R v SDY[2023] QCA 28

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of McMurdo JA, and the orders his Honour proposes.
2. [2]
   McMURDO JA:  After a two day jury trial in the District Court, the appellant was convicted of one count of indecently dealing with a child who was under 12 years old and under his care, and one count of the rape of that child.  The two counts arose from the same incident, which was said to have occurred between 19 September and 25 December 2019 and at the appellant’s house.  The complainant, who was a seven year old girl, was the daughter of a couple who were close friends of the appellant and his wife.
3. [3]
   There are two grounds of appeal.  The first is that the trial judge wrongly refused to admit certain evidence.  The second ground is that the verdicts were unreasonable, that is to say that it was not open to the jury to be satisfied of the appellant’s guilt beyond a reasonable doubt.^[1]  For the reasons that follow, upon the basis of the first ground, the appeal should be allowed and a re-trial ordered.

The evidence at the trial

4. [4]
   The friendship between the appellant and his wife and the complainant’s father (R) and her mother (E) was such that they spent most weekends together at the appellant’s house.  The appellant and his wife would look after the complainant in the absence of her parents and she often slept over there.
5. [5]
   The complainant, her parents and her teenage brother lived in their own house, in which there also lived a man whom I will call B, who stayed there for about eight months until early November 2019.  B was known to that family as a sports coach of the complainant’s brother.
6. [6]
   The prosecution case depended upon the complainant’s evidence, which was contained within a recorded conversation between the complainant and her parents on 27 December 2019, a recorded police interview conducted on 31 January 2020 and her pretrial testimony given on 18 June 2021.
7. [7]
   E gave preliminary complaint evidence about a conversation which she had with the complainant on Christmas Eve 2019, as the family was preparing to go to stay at the appellant’s house for Christmas.  E recalled that the complainant did not want to “greet [the appellant]” and that she said to E that “he’s got a secret”.  When asked by E to tell her more, the complainant said that “during one stay when she was staying over she was sitting in his bed … and she woke up with … a pillow over her tummy … and [the appellant] was licking”.^[2]  E’s evidence was that the complainant “probably said” that the appellant “licked [the complainant’s] cookie”.^[3]
8. [8]
   R gave evidence of joining a conversation between the complainant and E, and of being told by the complainant that “[the appellant] has got a dirty secret”, and her description of an event in which she was at the appellant’s house and woke up “in his room” feeling that her pants had been removed and that there was “some wetness down [her] private parts”.^[4]
9. [9]
   On 27 December 2019, the complainant and her parents had the recorded conversation which was tendered at the trial.  The complainant said that “[the appellant] … licked [her] spot”.  E asked the complainant if she had seen, specifically, the appellant, to which the complainant said no, although she did say that it occurred in the appellant’s bed.
10. [10]
    In her pre-recorded testimony, the complainant referred to a day which she had spent with the appellant and his wife at a shopping centre where, she said, they bought her a gift, which was a Pikachu toy, before the three of them had lunch and went home to the appellant’s house.  She said that it was on that evening that the offending occurred.  She described the evening involving a dinner with the appellant and his wife, before the three watched a movie.  The appellant’s wife, the complainant recalled, was tired and went to another room to go to sleep, leaving the appellant and the complainant in his bedroom.  The appellant and the complainant watched another movie before the complainant fell asleep, she thought for “two minutes”, before waking up because of what she thought was a flashlight.  The complainant said that she had fallen asleep with a pillow on her face.
11. [11]
    In her s 93A interview by police, the complainant said that there was a pillow in front of her, over which she had “peeked … and looked” and that she was looking at the appellant “all the time … while he was doing it”.  She told police of being woken by the flashlight, which she explained was the appellant turning on the torch on his phone.  She said that the appellant “licked my private and kissed it” and described how he pulled her underwear down.  She also told police that “he … put his finger inside it and then washed his hands right after …”.  When asked by police how many times he had put his finger insider her, the complainant said “like ten long times”.  She held up her middle finger to indicate which of his fingers he had used.
12. [12]
    In her cross-examination, the complainant was asked whether the offending had occurred on the evening of the day in which she had received the Pikachu toy.  She rejected the suggestion that she was mistaken about that.  Other evidence, however, demonstrated that she was mistaken.  R said that the complainant did not spend the night at the appellant’s house following the day on which she received the toy, as was also evident from text messages, and that became the agreed position at the trial.
13. [13]
    The first ground of appeal complains of the trial judge’s decision that certain evidence involving B was irrelevant and therefore inadmissible.  In December 2019, B was charged with an offence of grooming a child under the age of 16 years, an offence under s 218B of the Criminal Code (Qld) and it was apparent that B had been convicted of that offence by the time of the appellant’s trial.  The certificate of conviction was not provided to the trial judge in this case, but it was clear that B’s conviction involved an offence against a child unrelated to the facts of the present case.  There was no evidence that B had ever been to the appellant’s home.  R gave evidence that B was a man in his mid-thirties and that he had lived with the complainant’s family until moving out following a heated discussion between R and the appellant about B living at R’s house.
14. [14]
    In the complainant’s pre-recorded evidence, B was a subject of some of the cross-examination.  The complainant gave this evidence:  B sometimes took the complainant and her brother to sport training in the absence of the complainant’s parents; B would drive her to other places when her parents were not available; she and B would go to the cinema together, without others with them; B would look after her when her parents were out; and in the mornings and before anyone else in the household was out of bed she would jump into bed with B and play a game they called the kissy-kissy, cuddle-cuddle, tickle-tickle game.  She also played the same game when her parents were not at the house.  The complainant was adamant that the game involved only kissing on the cheek and hugging, as well as tickling under her arm and on her shoulders, and that B had never touched or kissed her vagina.
15. [15]
    Very little of this was known to the complainant’s parents.  R was unaware that the complainant would go into B’s bedroom in the mornings.  E knew of the complainant going into B’s room but only twice.  Neither of them knew that the complainant and B played the game.
16. [16]
    The appellant neither called nor gave evidence at the trial.

The first ground of appeal

17. [17]
    The charging and conviction of B was disclosed by the prosecution before the trial and after the pre-trial recording of the complainant’s evidence.  Consequently, the admissibility of evidence of B’s offending came to be determined at the trial.
18. [18]
    The record indicates that the trial judge was given written submissions by the appellant’s trial counsel, but unfortunately they were not kept on the file, and the precise basis or bases for the relevance of the evidence, as advanced by counsel to the judge, is not clear.
19. [19]
    The judge referred to the evidence given by the complainant in the cross-examination relating to B which I have discussed.  The judge then reasoned as follows:

“The issue in the trial will be whether those events, as alleged by the child, occurred; not by whom or the identity of the person who performed those acts. There is no suggestion that there was any other male person in the house on the occasion that she alleges. There is certainly no allegation that the related person, [B], was there at any such time.

In cross-examination of the complainant child, the very acts which are alleged to constitute the offences are denied by the child as ever being performed by [B] in any context at any time. She denies ever having slept in [B’s] bed overnight thereby giving rise to circumstances where she may have woken in his bed at any time. In my view, seeking to adduce evidence of the criminal history of [B] is not probative of any fact in issue in the proceedings. To the extent that the child may have been mistaken only ever extended in the cross-examination of her, to asking her  whether or not [B] ever did things of this kind to her, to which her response has been a clear denial of, “No, never.” It cannot arise, therefore, that there may have been a mistake as to who it was on a particular occasion who may have performed those acts, the defendant and [B], on the child’s allegations, having each performed them at some time. The child was not invited to comment as to whether she might have been (a) mistaken that [B] had never performed those things upon her; (b) mistaken that they didn’t occur at the house that she identifies and draws a picture of, and identifies the bedroom of the defendant in the pictures; or that she might have been mistaken that it occurred following her falling to sleep in the defendant’s bed, the defendant’s wife having excused herself to go to another room because the movie was too loud, and wanting to sleep.

To simply invite the jury, as I understand the submissions for the defendant to be, that the child’s evidence should be rejected because she is simply confused as a seven year old as to all of those facts, both as to the circumstances in which the events occurred, and all the surrounding circumstances, including her reaction the following day, in the house of the defendant and his wife, against the denials that [B] ever did such things to her at all, or that there was ever an occasion on which she slept in his bed – simply because he now has a provable criminal history involving a grooming offence against a child is not a matter which renders the evidence admissible. The application to adduce that evidence is refused.”

20. [20]
    In Wilson v The Queen,^[5] Barwick CJ said:

“The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.”

In Goldsmith v Sandilands,^[6] Gleeson CJ said:

“Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.”

Evidence can rationally affect the assessment of that probability indirectly, in that evidence may be relevant if it assists in the evaluation of other evidence.^[7]

21. [21]
    For the appellant the evidence is said to have been relevant in two ways.  First, it would have assisted in the assessment of her evidence by providing an explanation of how she may have had knowledge of sexual matters if the alleged offending by the appellant had not occurred.  The second was on the issue of the identity of the person who assaulted the complainant, as she recalled, if the jury was satisfied that someone had performed those acts.  It is submitted that the trial judge was wrong to say that there was no issue about the identity of the perpetrator.
22. [22]
    The trial judge did not consider the potential relevance of the evidence upon the first of those bases.  That may be the result of the submissions which he received from the appellant’s trial counsel.  Nevertheless, if the evidence was relevant and admissible upon that basis, there was an error by the judge in not allowing it to be tendered.  In my opinion, the evidence was relevant upon that basis:  see e.g. R v Colby.^[8]
23. [23]
    The hypothesis which was explored in cross-examination was that B had sexually assaulted the complainant.  That hypothesis had some basis in fact, particularly from the complainant’s description of the game which she regularly played with B in his bed, and without the complainant’s parents knowing of it.  That became a more likely hypothesis with the prosecution’s disclosure to the appellant’s trial lawyers that B had been charged and convicted of the grooming offence.  In Hughes v The Queen,^[9] Gageler J observed:

“A grown man does not normally have a sexual interest in female children less than 16 years of age. A tendency to have such a sexual interest and to engage in sexual activities with female children less than 16 years of age, opportunistically or at all, is so abnormal as to allow it to be said that a man shown to have such a tendency is a man who is more likely than other men to have engaged in a particular sexual activity with a particular female child on a particular occasion”.

That was an observation made in the context of the proof of the tendency of a defendant.  Nevertheless, the statement explains the relevance of the proof of B’s tendency here, by explaining the way in which it could rationally affect the assessment by the jury of the likelihood that the complainant was sexually assaulted by B.  In turn, that possibility was relevant to the assessment of the complainant’s evidence, for it could have explained how a seven year old child might have gained knowledge of sexual matters of the kind that the complainant related, if her evidence against the appellant was untrue.

24. [24]
    Despite his ruling, the trial judge permitted the tender in full of the complainant’s testimony, including that part of the cross-examination to which I have referred, and he allowed both the prosecutor and defence counsel to address the jury on that evidence about B.  In his summing up the judge reminded the jury of those arguments.  Consequently, there was a question for the jury of whether B may have sexually assaulted the complainant.  At least because the issue raised a possible explanation for the complainant being able to describe the actions which she attributed to the appellant without them having occurred, that was a relevant issue.
25. [25]
    There was no argument before the judge or in this Court to the effect that this was a collateral issue such that the proposed evidence was to be excluded as evidence which would seek to contradict the complainant’s testimony in cross-examination on a matter going only to her credit as a witness.  A majority of this Court in R v Lawrence^[10] held that in cases where a matter of credibility was inextricably linked with the principal issue, and the Court was confronted with testimony about that issue which was incapable of being verified or tested except by evidence from other sources that went to credit rather than directly to the issue, the Court should be prepared in the interests of justice to relax the rule, that evidence rebutting a witness’s denials on matters going to credit, was not ordinarily admissible.  Each of the majority judgments (McPherson JA and White J) applied the reasoning of McHugh J in Palmer v The Queen^[11] that evidentiary rules based on the distinction between issues of credit and facts in issue should not be regarded as hard and fast rules of law but should instead be seen as “a well-established guide to the exercise of judicial regulation of the litigation process”.  McHugh J was there quoting from the unanimous judgment of the Full Federal Court (French, O'Loughlin and Higgins JJ) in Natta v Canham.^[12]  In R v Lawrence, McPherson JA considered that the judgment of McHugh J in Palmer v The Queen correctly reflected the state of the law in Australia.^[13]  McHugh J expressed the same view in his judgments in Goldsmith v Sandilands^[14] and Nicholls v The Queen^[15] and the reasoning in Natta v Canham was followed by the New South Wales Court of Appeal in Urban Transport Authority of New South Wales v Nweiser.^[16]
26. [26]
    Further, in my respectful opinion, his Honour ought not to have reasoned upon the premises of the correctness of the complainant’s evidence in certain respects.  As the proposed evidence was relevant to rebut the complainant’s denials of any wrongdoing by B towards her, it was no answer to say that the evidence was irrelevant if those denials were true.
27. [27]
    It is unnecessary to discuss the second suggested basis for the relevance of this evidence, because the evidence was relevant and admissible under the first basis.  I add, however, that there was no real issue as to the identity of the offender if offending of the kind described by the complainant did occur in the appellant’s bedroom.
28. [28]
    The judge’s ruling constituted an error of law.  It is not then for this Court to make its estimate of the verdict that a hypothetical jury, whether the jury in this case or a “reasonable jury”, might have returned had the error not occurred and this evidence being tendered.  The appeal is to be allowed unless this Court considers that no substantial miscarriage of justice has occurred.^[17]  The written submissions for the respondent developed, at some length, a contention that the excluded evidence, when put against the evidence in the prosecution case, could not have mattered.  Those submissions did not appear to have engaged the first of the bases upon which the evidence was said to be relevant and admissible.  And neither did they argue that, notwithstanding an error of law by the trial judge in excluding the evidence, this Court should conclude that guilt was proved to the criminal standard on the evidence at the trial and dismiss the appeal.^[18]
29. [29]
    Consequently, the appeal should be allowed, the convictions set aside and a re-trial ordered.  It remains to explain my rejection of the other ground of appeal, by which the appellant seeks to be acquitted of the charges.

The second ground of appeal

30. [30]
    Under this ground of appeal, the Court must make its own assessment of the whole of the evidence to ask itself whether it thinks it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.^[19]
31. [31]
    The prosecution case depended entirely upon the evidence of the complainant.  Her account of the relevant events was susceptible to two particular criticisms upon which the appellant’s argument relies.  The first is her evidence that the offending took place on the evening of the day on which she received the Pikachu toy.  The second is that her evidence as to what happened was not entirely consistent with what she told her mother.
32. [32]
    As to the first point, it is submitted for the respondent that her evidence as to the timing of the offences, relative to her receiving the gift, was susceptible to more than one interpretation, such that it was not clear that she was maintaining that the two events occurred within the same day and evening.  It is therefore necessary to set out the relevant passages from her evidence.
33. [33]
    In her interview by police, she first described the incident, in clear and unambiguous terms, before answering some questions in which she described the appellant and the house in which he lived.  She was then asked when this had occurred.  At first she answered:^[20]

“…it was on like Saturday … On, or Sunday actually and then … the very next morning I was acting very weird at him.”

A few questions later there were these this exchanges:

“[Police officer]: And you said that it happened on a Saturday or Sunday.

[Complainant]: Yeah.

[Police officer]: What makes you think that it happened on a Saturday or Sunday?

[Complainant]:  Because on the next morning it was like Monday.

[Police officer: Mmhmm.

[Complainant]: Or Sunday.

[Police officer]: Monday or Sunday.

[Complainant]: Ah, huh.

[Police officer]: And what else do you remember about the next morning?

[Complainant]: Um, ah, I don't know.

[Police officer]: That's okay. So on that Saturday or Sunday tell me what you were doing before this happened.

[Complainant]: Um, on the um, before the day happened that day.

[Police officer]: Mmhmm.

[Complainant]: Um, I was just playing with the dolls and then me and him went to the shops.

[Police officer]:  Mmhmm.

[Complainant]: To buy me a big Pikachu.

[Police officer]:  Big Pikachu.

[Complainant]: It was like up to um, up to that silver camera down-

[Police officer]: Wow.

[Complainant]: To the bottom.

[Police officer]: That is a big Pikachu,

[Complainant]: Mmhmm.

[Police officer]: And tell me which shops you went to.

[Complainant]: Ah, there's like a Pikachu shop that you have to, it was like a hundred dollars.

[Police officer]: Mm.

[Complainant]: So there's like a shop where there's like every, every character in like a, a movie like Pikachu or, or um, the big friendly giant or-

[Police officer]: Mmhmm.

[Complainant]: Paw Patrol. Yeah.

[Police officer]: And do you remember which shopping centre that was at?

[Complainant]: Mm, um, so ah, I don't know the name but I do know the place.

…

[Police officer]: Okay. Alright so you, you can't remember exactly when it was but it was a Saturday or a Sunday.

[Complainant]: Yeah.

[Police officer]: And you remember that that day, you got a Pikachu.

[Complainant]: Mmhmm.

…

[Police officer]: Okay, so you got a Pikachu from [the appellant] and tell me, what did you do after that?

[Complainant]: I just like walked around the shop with him and ate some food.

[Police officer]: Mmhmm

[Complainant]: And [the appellant’s wife] also come.

[Police officer]: And [the appellant’s wife] went as well?

[Complainant]: Yeah but she went to a, the, the sushi place that we can eat sushi but I didn't want any.

[Police officer]: Okay.

[Complainant]: I got dim sim. So-

[Police officer]: So you got dim sims?

[Complainant]: Yeah, so she was at the sushi place when I, when me and [the appellant] was going to the Pikachu place.

[Police officer]: Oh, okay and then what did you do after that?

[Complainant]: Um, eat.

[Police officer]: Mmhmm.

[Complainant]: The dim sims.

[Police officer]: Mmhmm, and then what happened?

[Complainant]: Then we went in the car again and then drive back to his home.

…

[Police officer]: So we're talking about the day before this happened at night time, on the Saturday or Sunday, did that happen?

[Complainant] Um-

[Police officer]: Or is this another time?

[Complainant]: That was after the shopping centre thing

[Police officer]: So you went to the shopping centre first.

[Complainant]: Yeah.”

34. [34]
    In her pre-recorded evidence, there were these passages in the cross-examination:^[21]

“Okay. So if I’m – I’m trying to work out when you say this night you slept in [the appellant’s] and [the appellant’s wife’s] bedroom, was. Now, when you speak to the police lady in the video you watched the other day, do you remember you told them that you, [the appellant] and [the appellant’s wife] go to the shops together?---Yes.

And this is the time when you - or, when [the appellant] and [the appellant’s wife] buy you the Pikachu toy?---Yes.

So this time, you remember having some dumplings, I think, at the shopping centre?---Yes.

And [the appellant’s wife] had some sushi?---Yes.

And it was [the appellant] and [the appellant’s wife] who bought you the Pikachu toy; is that right?---No, it's - it was just [the appellant].

…

So when you say that, did [the appellant] give the sales lady his card or the money?---Card.

Right. So he bought it, yes, but was [the appellant’s wife] there, as well?---No, she went to grab sushi.

Okay. And then she came back, did she?---Yes.

And then you all met at the shopping centre?---Yes.

And that's the Pikachu in the picture you just showed Victoria?---Yes.

All right. Now, you told the police lady that this happened with [the appellant] in the bed, you think, on, is it a weekend ?---I think it was a weekend, but I’m not sure.

Okay. Was it definitely the weekend that you got the Pikachu toy? --- That was before it happened.

Right. So you get the Pikachu toy, and is it that night that you say this happened?--- Yes.

All right. Because I think you told police on the first morning, "We went to the shops, we got home, we quickly ate dinner, watched Rapunzel, then it happened"?---Yes.

So you still remember going to get the Pikachu toy, coming back to [the appellant] and [the appellant’s wife’s] house, and this is the night that you this happened?---Yes.”

35. [35]
    In my opinion, her evidence on this point was sufficiently certain, and when cross-examined the complainant was adamant that the offending took place on the evening of the day on which the toy was purchased.  Her evidence, in that respect, was incorrect as other evidence demonstrated.
36. [36]
    Nevertheless, she may have been mistaken as to the coincidence of the offending and the purchase of the toy, whilst accurately recalling the distinct events of the offending and the purchase of the toy.
37. [37]
    When the complainant first spoke to her parents about the offending, her mother asked her “did you see him specifically?”, to which the complainant replied “No”.  Her mother asked “So what did you see?”, and the complainant gave an answer the recording of which was difficult to interpret.  When her mother said “but you said you didn’t see him”, the complainant replied “I saw him a little bit” and she added that she saw his head.  This is said to have been inconsistent with the complainant’s evidence, that she “peeked over and looked” at the appellant “all the time” as the offending occurred.  In my opinion there is no significant tension between what she said to her parents and her testimony.  Moreover, this is in a context of a case where there was no real possibility that if the complainant was assaulted as and where she described, her assailant was someone other than the appellant.
38. [38]
    The appellant was very young at the relevant time, but she had the recorded conversation with her parents and was interviewed by police only a few months after the suggested time of the offending.  Apart from the inaccuracy of her evidence which related to the timing of the offending to the acquisition of the toy, her account of the relevant events was consistent and unambiguous.  That inaccuracy did not require the jury to be in doubt about the appellant’s guilt.  It was open to the jury to be satisfied of his guilt beyond a reasonable doubt.

Orders

39. [39]
    I would order that the appeal be allowed, the convictions be set aside and the appellant be re-tried on the charges.
40. [40]
    BOND JA:  I agree with the reasons for judgment of McMurdo JA and with the orders proposed by his Honour.