R v SEM[2025] QCA 16

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Davis J.
2. [2]
   BODDICE JA:  I agree with Davis J.
3. [3]
   DAVIS J:  The appellant appeals against his conviction in the Childrens Court of Queensland on one count on indictment that:

“… on or about the ninth day of February, 2022 at Brisbane City in the State of Queensland, [the appellant] raped [the complainant].”

4. [4]
   The events the subject of the charge occurred eight days before the complainant’s 14^th birthday.^[1]  The complainant, an Indigenous girl, was 16 years of age at the time of the trial, which was heard on 26 and 27 February 2024 by a judge without jury.
5. [5]
   The complainant and her cousin, also a child,^[2] were homeless and sleeping rough in the grounds of St John’s Cathedral in Ann Street, Brisbane City.  The complainant had consumed cannabis, Subutex and alcohol.  She had also been “chroming” which is the practice of inhaling the fumes of chrome paint.
6. [6]
   At about midnight, the appellant came to the churchyard on an electric scooter.  He met up with the complainant and her cousin.  After some discussion, the appellant left but later returned.  He then suggested that they go on a “dump run”.  This is a slang term referring to the collection of discarded cigarette butts which may be able to be smoked.  The complainant accepted the invitation, but her cousin remained in the churchyard.
7. [7]
   The appellant and the complainant went to a fire escape.  It was alleged by the complainant that, as she began descending the stairs, the appellant placed his hand around her mouth and pushed her down the stairs.  There was a struggle during which he pulled her pants down, pushed her on the ground and inserted his penis into her anus.
8. [8]
   The appellant had previously been injured and walked with the use of crutches.  The complainant heard the sound of something dropping to the ground, which, she deducted, was the appellant’s crutches.  She then said that she escaped and returned to her cousin.
9. [9]
   Complaint was made by the complainant immediately to her cousin, and later the same day to her brother and sister-in-law.  Arrangements were made for the complainant to travel to Gladstone to stay with her half-brother and her step-sister.  Complaint was also made to them.

The trial

10. [10]
    Both the complainant and her cousin were interviewed by police.  Electronic recordings of those interviews were admitted into evidence at the trial.^[3]  Both also gave electronically-recorded evidence prior to the trial, which was before the trial judge.^[4]  Two of the preliminary complaint witnesses, namely the complainant’s sister-in-law and step‑sister gave evidence.  The Crown, with the consent of the appellant, made admissions pursuant to s 644(2) of the Criminal Code (Qld), which explained the absence of the other preliminary complaint witnesses.  Detective Senior Constable Troy Smith gave evidence and produced photographs of the cathedral and surrounds, including the fire escape.^[5]  He also obtained four CCTV footage clips depicting movement of various people in the cathedral car park, the cathedral courtyard, the main entry, and the café stairs at the time of the occurrence of the events the subject of the charge.^[6]  The footage was tendered through the complainant.  The footage does not show the act said to constitute the offence.  It does show the complainant and appellant entering the stairs to the fire escape and the complainant emerging about eight minutes later.
11. [11]
    After the Crown prosecutor had opened the Crown case, the trial judge offered defence counsel an opportunity to make an opening statement.  This was said:

“[MR CARTER]:  Your Honour, I will just be brief.  The issues really are quite narrow.  The case really turns on the evidence of the complainant and so it’s really whether the offending happened as the complainant alleges, and what other evidence or lack of other evidence there is to corroborate the complainant’s – what the complainant says.  It’s – ultimately the credit and credibility of the complainant is in issue in this case.

HIS HONOUR:  So it’s not an issue of consent or anything like that.

MR CARTER:  No.  Or mistake.  It’s just that it simply didn’t happen.”

12. [12]
    Cross-examination of the complainant and her cousin before the trial and cross‑examination of the two preliminary complaint witnesses who were called at the trial, sought to illustrate inconsistencies between the various versions given by the complainant to police and the preliminary complaint witnesses.
13. [13]
    The appellant did not give evidence.
14. [14]
    In closing submissions, defence counsel directed his Honour to the various inconsistencies and submitted that the Crown had not proved beyond reasonable doubt that the appellant had penetrated the complainant’s anus with his penis.
15. [15]
    It was not suggested to the complainant in cross-examination or to the trial judge in defence counsel’s address that the appellant was not the person who met up with the complainant and her cousin in the churchyard, or that the appellant was not in the fire escape with the complainant.
16. [16]
    On 27 February 2024, the trial judge found the appellant guilty of the charge and convicted him of the count of rape.

The verdict

17. [17]
    As required by the Code,^[7] the trial judge delivered reasons.  His Honour directed himself on various matters of law.  There is no complaint as to the adequacy of the reasons and no submission that his Honour committed any error of law.  There is no submission that his Honour made any factual error other than in the ultimate finding of guilt, which the appellant argues was not reasonably open on the evidence.
18. [18]
    As to the finding of guilt, his Honour reasoned as follows:

    1. the complainant was intoxicated, however:
       1. (i)
          she had a reasonably good recollection of the surrounding circumstances;
       1. (ii)
          she was able to walk reasonably steadily; and
       1. (iii)
          she was able to interact with other people;
    2. the CCTV footage is generally consistent with the complainant’s version;
    3. there were some inconsistencies between the complainant’s version and the CCTV footage, but the inconsistencies did not detract from the complainant’s overall credibility;
    4. there were inconsistencies in the accounts given to police and the preliminary complaint witnesses, but:
       1. (i)
          the accounts are all broadly consistent; and
       1. (ii)
          the inconsistencies do not detract from her overall credibility;
    5. the CCTV footage shows the complainant moving quickly away from the fire escape^[8] and rubbing her eyes.^[9]  This and the complainant’s cousin’s evidence that she was distressed when she returned to him is consistent with her evidence that she was raped.  His Honour considered “that her state of distress was genuine and there are no other logical reasons for that condition”;
    6. his Honour accepted that the appellant was injured, but rejected the submission that the injury would make it improbable that the appellant could have physically committed the alleged offence, because:
       1. (i)
          as shown by the CCTV footage, the appellant was capable of using an electric scooter; and
       1. (ii)
          the appellant was bigger than the complainant, who was young and intoxicated;
    7. there was no forensic evidence and the Crown case depends “very substantially” upon acceptance of the complainant’s evidence standing alone.  That attracted a requirement that her evidence ought to be carefully scrutinised;^[10] and
    8. having carefully scrutinised the complainant’s evidence, the judge was satisfied beyond reasonable doubt that the charge was proved.

The appeal

19. [19]
    The sole ground of appeal is:

“The Judge’s verdict of guilty on Count 1 was unreasonable and cannot be supported having regard to the evidence.”

20. [20]
    What is submitted by the appellant is that:

    1. the conviction is dependant upon acceptance of the complainant’s evidence; and
    2. there are inconsistencies in the version of the complainant which makes the verdict unreasonable.
21. [21]
    The Crown:

    1. accepts that the verdict is dependent upon acceptance of the complainant’s version on critical aspects, beyond reasonable doubt; and
    2. accepts that there are issues with the complainant’s evidence; but
    3. submits that the verdict was reasonable nonetheless.
22. [22]
    In M v The Queen,^[11] the High Court held that a jury’s verdict is not unreasonable if it was open to the jury to be satisfied of guilt beyond reasonable doubt.  In particular:

“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 … [i]f 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 the 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.”^[12]

23. [23]
    The test in M v The Queen has been consistently approved and followed by the High Court.^[13]  The present case is not one like Coughlan v The Queen,^[14] which was a purely circumstantial case.  Here, the verdict was dependent upon acceptance beyond reasonable doubt of the complainant’s direct evidence of their version.  Pell v The Queen^[15] was also such a case.  There, the High Court observed:

“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.”^[16]  (footnote omitted)

24. [24]
    In Fleming v The Queen^[17] and Filippou v The Queen,^[18] the High Court determined that, on the appeal statutes there being considered, the test in M v The Queen applied equally to verdicts by judges sitting alone as it does to jury verdicts.  In R v Harris,^[19] this Court applied Fleming and Filippou and concluded that the M v The Queen test applied in Queensland to appeals from judge alone verdicts.
25. [25]
    Therefore, the question on appeal is whether, having regard to the identified limitations with the complainant’s evidence and taking into account all the evidence in the case, the trial judge acting rationally could conclude guilt beyond reasonable doubt.
26. [26]
    The criticisms of the complainant’s evidence can be placed in four categories:

    1. inconsistencies between the version in the first and second interviews with police;
    2. inadequacies in the preliminary complaints which the complainant made;
    3. some specific contradictions; and
    4. that she was under the influence of substances during the incident the subject of the charge.
27. [27]
    There are inconsistencies between the two interviews with police.  In the first interview the complainant did not identify the appellant by name.  She said that she did not know him, could not see him, could not see what he looked like, but that he was using metal crutches.  In the second interview she named the appellant.
28. [28]
    In the first interview, the complainant said she was with her cousin, she then went for a walk, and the attacker “just came out of nowhere and grabbed me”.  In her second interview, she gave a version more consistent with that of her cousin and the CCTV footage, namely that the appellant joined them and then she went for a walk with the appellant.^[20]
29. [29]
    In describing the events of the actual attack itself, the complainant said in her first interview that the appellant said, “Just stay with me, just stay”, and in the second interview she said that the complainant was saying, “Shh, shut up”.
30. [30]
    Complaint was made to the complainant’s cousin almost immediately after the incident complained of.  She did not, though, tell her cousin that she was raped.  She said that the appellant “wanted to root” her.  She told her step-sister, her brother and her sister-in-law that she had been raped.  She did not identify the appellant as the offender, but described the attacker as an older male who gave her Subutex.  She did not disclose to these people that the rape was effected anally.
31. [31]
    There are some specific inconsistencies.  For example, there is no evidence that the appellant supplied the complainant with Subutex.  She told police in her first interview that, by that stage, she had not told anyone about the incident.  In fact, she had and when asked specifically by police whether she had spoken to a particular person, she said she had.
32. [32]
    It was evident both from the complainant’s interviews with police and her pre‑trial recorded evidence that she was under the influence of various substances at the time of the alleged offending, and she admitted that affected her perceptions of the events.
33. [33]
    It is important to note how the defence was run at trial.  There was no contest on the question of identification of the appellant.  As already observed, it was accepted that the appellant was the person who entered the fire escape with the complainant.  The CCTV footage shows the complainant and the appellant entering the fire escape, but there is no vision of what occurred between them.  The footage then shows the complainant leaving the fire escape.  The complainant’s cousin saw the complainant in a distressed state once she had returned to him in the churchyard.
34. [34]
    It was never suggested in cross-examination of the complainant that anything occurred in the fire escape which may have led to her being distressed.  On appeal the Court was asked to speculate that something other than an act of anal rape may have occurred which would explain the complainant’s distressed condition.  That was not the appellant’s position at the trial.  When considering whether a verdict is unreasonable, a Court of Appeal must have regard to how the defence was conducted at trial and what issues emerged for consideration.^[21]
35. [35]
    The complainant was a young, homeless Indigenous girl.  It is clear from her cousin’s evidence that something occurred in the fire escape which upset her significantly.  While she did not tell her cousin that she had been raped, she clearly made complaint to him of sexual misconduct immediately after returning to him.  She may not have told the other preliminary complaint witnesses that she was anally raped, but she said that she was raped and that is consistent with the evidence of distressed condition.
36. [36]
    There is no principle of law that an inconsistency in a complainant’s version is necessarily fatal to a prosecution.  The function of the tribunal of fact, be it jury or judge sitting alone, is to consider all the evidence, including the inconsistencies, and determine whether the Crown has proved the case beyond reasonable doubt.
37. [37]
    As the trial judge found, what supporting evidence there is tends to support her version.  The CCTV footage shows the appellant and the complainant entering the fire escape and the complainant emerging later.  As the trial judge observed, the footage is consistent with various events and things that the complainant recalled to the police.  This, the trial judge observed, correctly in my view, showed that even though she was intoxicated “she was able to give an accurate, honest and reliable account of the events”.
38. [38]
    Bolstering the complainant’s evidence were her preliminary complaints.  The first of these were to her cousin and the contents were supported by her distressed state.  The complaints are consistent in substance; she was raped by the appellant in the fire escape.
39. [39]
    In my view, it was reasonably open on all the evidence for the trial judge to conclude guilt beyond reasonable doubt.  The ground of appeal fails and I would dismiss the appeal.