R v WCD[2024] QCA 120

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons and orders proposed by Callaghan J.
2. [2]
   BODDICE JA:  I agree with Callaghan J.
3. [3]
   CALLAGHAN J:  The appellant was convicted, after a trial, of maintaining a sexual relationship with a child (count one) and four offences of rape (counts two to five).  He was sentenced to imprisonment for a period of 13 years.
4. [4]
   Mr Hoare KC (who did not appear in the trial) advances the appeal against conviction on a single ground, namely that:

“there was a miscarriage of justice occasioned by a failure to direct the jury as to the use of prior inconsistent statements of a witness that were not distinctly admitted by that witness.”

Prosecution case

5. [5]
   The complainant was born in March 2002.  For a period between May 2011 and September 2014,^[1] she^[2]resided with her aunt and the appellant, who had been a couple since about the year 2000.
6. [6]
   The complainant alleged that whilst she resided with the couple the appellant raped her on a regular basis.
7. [7]
   This claim may first have been made to her twin sister, who reported a conversation to this effect occurring “a few months after” they moved out of the residence.  Something similar was said by the complainant to her mother, although the date of that conversation was indeterminate.^[3]  It is clear that in 2017 the complainant told the manager of her residential program “that she had been hurt and sexually interfered with” by someone who shared the unusual first name of the appellant.  As a result of that, an appointment was made with police.  The complainant was interviewed, the interview was recorded and received into evidence pursuant to section 93A of the Evidence Act 1977 (Qld).
8. [8]
   Details of the offending, as recorded in this interview, were spare.  The complainant said that “the first time” anything happened was an occasion when the appellant began by choking her, then played with his penis in front of her, forced her mouth open, put his penis inside her mouth^[4] and ejaculated.^[5]  He then penetrated her vagina with his penis.^[6]
9. [9]
   On another occasion, not identified by reference to any particular timeframe, the complainant said that she was asleep with her sister in the bedroom when the appellant walked in, pulled her off the bed and took her outside, where he “started to rape her”.^[7]  She said – using her own terms – that he had then put his penis inside her vagina.^[8]
10. [10]
    On a separate occasion, the complainant said that she was travelling with the appellant between Rockhampton and Yeppoon.  At some stage they stopped on a dirt track where it was “pitch dark.”  In “the bush” somewhere the appellant came to the passenger door, opened it, remove the complainant’s belt and took off her pants, then told her to bend over.  It was a case of “then, ah, just the same”^[9] – that is the complainant said that the appellant had placed his penis inside her vagina.^[10]  After that finished she got back in the car, and sat in the back.  They went home, she had a shower and went to sleep.^[11]
11. [11]
    These specific incidents were a reflection of the fact that, according to the complainant the appellant was “all over”^[12] her, and that he “just kept on coming back.”^[13]  It was, she said, “an every day thing”^[14] and this fact - combined with the particular incidents described - provided the basis for the offence of maintaining a sexual relationship.^[15]
12. [12]
    The complainant gave evidence that when she moved out the appellant had threatened her by saying that if she ever told anybody, he would kill her, and if he could not get to her he would get to her siblings.^[16]  This was said against a background of evidence about other threats and acts of violence committed by the appellant.  These included an incident in which, it was alleged, the appellant hit her with a metal bar.  The complainant allowed to having some memory of speaking to the police about that “metal bar” incident at or close to the time when it happened.^[17]

Defence case

13. [13]
    In cross examination it was put to the complainant that at no time was there any sexual contact between her and the appellant, but the appellant did not give evidence.  Rather, his defence focused upon the lack of detail in the complainant’s accounts.  It also involved the propositions that the complainant enjoyed living with him, and at no stage during her residence took advantage of opportunities to complain about his conduct.
14. [14]
    In an effort to make good those key propositions, the following cross examination occurred:

Defence Counsel: “Thank you. In July 2011, you told your carer from the Department of Child Safety that you were happy living with [the appellant], didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “Okay. In that same meeting with the Department of Child Safety, you told them that you loved your new placement; do you remember that?

Complainant: “No.”

Defence Counsel: “In December 2011, you told the Department of Child Safety that you’d been hurt in your previous placement with M and D, didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “Okay. In February of 2012, the Department of Child Safety asked you whether you wanted to stay with [the appellant] and you told them you wanted to, didn’t you?”

Complainant: “Yes.”

Defence Counsel: “You told them in that same meeting in February 2012 that you like it with him and that you had fun there, didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “In August 2012, you again told the Department of Child Safety that you didn’t want to leave your placement with [the appellant], didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “In March of 2013, you again told the Department of Child Safety that you were very happy with [the appellant], didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “In April of 2013, you were asked by the department if you wanted to stay with [the appellant] and you yelled the word “yes”, didn’t you?”

Complainant: “Don’t remember.”

Defence Counsel: “In September 2013, the Department of Child Safety had a conversation with you about them possibly lifting the long-term guardianship order that they had with you; do you remember that?”

Complainant: “No.”

Defence Counsel: “Okay. Do you remember telling them in September of 2013 that even if there wasn’t an order in place, you still wanted to live with [the appellant]?”

Complainant: “Don’t remember.”

His Honour: “So this was 10 years ago. How old are you now?”

Complainant: “Twenty-one.”

His Honour: “Right.”

Defence Counsel: “In November of 2013, you told the Department of Child Safety that you wanted to stay with [the appellant] long-term, didn’t you?”

Complainant: “Don’t remember.”^[18]

15. [15]
    Other evidence cast doubt upon the complainant’s flat denial that her placement had been “loved”, and filled the gap left by her inability to remember other things that she had said. This evidence took the form of an admission – jointly made – in the following terms:^[19]

3. Records from the Department of Child Safety record the following entries being entered by staff of the Department:

Addresses and summing up

16. [16]
    Defence counsel submitted to the jury:

“As I said before, her explanations for it are simply not credible, in my submission. What makes more sense, ladies and gentlemen, is that there was nothing going on. She told Child Safety she was happy and she wanted to stay, so she didn’t report anything. She took action when there was an event worth reporting, and the reason she didn’t say anything about this isn’t because she was scared or because she felt she couldn’t because of his presence; it was because he it [sic] didn’t happen.”^[20]

17. [17]
    The learned trial judge did not deal specifically with the juxtaposition between the complainant’s evidence and the records from the Department of Child Safety.  As part of his directions on preliminary complaint, he reminded the jury that:

“On the other hand, any inconsistencies as you find them to be between the account of what the others say she said to them and what she said to the police and in Court may cause you to have doubts about [the complainant’s] credibility or reliability. As I have said to you a few times, whether there are consistencies or inconsistencies and whether that impacts on the credibility or reliability of the complainant is entirely a matter for you.”

During his summary of rival contentions he reminded the jury that defence counsel had submitted:

“[Defence Counsel] commenced by saying that while this alleged sexual abuse was supposed to be happening over some years the complainant was also telling people from the Department of Child Safety that she was happy and wanted to live there, and that you would also consider the other witnesses’ evidence and not accept the evidence of [the complainant]. She said that you would find that the evidence was contradicted by other evidence.”

18. [18]
    No re-directions were sought.

Appellant’s argument

19. [19]
    Even in the absence of a request, the appellant submits, as averred in his ground, that a particular direction should have been given.
20. [20]
    The appellant’s argument reduces, in essence, to the propositions that:

    1. the ‘relationship” described was one from which, it might be thought, the complainant would have liked to be removed;
    2. however, when afforded opportunities to complain about the situation, the complainant affirmed satisfaction with her living arrangements.  These statements were recorded by officers from the Department of Child Safety;
    3. the complainant did not, when cross examined, distinctly admit making the statements attributed to her in the Departmental records;
    4. exhibit 3, the admission, became “proof” for the purposes of section 101 of the Evidence Act 1977 (Qld).  That is, the evidence constituted by the admissions became proof of the fact that the complainant did utter the words attributed to her, and proof of the facts asserted by those words;
    5. the learned trial judge ought to have directed the jury to that effect;
    6. it was important that he do so because the statements contained in the admission could have been used by the jury to counter the accusations that the appellant had threatened the complainant; and
    7. more fundamentally, the things said were “arguably inconsistent with the offences having occurred at all”, and in any event relevant to an assessment of the complainant’s credibility.
21. [21]
    In the result, it is said, the omission has occasioned a miscarriage of justice.

Consideration

22. [22]
    Section 18 of the Evidence Act 1977 (Qld) provides:

“18 Proof of previous inconsistent statement of witness

1. If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.

2. However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such a statement.”

23. [23]
    Section 101(1) of the Evidence Act 1977 (Qld) provides:

“101 Witness’s previous statement, if proved, to be evidence of facts stated

1. Where in any proceeding—

1. a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or

2. a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;

that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.”

24. [24]
    For the purposes of this appeal, I am prepared to proceed on the basis that the evidence of the statements made to the Department were inconsistent with the complainant’s testimony and that she denied or, by asserting absence of memory, at least did not “distinctly admit” that the statement had been made.  If, therefore, it is accepted that the provisions of section 18 were complied with then the evidence of the admissions did attract the operation of section 101.  It would have been open for the appellant to submit, with validity, that the status with which section 101 imbues this evidence – admissible as evidence of the facts stated – be the subject of a direction to the jury.  The appellant’s argument does have some technical merit.
25. [25]
    It is true, as the respondent submits, that the statements so proven did not go to the offences themselves.  The jury could have convicted even whilst accepting that the facts stated to the Department were proven as evidence.  That of itself does not foreclose the position adopted by the appellant.  The application of s 101(1) can be significant.  For example, in a case involving a hostile witness who recants the contents of an earlier proof, it might be necessary to determine whether there is in fact any evidence on the point which is the subject of the contradiction.  The technical but potentially important distinction - between an established inconsistency that goes to credit and one which is evidence of a fact - may be critical in those and any number of cases.
26. [26]
    This was not one of them.
27. [27]
    To succeed the appellant must demonstrate that the direction for which he contends may, as a reasonable possibility, have affected the verdict.^[21]
28. [28]
    It is at once to be noted that the statements in question, even though “arguably inconsistent” with the proposition that the appellant offended as charged, were not decisive of anything.  They may well have afforded proof of the fact that the complainant was content with her living arrangements.  However, there may also have been reasons for that, depending on the alternatives that were available to her.
29. [29]
    Another step needed to be taken before this evidence went directly to the issue of whether the alleged events occurred.  That step was not taken, and there may have been a good forensic reason for that.  As things were left, the contradicted statements provided counsel with a good talking point, and counsel did in fact make of it what she could.
30. [30]
    As noted above at [16], counsel used terms (“because it didn’t happen”) which must have conveyed the proposition that the relevant evidence could be used as proof of the fact that the complainant was “happy” where she was.  Nothing was said to the jury by anyone, at any point, to suggest that it could not be used in that way.  Any further instruction would necessarily have involved explaining the distinction (meaningful to lawyers; less so to everyone else) between evidence that is admissible to prove that something was said, as opposed to proof of the fact represented in the words spoken.
31. [31]
    In a case that turned on the credibility of the complainant, the impact of the contradiction did not depend upon an understanding of this distinction.  Observations made in R v Fox^[22] are instructive.  This was, like Fox, a case in which a juror would be unlikely to regard the difference between approaches as having any significance.  The relevant inconsistencies must necessarily have been considered by the jury when addressing the appellant’s contentions.  In particular, they must have been foremost when considering the propositions advanced for the appellant - see [20] above.  They could not have been ignored, but their capacity to raise a reasonable doubt did not depend on the way in which they might be described in a textbook.  It required only the application of a jury’s common sense.
32. [32]
    That may have been the view of trial counsel, from whom there was no request made for a direction or redirection on this point.  In those circumstances, the trial judge could not have been expected to give such a direction.^[23]  Even if his failure to do so was an error, it was not one which was a material irregularity inconsistent with a fair trial or which must have been ‘prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict… or “realistically [could] have affected the verdict of guilt”… or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”’.^[24]
33. [33]
    The appellant is not able to establish that a miscarriage of justice has occurred.  His appeal must be dismissed.