[108]  The cross-examiner put to MUM that certain things said in the statement were, in fact, true.^[109]  In that sense the defence propounded the statement as accurate.
70. [70]
    Thirdly, the cross-examination also sought to make the point that what was said in that police statement was important because it left out things MUM now said in oral evidence.^[110]  The supposed advantage of testing the statement because it was not made with the benefit of an interpreter must be doubted given that one of the main attacks in cross-examination was by reference to things that were not in the statement as compared with her oral evidence.
71. [71]
    Fourthly, the defence no doubt had a copy of the police statement given by AGM.^[111]  In that statement paragraph 2 explains that she did not speak English and had provided the statement via a Kirundi interpreter.  If MUM gave her statement without the benefit of an interpreter, her statement would not have contained a similar paragraph.  So much must have been obvious to the defence team from an early time.
72. [72]
    Fifthly, in the course of cross-examination defence counsel asked whether she could understand the question being asked in English.^[112]  She replied “No”, but was then cross-examined about the significant time she had spent in Australia, and the work she had undertaken, eventually culminating in it being put to her that she would need to be reasonably proficient in English in order to undertake that employment.^[113]  The response was “Yeah.  Normally, I do speak and understand, but it’s not my native language”.^[114]  Having established that, it is difficult to see what forensic disadvantage remained from the fact that the police statement was given without interpreter.
73. [73]
    Sixthly, if it be the case that the defence did not realise until a re-examination of MUM that her statement to the police had been given without the benefit of an interpreter, there was then still time to ask that further cross-examination be permitted and the statement tested, on a voir dire or otherwise.  No such application was made.
74. [74]
    I am unable to conclude that any prejudice has been established.  For the reasons given above it is entirely more likely that a forensic decision was made as to how to make use of the statement in cross-examination.

Other matters

75. [75]
    At the heart of the evidence for the prosecution was the account given by COM.  The police interview contained the sort of inconsistencies and explanations one has become accustomed to seeing where very young complainants are involved in a police interview about matters of such a personal nature as sexual offending by a parent or relative.  COM was only about seven when interviewed.  There can be no reasonable expectation that a child as young as that is a perfect historian, especially given the stressful situation in which they find themselves.  Partial explanations, inconsistent explanations, incomplete memory and idiosyncratic descriptions are all expected features of such an account.
76. [76]
    However, COM gave a clear and detailed account of the two offences with which the appellant was charged.  In cross-examination she adhered to that account.  Moreover, she resisted any suggestion that she invented her version, it being put to her that she was an unmitigated liar who had made up the story for a variety of reasons.
77. [77]
    The jury had the advantage of hearing and seeing COM’s evidence.  That is not an advantage this Court enjoys.
78. [78]
    The jury also had the advantage of seeing and hearing the appellant’s evidence, particularly that set out in paragraphs [44] to [45] above.  That contained an eventual admission from him that when confronted by MUM he had admitted the assaults on COM.  Of course, he had explanations to give in respect of why he said that, including that he was being repeatedly questioned by MUM, urged to keep the peace by AGM, tired or under the influence of alcohol.  They were all matters for the jury to assess, particularly as they had the benefit of seeing the appellant give evidence.  It was open to them to reach the conclusion that the appellant did, in fact, admit the offences when confronted by MUM.
79. [79]
    Added to that is the appellant’s failure, in the pre-text telephone conversation, to deny the suggestion that he agreed that he “did it”.  One obvious limitation on the jury’s use of the pre-text call in that way was the fact that the reference was to the appellant having done “it” without that being specifically identified as either of the offences.  To that extent the jury could have concluded that the reference to “it” was tied to the conversation between MUM and the appellant when he was confronted with COM’s complaint.  One can add to that, the fact that the jury could have accepted the appellant’s admission in cross-examination that he had admitted to MUM that he had offended in the way COM said.  Once those pieces of evidence were put together, it was open to the jury to conclude that what was being referred to in the pre-text call was the offending conduct.  Coupled with his admissions in cross-examination, it was open to the jury to conclude that that was another occasion where the appellant did not deny what was alleged.
80. [80]
    Thus, the evidence from the appellant himself could be regarded by the jury as supplying substantial support for COM’s evidence.
81. [81]
    Support for acceptance of COM as a credible witness could also have been derived by the jury from the preliminary complaint evidence.  What COM told MUM was consistent with COM’s evidence.
82. [82]
    When weighing all of that evidence, the jury would also weigh the medical evidence of Dr Skellern, and the various inconsistencies and urged implausibilities from the evidence.
83. [83]
    This Court’s assessment of the evidence should proceed on the basis that the jury was in a position to evaluate both “conflicts and imperfections” in the evidence at the trial.^[115]  Further, this court must take full regard to the fact that the jury is the constitutional body entrusted with the primary responsibility of determining guilt or innocent, and that it has had the benefit of having seen and heard the witnesses give evidence.^[116]
84. [84]
    In my view, on a review of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences.

Ground 2 – prejudicial evidence

85. [85]
    At the completion of the appellant’s evidence an application was made to declare a mistrial on the basis that evidence had emerged during the cross-examination of the appellant, which would have a prejudicial effect on the jury and could not be cured by a direction.  Reliance was placed on two passages where the appellant referred to having been in prison.  The first was “I’ve been in jail for five years now”,^[117] an answer given in a non-responsive way when he was asked about his time living with ASJ.  The second was when he said “And although I spent now five years in …”,^[118] only to be cut off by the cross-examiner telling him not to speak about it.  Once again that was a matter advanced in a non-responsive way to the questions being asked.
86. [86]
    In the course of submissions on that application, the trial judge noted that the appellant had made a number of such comments, and on every occasion, it was in the context of him being non-responsive to the question asked.  Further, the prosecutor pointed out that AGM had mentioned that he had been incarcerated.
87. [87]
    The trial judge refused the application, finding that it was a matter upon which the jury could be directed, and that the prejudice was not so great that it would result in a miscarriage of justice.  His Honour noted that the appellant had volunteered the information on a number of occasions when being non-responsive in his answers.^[119]
88. [88]
    Ultimately the trial judge directed the jury in respect of that issue:^[120]

“You heard testimony from the defendant and from his mother that referred to the defendant having been in custody.  When such things were said by either of them, their statements in that regard were non-responsive to the questions that were being asked and were irrelevant.  I direct you to ignore such testimony.  It is of absolutely no relevance to your task of determining the defendant’s guilt and you should not draw any adverse inference against the defendant because of it.”

89. [89]
    No further redirections on that issue were sought.
90. [90]
    Before this Court Mr Sara, appearing pro bono on behalf of the appellant, contended that significant prejudicial evidence^[121] had been left to the jury.  Implicitly, he submitted that in the circumstances a miscarriage of justice was caused.
91. [91]
    In my view, this contention should be rejected.  That evidence was not left to the jury.  It was the subject of the specific direction set out in paragraph [88] above.
92. [92]
    That direction was very clear in that the jury were instructed that the evidence was irrelevant and it was to be ignored, and further no adverse inference could be drawn against the appellant because of it.
93. [93]
    That direction immediately followed the trial judge giving a direction concerning the fact that there had been mention of an earlier trial:^[122]

“Now, on a different topic, you may have come to appreciate, from some things that were said during the course of the trial that there was an earlier trail of these charges.  You should not speculate about what might have happened at that trial or why there is a retrial.  Trials can be stopped because of an error or because of something quite unforeseen.  Whatever the reason, it has no continuing relevance.  You are to consider the case, as I have said, based upon the evidence placed before you in this Courtroom and whilst I am giving this type of direction, there is another one I will give as well.”

94. [94]
    The other occasions referred to by the trial judge included the following.
95. [95]
    When AGM was giving evidence in chief, she was asked about the last occasion in 2017 when the children came to stay.  She responded (via the interpreter):

“I have no recollection.  It’s been a long time since the incident and since my son is incarcerated.  I cannot recollect the dates or the details.  Even my age, I don’t know”.^[123]

The reference to the appellant being “incarcerated” was not responsive to the question and was not the subject of objection.

96. [96]
    In cross-examination AGM was asked why the appellant’s bed was tipped up on its side in his bedroom.  She answered that it had been put there by her, and then she volunteered that the appellant “had been arrested and taken into custody”.^[124]  That comment was non-responsive to the question, but no step was taken to have it excluded.
97. [97]
    The appellant himself volunteered that he had been in prison by the answer he gave about memory difficulties and being in hospital: see paragraph [42] above.  That fact was volunteered in a non-responsive way.
98. [98]
    As the trial judge pointed out to the jury, those occasions were much the same as those the subject of the application for mistrial, in that they were non-responsive comments volunteered by AGM or the appellant.
99. [99]
    In my respectful view, given the way in which the trial was conducted, the fact that the jury knew it was a retrial, and the fact that the several references to him being in custody were all volunteered and non-responsive, no real risk of prejudice was raised.  Any such prejudice was eliminated by the trial judge’s specific directions that such evidence was irrelevant and to be put aside.

Other grounds

100. [100]
     Two additional points were raised in Mr Sara’s outline.  They can be dealt with relatively briefly.
101. [101]
     The first was made the subject of ground 3 of the appeal, namely that there was a limited opportunity to apply for jury directions.  Nothing was said in support of this ground and, in my view, it can be dismissed.  A perusal of the transcript of the trial does not suggest that there was any lack of opportunity to seek directions and re-directions.
102. [102]
     The second point was that it was doubtful that the Crown could prove that the events took place within the time specified in the indictment, namely 1 May 2017 to 28 June 2017.  Beyond stating that the point was said to be important because an application to extend the date range was refused, nothing more was advanced on this ground.
103. [103]
     This point was raised by defence counsel when he addressed the jury.^[125]  It was put this way:^[126]

“The Crown case is that the alleged rape occurred between the 1^st of May and the 28^th of June 2017.  That is roughly, the Crown alleges, eight weeks before the day that [the appellant] was confronted at [ASJ’s] house.  So even on the Crown evidence that [MUM] slept in the car, [MUM] gave evidence that the pizza night was the last time the kids were there at [AGM’s], three to six weeks before June 28.  And we know from those admissions that are contained within exhibit 11 that [MUM] has said that there were two times that she slept in the car and that there were a couple of months between those occasions.

…

But even on the Crown case, they can’t show beyond a reasonable doubt that the occasion particularised, May to June 2017, was the night of any alleged offence because [MUM] said she slept in a car on the pizza night for three to six weeks before the complaint.  The complainant said that wasn’t the occasion of the offence, the pizza night.  And [MUM] also said she slept in the car a couple of months earlier, you’d think before the dates in the indictment.”

104. [104]
     That submission drew a response from the trial judge in the course of his summing up, in these terms:^[127]

“Defence counsel also took you through some chronology of events in relation to pizza night and sleeping in car, etcetera.  I will not repeat all of that, but I should instruct you in this, ladies and gentlemen.  You would have noted from when I gave you the elements of the offence, the dates do not form part of the elements of the offence.  The dates on the charge are there as a guide, effectively, but they do not form part of the elements that must be proved beyond reasonable doubt.”

105. [105]
     Following completion of the summing up defence counsel urged once again that the jury be told that the Crown had to prove that the offence fell within the dates.^[128]  The trial judge declined to do so, again pointing out that the dates were just particulars and not elements of the offence.
106. [106]
     In my respectful view, the trial judge was correct in ruling that the dates were not elements of offence.^[129]
107. [107]
     The trial was not conducted on the basis that the offence occurred on a particular date or within a particular timeframe.  It was litigated on the basis that the offending occurred in a three to six week period prior to the complaint being made by COM to MUM.  For its part, the defence case was litigated on the basis that COM was lying about the events and the appellant had not been at AGM’s house in the first six months of 2017.
108. [108]
     In the circumstances, to direct the jury that it had to be proven that the offending to have occurred between the dates in the indictment would have been to undermine the defence case and be unfair to the prosecution.  No such a direction was warranted, and it has not been demonstrated that there was any miscarriage of justice resulting from such a direction not having been given.

Conclusion

109. [109]
     For the reasons which I have expressed above, the appeal lacks merit and should be dismissed.  I propose the following order:

1. Appeal dismissed.

110. [110]
     DALTON JA:  I agree with the order proposed by Morrison JA, and with his reasons.
111. [111]
     KELLY J:  I agree with the reasons of Morrison JA and with the order proposed by his Honour.