R v Stephenson[2022] QCA 78

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Morrison JA and with the order proposed by his Honour.
2. [2]
   MORRISON JA:  The appellant was convicted after a three-day trial on two counts:

   1. (a)
      Count 1 – maintaining a sexual relationship with a child under 16 years, a domestic violence offence; and
   2. (b)
      Count 2 – common assault, a domestic violence offence.
3. [3]
   The complainant in each case (COM) was the son of the appellant’s sister’s de-facto partner.  COM was aged between five and seven years old at the time of Count 2.
4. [4]
   Particulars of the maintaining were supplied.  They alleged that between 3 January 2016 and 8 August 2018 the appellant maintained a sexual relationship with COM by carrying out the following acts on or with COM:

   1. (a)
      had a bath with him;
   2. (b)
      exposed his penis to COM;
   3. (c)
      touched COM’s penis;
   4. (d)
      had COM touch the appellant’s penis;
   5. (e)
      had COM touch the appellant’s bottom;
   6. (f)
      touched his (the appellant’s) penis in front of COM; and
   7. (g)
      pulled down COM’s pants.
5. [5]
   The particulars of the common assault charge were that the appellant smacked COM on the arm with his hand.
6. [6]
   The appellant challenges his verdicts on all counts, on the ground that the verdicts were unreasonable and not supported by the evidence.

Applicable principles

7. [7]
   The principles to apply when a verdict is challenged on the basis that it is unreasonable are well known.  They were summarised in R v Maguire:^[1]

7. “[16]
   In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
8. [17]
   The role of the appellate court was recently restated in Pell v The Queen:

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

7. [18]
   The High Court restated the pre-eminence of the jury in R v Baden-Clay.  As summarised by this Court recently in R v Sun, in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”, in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”

8. [8]
   In R v Miller^[2] this Court said:

7. “[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.”

9. [9]
   Therefore, I turn to an examination of the relevant evidence.

Circumstances of the offending

10. [10]
    COM gave evidence in the form of a police interview admitted under s 93A of the Evidence Act 1977 (Qld), and oral evidence pursuant to s 21AK of that Act.

Police interview

11. [11]
    COM was about seven and a-half years old, and in year two, when he was interviewed by police. He told the police interviewer that:

    1. (a)
       he and the appellant “normally had baths together and it’s not the right thing to do”; he qualified that saying, “That’s what my step-mum said”;^[3]
    2. (b)
       he and the appellant would undress and then “touch our … parts, like I touch his parts, he touches my parts, he touches his parts, and I touch my parts”;^[4]
    3. (c)
       the activity was limited to touching each other’s “parts” in the way he described;^[5]
    4. (d)
       he told his mother “the secret that my uncle told me not to tell”;^[6]
    5. (e)
       it “normally happens every time I’m there”;^[7]
    6. (f)
       the last time something happened was when the appellant pulled COM’s pants down and then his own pants down, so they were naked; nothing else happened;^[8]
    7. (g)
       that when the appellant and COM got undressed, “he normally just touches them … he doesn’t do anything else”;^[9]
    8. (h)
       on occasions COM would take all his clothes off, and “normally [the appellant] takes them off after me”;^[10]
    9. (i)
       the appellant touched COM’s “parts” with his bare hands; COM did not want to use the real name for the “parts”;^[11]
    10. (j)
        when the appellant touched his own parts they were the “same parts I said”;^[12] COM said that the appellant “fiddles around with them”, meaning he “flicks it”; he identified that part as the “doodle”, which he said “goes up and down” when the appellant flicked it;^[13] he described the doodle as the part used to pee;^[14]
    11. (k)
        the appellant had told him not to tell anyone “or else I’ll be in big trouble”;^[15]
    12. (l)
        when COM told his mother, the appellant overheard it;^[16] the appellant “Got up me” … “Cause he knew it wasn’t the right thing to do”; the appellant smacked him on the arm;^[17]
    13. (m)
        when he told his mother she asked, “is it like about doodle and butt?”, and COM said yes;^[18]
    14. (n)
        he told his mother because, “Well, she normally does it with me as well” … “Cause we normally just have showers together”;^[19]
    15. (o)
        that COM and the appellant had fun together playing with each other’s parts while naked;^[20] it happened “all the time when I go over to his house”;^[21]
    16. (p)
        it started when COM was about five;^[22] the appellant taught COM how to touch his parts;^[23] and
    17. (q)
        the appellant had not done anything beyond touching each other’s parts.^[24]

Oral evidence

12. [12]
    COM was eight when he gave oral evidence.  He affirmed that what he told the police was correct.
13. [13]
    In evidence in chief COM said that:

    1. (a)
       he had baths with the appellant;^[25] the appellant was naked when in the bath;^[26]
    2. (b)
       he and the appellant touched each other’s penis;^[27]
    3. (c)
       the appellant touched him where his penis and bottom are; he squeezed the penis with his bare hand;^[28] he touched his bottom by pushing on it with his hand;^[29]
    4. (d)
       COM touched the appellant by squeezing his penis and playing with his bottom;^[30]
    5. (e)
       he was touched in the appellant’s bedroom; this involved being squeezed on the penis and being rubbed on the bottom;^[31]
    6. (f)
       on one occasion in the bedroom the appellant pulled COM’s pants down; COM “got mad at [the appellant] and pulled his pants down”;^[32] and
    7. (g)
       on one occasion the appellant smacked COM on the arm, using his hand.^[33]
14. [14]
    In cross-examination the relevant points which emerged were as follows:

    1. (a)
       COM had been in “a little bit of trouble… over the years” at his school for lying to teachers;^[34]

       1. on one occasion he had been given a note to take home to his parents about having been sent to the “seal room” (a room at the school where one had to sit and wait if in trouble) but he threw the note away, then lied to the teacher about having taken it home;^[35]
       2. on another occasion he had hidden a book which the teachers kept that related to playground behaviour, and lied to a teacher about who the book was about;^[36] when the teacher caught him out, he admitted having hidden the book and that it was his book;^[37]
       3. on another occasion he lied to a teacher about how he had obtained a puppet which he had in his hand;^[38]
       4. in March 2019 he lied to a teacher about his involvement in smearing poo on toilet walls;^[39] COM ended up admitting he was involved;^[40]
    2. (b)
       COM’s sister was often at the appellant’s house when COM was there, each being looked after by the appellant; and a lot of the times the sister was at the house when COM had a bath;^[41]
    3. (c)
       sometimes when he slept at the appellant’s house he got scared at night and got into the appellant’s bed; the sister did the same sometimes;^[42]
    4. (d)
       the appellant did not interfere with COM’s clothing when he was sleeping in the appellant’s bed; nor did he touch COM’s penis while in the bed at night;^[43]
    5. (e)
       most of the time COM slept in the appellant’s bed;^[44]
    6. (f)
       on one occasion when he was seven, COM lied to the appellant about how he came to have a rubber ball from the seal room;^[45]
    7. (g)
       on another occasion he lied about taking a small tomato sauce packet from a fish and chip shop;^[46]
    8. (h)
       in October 2016 he was in trouble at school for showing his penis to another boy when they were in the toilet;^[47]
    9. (i)
       the only times that COM had a bath at the appellant’s house was when he was staying over at that house;^[48]
    10. (j)
        COM agreed that at no time did the appellant and COM get into the bath together, but then qualified that by saying that the appellant did so when the sister was not there;^[49] and
    11. (k)
        COM denied the propositions put to him that: (i) the appellant never touched COM’s penis; (ii) COM never touched the appellant’s penis; (iii) the appellant never smacked him.^[50]

Evidence of COM’s mother

15. [15]
    COM’s mother gave evidence about the routine she had for calling COM when he was being looked after by the appellant or COM’s biological father and his partner.  She was aware that COM stayed over at the appellant’s house, and on those occasions, she would call the appellant so she could speak to COM.
16. [16]
    One day COM told her that he had a “secret” to tell her.  It was that he and the appellant sometimes had baths together and that “they touched each other’s doodles and bums, and that [the appellant] wanted to do it, and that it was fun”.^[51]
17. [17]
    The mother then called COM’s father.
18. [18]
    In cross-examination she was taken to the fact that she had amended her police statement to say that it was COM who referred to doodle and bum, and not her who had asked was it touching on the doodle or bum.  She denied that the change was because she realised the danger of suggesting things to a child.^[52]
19. [19]
    Nothing else relevant arose from the cross-examination.

Evidence of COM’s father

20. [20]
    COM’s father said that there were many times that the appellant looked after COM without the sister.^[53]  He got a call from COM’s mother (his ex-wife at the time) and that could have been in August 2018.
21. [21]
    Nothing relevant emerged in cross-examination.

Evidence of the appellant’s sister (X)

22. [22]
    At the time of the events X was the partner of COM’s father.
23. [23]
    She said she was a good friend of COM’s mother.  The appellant looked after both COM and his sister, and on occasions COM by himself.^[54]  There were occasions when COM stayed overnight with the appellant.^[55]
24. [24]
    X got a call from COM’s father on 7 August 2018 as a result of which she drove over to the appellant’s house and picked up COM.  COM was upset when she arrived and “he was saying he wasn’t lying”.  She could not remember the details of what COM said, except that “he liked his bathtime with [the appellant] and that it felt nice”.^[56]
25. [25]
    When she and COM arrived home X recorded a conversation with COM on her mobile phone.^[57]  In that conversation COM said:

    1. (a)
       he and the appellant had baths together during which COM and the appellant would “play, and hug”, and the appellant would sometimes get COM to touch him “normally down here, and here”; and
    2. (b)
       such events only happened in the bath, and not when COM’s sister was there.
26. [26]
    In cross-examination X said:

    1. (a)
       COM was crying when she arrived, and saying he was not lying;^[58]
    2. (b)
       COM had some behavioural issues at school, around when he was in prep, that included pooing on things and smearing it;^[59]
    3. (c)
       they received advice that poo-smearing could be an indication of child abuse, and as a result COM had eight counselling sessions with a psychologist;^[60] it was possible that the appellant was aware of the counselling;^[61] and
    4. (d)
       she did not agree that when COM came into her care he was behaving poorly,^[62] saying he was “a ratbag kid” just doing “general boy stuff”.^[63]

Formal admissions

27. [27]
    There were two formal admissions.  One was that COM was born on 4 January 2011.  The other was that school records revealed an occasion on 26 October 2016 when COM ate a Nutri-Grain bar that belonged to another child, and lied, saying it was his.

The appellant’s submissions

28. [28]
    The appellant submissions say that his appeal is because the alleged events never happened.  In support of that the appellant refers to a number of factors:

    1. (a)
       the changes in COM’s story from his first police interview up to his trial testimony;
    2. (b)
       mistakes made by the police investigators;
    3. (c)
       mistakes made by his lawyers;
    4. (d)
       COM was a liar;
    5. (e)
       he did not meet COM until April 2016, but the charges started at 3 January 2016;
    6. (f)
       he was charged with child grooming, but that charge was dropped; that should have been mentioned at the trial;
    7. (g)
       COM was not asked in the police interview to say what the appellant looked like when he was naked; if he had seen the appellant naked surely he could identify physical marks and features of the appellant’s anatomy;
    8. (h)
       he has evidence in the form of text messages occurring with X while COM was in the bath; his lawyers did not use that evidence at the trial;
    9. (i)
       there were times when COM was still in the bath when the others arrived to collect him; that shows the appellant was not in the bath with COM; and
    10. (j)
        there were a number of alleged inconsistencies and errors made in the allegations.
29. [29]
    One can put aside the points that raise errors on the part of the investigating police, errors on the part of the appellant’s lawyers, the dropped charge of child grooming, the failure to ask in the police interview to say what the appellant looked like when he was naked, the text messages not used at the trial, and the fact that the appellant now says times when COM was still in the bath when the others arrived to collect him.  None of those matters were raised at the trial.  In most cases there was good reason not to raise them.  There is no case based on incompetence of the appellant’s lawyers.  Still others of those points are matters that depend on the appellant’s version of events.  He did not give or call evidence at the trial and cannot now introduce such evidence.  The nature of his case can be gleaned from what was put by his lawyers.

Inconsistencies

30. [30]
    The alleged inconsistencies form the bulk of the complaints.^[64]  These include:

    1. (a)
       COM getting the number of the appellant’s house wrong when asked by police and saying a photo showed the back of the house when the photo shows the letterbox;^[65]
    2. (b)
       that COM said it was his mother who referred to doodle and bum, but then incorporated it into his story;^[66]
    3. (c)
       that COM said he was dropped off at his house after the disclosure of the events;^[67]
    4. (d)
       that COM’s version was prompted by the police interviewer’s questions;^[68]
    5. (e)
       the change as to whether COM’s sister was there when COM had a bath with the appellant;^[69] and
    6. (f)
       that COM did not mention where in the house he was smacked, but then said the lounge chair.^[70]
31. [31]
    All the inconsistencies relied on were vigorously examined at the trial and, to the extent that experienced trial counsel thought they had merit,^[71] the jury were urged to accumulate them all and conclude that COM was a witness without credit or reliability.
32. [32]
    The essence of the attack on COM’s evidence is that he was a compulsive liar who could not be believed.  The jury evidently concluded otherwise.  The jury were the constitutional arbiters of fact and had the distinct advantage over this Court in that they saw and heard all witnesses, but especially COM.  In that respect they were better placed to assess the inconsistencies and alleged impact of his lies.
33. [33]
    It must be recalled that the lies were those of a very young child.  Those told to teachers while he was in prep and just beyond are the sort of lies that common experience might have told the jury that all children might tell.  They were hardly to be equated with lying about whether there was sexual assault.
34. [34]
    Further, the evidence at trial was that COM’s compulsive behaviour resulted in counselling because it was a possible indicator of sexual abuse.  Why then would the jury have been compelled to conclude that any lies told by COM were such that they should disbelieve him in respect of the allegations against the appellant.
35. [35]
    Nothing has been raised about the inconsistencies that would compel the view that the jury had to reject COM’s evidence or have such a doubt about it that they could not reach a state of satisfaction of guilt beyond reasonable doubt.

Other matters of complaint

36. [36]
    The appellant asserts that it was the police interviewer who first used the word “secret” and COM adopted it thereafter.^[72]  On 7 August COM told his mother that he had a “secret” to tell.^[73]  The mother spoke to COM’s father and the father then spoke to X.^[74]  After that conversation X collected COM and took him home where she recorded what COM said.  X then took COM to the police station where he was interviewed.  Given that sequence of events there is reason to infer that it was COM who was the actual source of the word “secret” and the police interviewer heard it from X.
37. [37]
    Various contentions are raised but they depend upon an assertion by the appellant of evidence that was not adduced at the trial.^[75]  The appellant’s case was put at the trial by way of cross-examination of witnesses and address to the jury.  The appellant did not give or call evidence.  He cannot put a version of events in now.
38. [38]
    Yet other contentions are made as to whether things can be proved or were likely, or a criticism about the way evidence was adduced.  These are arguments that do not raise any issue on the appeal.^[76]  To the extent that challenges could be made to the way evidence was adduced, or whether that evidence could lead to a particular conclusion, they were matters for the trial, where the appellant was represented by experienced defence lawyers.  If there was anything to be said for these points it would have been said.  None of them have merit.
39. [39]
    Four matters were raised concerning the manner of the appellant’s interview by police and some of its contents.^[77]  The interview was not part of the evidence adduced at trial, nor were the interviewing officers called. These complaints are irrelevant to any issue in the appeal.
40. [40]
    One matter is raised concerning the evidence at the first trial.^[78]  The appellant says the video played at the second trial was not the same as that played at the first trial.  The format of the video to be played at the second trial was, no doubt, a matter well known to the appellant’s lawyers.  No challenge was made, nor point raised about admissibility.  This point is irrelevant to the issues on the appeal.
41. [41]
    Yet other submissions concern the lack of consent from the appellant for the call made to him by X and the content of that call.^[79]  That was the pretext call.  Of course, the appellant’s consent was not sought.  The call was not adduced as part of the evidence.  There is nothing in this point.
42. [42]
    The appellant asserts that after COM’s father and X gave evidence, they did not stay at the trial to hear the outcome.^[80]  There is nothing of merit in this point.
43. [43]
    A submission is made that a mistake was made as to the appellant’s precise age, in each case calling him 41 when he was actually 42.^[81]  One was during the sentencing, which is not part of the appeal.  In any event the error, if there be an error, is irrelevant to any issue on the appeal.
44. [44]
    The appellant also complains that the police have not investigated COM’s mother in respect of an alleged assertion by COM in his police interview.^[82]  There is no merit in this point.

Conclusion

45. [45]
    Nothing raised by the appellant compels the conclusion that it was not open to the jury to accept COM as a reliable and credible witness.  His evidence contained various inconsistencies, but these were thoroughly examined at the trial and the jury were well placed to assess them.  Some of them are matters that do not go to the substance of the account told by COM.  For example, not identifying a photo of the house as being the front as opposed to the back, getting the number of the house wrong, being unsure as to the precise sequence of peripheral events, and not being sure whose phone was used to call.
46. [46]
    The submission that the police interviewer was the first to use the word “secret” when speaking to COM, and that COM then incorporated it into his account, does not correspond with the evidence that the jury could accept; see paragraph [35].
47. [47]
    The jury could well conclude that the attack on COM’s credibility and reliability based on his lies was not decisive.  The lies told at school were the lies of a very young child and told to escape trouble at the hands of an authority figure.  Furthermore, the incidents of lying at school showed that COM did, in fact, understand the difference between the truth and lies.  The jury’s life experience may well have been that many young children tell such lies, but it does not mean they are untruthful when it comes to serious matters such as being sexually assaulted.
48. [48]
    Further, that COM exhibited some behavioural issues was not something that necessarily compelled rejection of his evidence when that evidence concerned what had been done to him by the appellant.  The timing of the behavioural issues was when he was very young and around prep year at school.  There was no expert evidence as to the behaviour itself, nor what that behaviour signified.  Ultimately the suggestion that it might be a signifier of child abuse was ambiguous in the sense that it was second-hand evidence, and open to the possibility that it was the appellant’s conduct that was the cause.  The description of COM by X was something the jury could have accepted as a rational description of a fairly normal young boy: “he was a ratbag of a boy but he wasn't doing any of the stranger things.  Just general boy stuff.”
49. [49]
    In my view, it was open to the jury to accept COM as a credible and reliable witness.  He showed no evident propensity to embellish; several times he was pressed in the interview as to whether the conduct went beyond touching, and each time he said it did not.  His account to the police was consistent with the oral evidence in terms of what was done and by whom and where.  He freely admitted lying to teachers and why he did so.  And, his credibility was supported by the preliminary complaint evidence, especially the phone recording, and the mother’s evidence that COM had a secret he wanted to tell.  It was open to the jury to accept the mother’s evidence that she was not the one who suggested the words “doodle” and “bum” when speaking to COM.
50. [50]
    It was, in my view, open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.  The appeal should be dismissed.  I propose the following order:

1. 1.Appeal dismissed.

51. [51]
    BODDICE J:  Morrison JA has comprehensively summarised the evidence given at trial.  I gratefully adopt that summary.
52. [52]
    An independent examination of the evidence given at trial establishes that it was open to the jury to be satisfied of the appellant’s guilt of each count, beyond reasonable doubt.
53. [53]
    The discrepancies and other matters relied upon by the appellant, neither individually nor collectively, are such that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt.
54. [54]
    The verdicts were not unreasonable.
55. [55]
    I agree with the order proposed by Morrison JA.