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R v Abraham[2021] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Abraham [2021] QDC 65

PARTIES:

THE QUEEN

v

ABRAHAM, WM

FILE NO:

Indictment No. 427 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial (Judge Alone)

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 March 2021

JUDGE:

Kent QC, DCJ

VERDICT:

Not guilty on all counts.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – EVIDENCE – Where the defendant is charged with three counts of indecent treatment of a child under 16, under care – Where the defendant pleaded not guilty – Where the trial was a judge alone trial – Where there was evidence of distressed condition – Where the defendant gave evidence – Whether the prosecution case met the threshold of beyond reasonable doubt – Where the finding was not guilty on all counts

LEGISLATION:

Criminal Code s 614, s 615B, s 615C

Evidence Act 1977, s 4A

CASES:

Grubisic v Western Australia [2011] 41 WAR 52, cited

R v Allen (a pseudonym) [2020] QCA 233, cited

R v Iongi [2021] QCA 43, cited

R v Markuleski (2001) 52 NSWLR 82, cited

R v Pentland [2020] QSC 231, cited

R v Roissetter [1984] 1 Qd R 477, cited

R v Rutherford [2004] QCA 481, cited

R v Sailor [1994] 2 Qd R 342, cited

R v Waye (1984) 14 A Crim R 39, cited

RBA [2018] QCA 338, cited

COUNSEL:

G Wong for the Crown

C Reid for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the Crown

Burchill & Horsey for the Defendant

Introduction

  1. [1]
    The defendant is charged with three counts in identical terms, each being that on 12 July 2019 at Brendale in the State of Queensland he unlawfully and indecently dealt with KH, a child under 16 years and that he had KH under his care for the time being.  The three counts are alleged to have occurred on the same occasion, and indeed in the same physical transaction.
  2. [2]
    An order was made pursuant to ss 614 and 615 of the Criminal Code that the defendant be tried by a judge sitting without a jury.  Section 615B requires me to apply so far as practicable the same principles of law and procedure as if there were a jury. Section 615C (3) requires that I record:
    1. (a)
      the principles of law that I have applied; and
    2. (b)
      the findings of fact on which I have relied.

The Elements of the Offence

  1. [3]
    Before the defendant can be found guilty of the charges, I must be satisfied beyond reasonable doubt of the following elements:
    1. (a)
      That the defendant dealt with the complainant.  This includes any act which, done without consent, would constitute an assault as defined by the Criminal Code.  It includes a touching of the child.  In this case what is alleged is a touching by the defendant of the child’s body with his hand;
    2. (b)
      That the dealing was indecent.  The word “indecent” bears its ordinary everyday meaning, that is what the community regards as indecent.  It is what offends against currently accepted standards of decency.  Indecency must always be judged in the light of the time, place and circumstances;
    3. (c)
      The dealing was unlawful.  This means not justified, authorised or excused by law;
    4. (d)
      The complainant was under 16 years;
    5. (e)
      The defendant for the time being had the child under his care.  This means that at the relevant time he was responsible for the control and supervision of the child.  Relevant considerations are the age of the child, how she came to be with the defendant and why she was with the defendant.

The Issues in This Case

  1. [4]
    Most of the above elements are not in issue.  There is no issue as to the age of the child at the time, nor whether the touching, if it occurred, was indecent and unlawful.  The issues are primarily whether the dealing actually occurred as alleged by the complainant (the defence case is that no such things occurred) and, secondly, if there was such a dealing, the other elements not being in significant contest, whether the circumstance of aggravation of the child being in the defendant’s care is made out on the facts.

General Principles of Law

  1. [5]
    There are a number of general principles which apply to all criminal prosecutions and must be applied by me.  These were conveniently stated by Martin J in R v Pentland;[1] I reproduce them and have applied them:

“[12] The prosecution has the onus of establishing the offence charged beyond reasonable doubt.  There is no onus on the defendant.

[13] In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.

[14] The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.

[15] The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.

[16] It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it.  The fact that I might not accept a portion of the evidence of a witness does not mean that I must be necessarily reject the whole of that witness’ evidence.  I may accept parts of it if I think it is worthy of acceptance.

[17] In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.

[18] I also bear in mind that there is a difference between honesty and reliability.  A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw.  In this case, the passage of time between the events surrounding a charge and the giving of evidence in this trial is of particular importance.”

S 93A Statement

  1. [6]
    As the complainant is a child, her evidence included the statement given to police and admitted pursuant to s 93A of the Evidence Act 1977. The recording was played during the trial. I take into account that the presenting of the child’s evidence in this way comprises the routine practice of the Court.  This measure is adopted in every case involving children such as KH.
  2. [7]
    The recording was tendered and I have had access to it, and the transcript. I keep in mind that the transcript is someone else’s impression of what was said during the recorded interview. The transcript is not evidence and is an aid only. It is what I hear on the recording that matters, not what is in the transcript; although there are no debates between the parties as to any significant inaccuracies therein.  These comments apply equally to other relevant transcripts.
  3. [8]
    I do have other witnesses’ evidence in recorded or written form, in that I have the defendant’s police interview recording, its transcript and the trial transcript; nevertheless I am careful not to place undue weight on the child’s evidence because I am able to hear and read it on a number of occasions.

Pre-recorded Evidence

  1. [9]
    The child’s evidence was pre-recorded under Division 4A of the Evidence Act. I thus take into account the usual directions that
  1. -
    At the time the child gave evidence, she was in a room remote (separate) from the courtroom.
  2. -
    The evidence was given by use of an audio visual link between the room in which the child was seated and the courtroom.
  3. -
    At the time the child gave evidence there was a support person sitting in the room with her, and no other person.
  4. -
    Whilst the child gave evidence, all non-essential persons were excluded from the courtroom.
  5. -
    At the time, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all.
  6. -
    The child’s evidence was recorded as it was given and that is the recording that was played.
  7. -
    The courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played.
  8. -
    I thus take into account that all of these measures, used for the taking and showing of the child’s evidence, are the routine practices of the court for taking and showing evidence of children such as KH and I must not draw any inference as to the defendant’s guilt because these measures were used. The probative value of the evidence is not increased or decreased because these measures were used, and thus, the evidence is not to be given any greater or lesser weight because these routine measures were used.
  1. [10]
    I am not aware of editing of any of the recordings, but if there were any I would not draw any consequent inference adverse to the defendant.

Record of Interview

  1. [11]
    As to the defendant’s recorded police interview,[2] there is no real dispute as to the contents. I bear in mind the above comments as to transcripts. The prosecution relies on some statements against interest therein. If I am satisfied that the relevant statement was indeed made by him, the second aspect I must consider is whether the parts which the prosecution relies on as indicating guilt are true and accurate.  It is up to me to decide whether I am satisfied that those things said by the defendant which would tend to indicate that he is guilty of the offence were true; because if I am not so satisfied, I cannot rely on them as going to prove his guilt. 
  2. [12]
    During the course of the interview a number of questions were asked by the police officers of Mr Abraham.  The same reasoning applies here as to questions by counsel of a witness.  If he did not agree to or in some way accept the contents of a question asked of him, the question cannot become any evidence against him. 
  3. [13]
    In the course of the interview, it is said, Mr Abraham made statements which the prosecution relies on as pointing to his guilt.  If I accept them as having been made by him and as true, it is up to me to decide what weight I give them, and what I think they prove.  He also gave answers which I might view as indicating his innocence.  I am entitled to have regard to those answers if I accept them, and to give them whatever weight I think appropriate, bearing in mind that they have not been tested by cross-examination.   In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to me what use I make of them and what weight I give them.

Absence of Complainant’s Motive to Lie

  1. [14]
    The prosecution has submitted that the complainant does not have any motive to lie. This seems correct. I must bear in mind that any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist. If such a motive existed, the defendant may not know of it. There may be many reasons why a person may make a false complaint.
  2. [15]
    If I am not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean that the complainant is truthful. It remains necessary for me to be satisfied that the complainant is truthful.

Defendant Giving Evidence

  1. [16]
    In this case the defendant gave evidence.  He did not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence.  That he did so does not mean that he assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence is added to the evidence called for the prosecution.  The prosecution has the burden of proving each of the elements of the offences beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
  2. [17]
    This is one of the category of cases sometimes described as “word against word”.  In a criminal trial it is not a question of making a choice between the complainant’s evidence and that of the defendant.  The proper approach is to understand that the prosecution case depends upon my accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; thus I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
  3. [18]
    Where, as here, there is defence evidence, there are usually one of three possible results:
  1. I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdict would be not guilty; or
  2. I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  So, my verdict would be not guilty; or
  3. I may think that the defence evidence should not be accepted.  However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence evidence unconvincing, I must set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proven each of the elements of the offence in question.

Distressed Condition

  1. [19]
    There was evidence in the case of the complainant’s distressed condition; the complainant was seen to be distressed by her mother shortly after the events – she was crying, shaking, really upset.[3]  The prosecutor submits that I can use this evidence in support of the evidence that the complainant was indecently dealt with by the defendant.  It is a matter for me as the judge of the facts whether I accept the evidence relating to the complainant’s distressed condition.  If I do, then I must ask myself: was the distressed condition genuine or was the complainant pretending?  Was she putting on the condition of distress?  Was there any other explanation for the distressed condition at the time?  It is customary to be aware that little weight ought be attached to distressed condition because it can be easily pretended.  If I find that the distress was genuine then it may be used by me as evidence that supports the complainant’s account.

Preliminary Complaint

  1. [20]
    There was also evidence of preliminary complaint. Following the evidence as to distressed condition above, Ms H, the complainant’s mother, said

“…And she’s hopped under the covers and pulled the blankets over her head and she said that – like, W’s grandfather had touched her on the vagina.

Did she say anything else about how that happened?---I do recall asking her if it was like a skin-on-skin contact, which she said yes.”

  1. [21]
    That evidence may only be used as it relates to the complainant’s credibility. Consistency between the account of Ms H of the complainant’s complaint and the complainant’s evidence is something I may take into account as possibly enhancing the likelihood that her testimony is true.
  2. [22]
    However, I cannot regard the things said in those out-of-court statements by the complainant as proof of what actually happened. Evidence of what was said on that occasion may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.
  3. [23]
    Likewise any inconsistencies between the account of Ms H of the complainant’s complaint and the complainant’s evidence may cause me to have doubts about the complainant’s credibility or reliability. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me.

Separate Consideration of Charges

  1. [24]
    Although there are separate charges which must be considered separately and the evidence for each charge must be evaluated, in effect in this case the offences are all part of a single, confined and seamless factual transaction, and the occasion does not arise for a Markuleski[4] – type direction,[5] as counsel agree; the single transaction is not really sensibly divisible.

Reasonable Doubt

  1. [25]
    For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged.
  2. [26]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities”. That is, the case must be proved to be more likely than not.
  3. [27]
    In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.
  4. [28]
    It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences.  If I am left with a reasonable doubt about guilt, my duty is to acquit: that is, to find the defendant not guilty.  If I am not left with any such doubt, my duty is to convict: that is, to find the defendant guilty.

Other Discreditable Conduct

  1. [29]
    The defendant is charged with the three offences set out in the indictment. The prosecution has led evidence of the conduct with which the defendant is charged.  In addition, the prosecution has led evidence of other incidents in which the complainant says that there was sexual conduct by the defendant towards her; particularly the staring at her groin, and the making of inappropriate remarks. 
  2. [30]
    The prosecution relies on this other evidence to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it.  The prosecution argues that this evidence makes it more likely that the defendant committed the offences with which he is charged.
  3. [31]
    I can only use this other evidence if satisfied beyond reasonable doubt that the defendant did act as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue. 
  4. [32]
    If not satisfied of those things, beyond reasonable doubt, then that may affect my assessment of the complainant’s evidence about the acts which are the subject of the offences with which the defendant is charged.  If I do not accept that this evidence proves, to my satisfaction, that the defendant had a sexual interest in the complainant, I must not use the evidence in some other way to find that the defendant is guilty of the offences with which he is charged.
  5. [33]
    Further, if I am satisfied that one or more of these other acts did occur and that this conduct does demonstrate a sexual interest of the defendant in the complainant, it does not follow that the defendant is guilty of the offences which are charged.  I cannot infer only from the fact that this other conduct occurred that the defendant did the things with which he is charged. I must still decide whether, having regard to the whole of the evidence, the offences charged have been proved to my satisfaction beyond reasonable doubt.

General Factual Overview

  1. [34]
    The allegations are in essence that the defendant was, as at 12 July 2019, living in a townhouse complex at Brendale, a northern suburb of Brisbane. He seems to have only been living there for a fairly short time, perhaps between two and five weeks.[6] It is common ground that at the relevant time the complainant child was living with her mother in a nearby townhouse in the same unit complex.
  2. [35]
    On 12 July KH, who was friendly with the defendant’s granddaughter, W (a younger girl aged about 6), met up with and played with her, and remained in her company during much of the day.  KH wore blue denim shorts and a singlet that exposed her belly button.[7] The two girls spent time in the townhouse occupied by the defendant and engaged in a number of activities including performing gymnastic manoeuvres in the lounge room, including utilising the couch. During the gymnastics, KH perceived that the defendant was focusing on her and her groin.[8]
  3. [36]
    There was an excursion in the middle of the day to the nearby complex swimming pool for a relatively brief swim, the events having taken place in winter.  After the group returned to the townhouse, and at a time when W had left the townhouse to play with a hoverboard[9] outside, the allegation is that the defendant grabbed the complainant, forced her to the couch, in essence turned her upside down and used his hands to force her legs apart, and touched her on each side of (Counts 1 and 2), and finally on (Count 3), her vagina.  The complainant freed herself, ran home to her mother and complained immediately.  These allegations were met with denials by the defendant in a police interview and in his sworn evidence at the trial.

The Evidence

  1. [37]
    The complainant gave evidence through the medium of an interview with the police admitted at the trial pursuant to s 93A of the Evidence Act.[10]  The interview took place on the day of the alleged offence, 12 July 2019.  The complainant was interviewed by the investigating police officer, Constable Neil Davies.  In essence, she gave evidence along the lines summarised above.  At the time she was 12 years of age.[11] At the commencement of the interview, the complainant was asked why she had come in to speak to police and said:

“Well, because I got touched in a way that I didn’t want to… and I was shocked when it happened…. because I thought that I was safe at my friend’s place… but obviously not.”

She went on to describe the events of the day in question including her playing with W and doing gymnastics and “playing on the hoverboard and stuff”.  The defendant, described as W’s grandpa, made comments when she was doing gymnastics like backbends and splits, saying that it was nice how they were positioned, in what the complainant interpreted as a “dirty way”.[12]

  1. [38]
    She described the defendant as looking at her private part.[13] She told W that the defendant was making her uncomfortable, looking at her private parts.[14]  She went home briefly to change into a sports bra and black shorts to go swimming. She said that after the visit to the pool, gymnastics resumed (W was still wearing her swimming clothes).[15] During the gymnastics W mentioned the complainant’s underwear and whether her undies were green or blue, and the complainant said that the defendant said “it doesn’t matter what colour her undies are, it matters what’s underneath her undies”.  The complainant thought this was disgusting.[16]  She also said that during the gymnastics the defendant was saying “Oh yeah, by the way, nice slit”.[17]  The complainant said that she accordingly changed the way she was sitting on the couch to obscure the defendant’s view of her private parts.[18]
  2. [39]
    The offending allegedly happened when W had gone outside via the front door to play on the complainant’s hover board.[19]  As the complainant was about to follow, the defendant grabbed her from behind by placing his arms under her armpits.[20]  He pulled her to the couch.[21]  He “flipped” her body such that her head was on the carpet, facing towards him, and her legs were in the air.[22]  While seated on the couch, he held her by the ankles and spread her legs apart.[23]
  3. [40]
    He touched the complainant on her right and left inner thighs with his hand.[24] On both sides, his hand went “the whole way” under her shorts (Count 1 and 2).[25]  He asked if “this part of your thigh hurt” during gymnastics.[26] She told him to “let go”.[27] He kept her legs between his.[28] He placed his hands on her left and right inner thighs.[29] He rubbed “where the hole was on [her] private part” under her clothing (Count 3).[30]
  4. [41]
    She told him to let go, “slipped out of his legs” and ran out the door.[31] By then, W was no longer near the front of the dwelling.[32] She ran back home “bulging in tears” and told her mother, LH, details of what had just occurred.[33]
  5. [42]
    When her daughter returned home that afternoon, Ms H saw that she was “crying, shaking, really upset about something”.[34] Ms H heard the complainant say that “W’s grandfather had touched her on the vagina” and confirm that “skin-on-skin contact” occurred.[35] Ms H then called the police.
  6. [43]
    The police separately interviewed the complainant and the defendant in the evening. His version was broadly consistent with the peripheral circumstances as she had described. However, he denied making sexually suggestive comments about her and denied touching her genital region.

DEFENCE SUBMISSIONS

  1. [44]
    The defence submissions emphasise that, firstly, Abraham denies the offences.  He denied the offending during questioning on 12 July 2019 and in his evidence on 22 and 23 March 2021. He has consistently said:
  1. -
    He met the Complainant on the day the offences are alleged to have occurred.
  2. -
    He was home with his granddaughter, W.
  3. -
    He was making bread and porridge during the morning when the Complainant was present.
  4. -
    He moved between the kitchen and the lounge area during the activities described above.
  5. -
    He sat on the couch shown in Ex 4 but moved to the end nearest the sliding door when the two girls were doing gymnastics.[36]
  6. -
    He gave them money to buy slushies at the local garage.[37]
  7. -
    He was present at the pool when they swam.  He spoke with another man while there.
  8. -
    The girls came and went during the day.  Their activities included riding a hoverboard, doing gymnastics and running up and down stairs.
  9. -
    He did not touch the complainant in a sexual way.[38] He did touch her on her back while assisting her gymnastics.[39]
  10. -
    He made no lewd comments to the complainant nor did he stare or show interest in her groin.[40]
  11. -
    The complainant left the house while W was outside on the hoverboard.  He did not see the complainant again[41] as he told the Police “… she had something on”[42].  [The complainant told police she had told W she and her mum were going to the Wizard of Oz that night].[43]
  12. -
    His account in both his interview and in his evidence are consistent.  Any differences in his evidence appear to be an explanation of something said at the Police Interview.  It seems clear on all the evidence that both girls did gymnastics and played with the hoverboard punctuated with trips to the garage, visit or visits to the Complainant’s home, the pool or the home of the other girl at the pool.
  1. [45]
    Mr Abraham gave evidence that (in accordance with the directions on this aspect) is both credible and reliable and provides a satisfying answer to the prosecution’s case.  At the very least it would leave this Court in a state of reasonable doubt as to what the true position was.  In either case this would lead to a verdict of not guilty.

Complainant’s Evidence

  1. [46]
    In the event the defence evidence was not accepted this Court could not be satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offences in question.
  2. [47]
    Crucial to the prosecution case is the complainant. She is not a reliable witness.
  3. [48]
    On the Crown case she does not know Abraham (the evidence is perhaps unclear as to whether she met or saw him the day before the alleged offending).[44]
  4. [49]
    Notwithstanding the unusual behaviour of which she complains prior to the alleged offending:
  1. (1)
    She is able to leave the house at any time (and does frequently);
  1. (2)
    She does not raise what she considers to be concerning behaviour with her mother;[45]
  1. (3)
    She says she “… did like a test on him”[46]  to see if he was paying more attention to her, the Complainant, or his granddaughter.  She also alleged he may have taken a photograph of her;[47]
  1. (4)
    The circumstances of the touching are unusual.  To flip a child upside down to indecently deal with them makes little sense;
  1. (5)
    In relation to Ct 3, the most serious touching she says[48] 

 “… he would kind of put his fingers underneath my shorts where … my vagina was …

Q So what did he touch?

A Just like the top of my private bit.

Q Did you feel his finger on your vagina?

A … the back of his palm.”

Later she seems to be describing a finger.[49]  This topic was taken up in the s 21AK hearing.[50]

  1. [50]
    While there is evidence of distress and complaint at a relevant time (see mother’s evidence) there is no supporting evidence.  DNA was not found.  The police did not seek Abraham’s phone.[51]
  2. [51]
    Her demeanour during the 93A was both restless and imaginative.  She is prone to exaggeration, saying she was at the pool for an “hour and a half”[52] but at 21AK said it was about half an hour.[53]  She introduces into her narrative someone called Charlie but not the girl at the pool.[54]  She alleges the defendant said “nice slit” when she was doing the splits.  If correct this is unusual behaviour on his part especially in front of his granddaughter. Having seen him questioned by Police - rigorously by Detective Ford - and given his evidence this seems at odds with his demeanour. He has a noticeable accent and is softly spoken.
  3. [52]
    On balance the complainant’s evidence could not be relied upon.

Conclusion

  1. [53]
    Thus the defendant submits that in the circumstances of this case verdicts of not guilty should be returned.

PROSECUTION SUBMISSIONS

  1. [54]
    The prosecution argues that the complainant was truthful and reliable and her evidence should be accepted to the required standard.  This does not necessarily depend on a comparative assessment of the objective features of her account against that of the defendant.  It is argued that if the complainant is accepted, it is an inevitable consequence that the defendant’s sworn evidence would be rejected.[55] 

Demeanour

  1. [55]
    The prosecution submits that the complainant’s demeanour was persuasive; she was a child trying to answer questions as honestly as she could.  She seemed relatively at ease with the police and openly volunteered detailed and coherent responses with little prompting.  Her evidence in court was of similar quality.

Details

  1. [56]
    The prosecution submits that the complainant’s account contains tangible details consistent with the retelling of a real memory of a lived event.  It was comprehensive, coherent and consistent, containing details including innocuous details, said to be suggestive of a true recollection.  Her account was accompanied by gestures and movements, including demonstrations of how things occurred.  This is said to be consistent with a vivid and accurate memory of the incident, and is thus supportive of reliability.

Not Embellished

  1. [57]
    It is also submitted that the complainant did not embellish or exaggerate.  The allegations are said to be unlikely to be fabricated because they are embarrassing.  The lack of embellishment is exemplified by the complainant not alleging any threats by the defendant, or any significant physical resistance by herself.
  2. [58]
    She did not overstate the other concerning conduct earlier in the day.  She also, it is said, made reasonable concessions.  An example is telling the police of a suspicion he photographed her, but conceding when she was unsure whether he did.[56]

Sexual Interest

  1. [59]
    It is also submitted that the defendant’s sexual interest in the complainant was indicated by a number of features including his staring at her, including her private parts; the comment about her undies; and comments such as “nice slit”. These matters, of course, turn on an acceptance of her version which is denied on oath by the defendant.

Distressed Condition

  1. [60]
    The prosecution understandably emphasises the evidence of distressed condition, set out at [41] to [42] above.  The prosecution submits that the evidence is corroborative of the complainant’s account.  A strong causal connection exists between her distress and the alleged incident, in circumstances where she went directly home and her mother’s observations of distress must have occurred close in time to the alleged incident.  There is no suggestion of an intervening event or interaction which could be a reasonable alternative explanation for her distress.  The degree of intensity of distress observed was consistent with the nature of the alleged conduct, which was an unexpected, invasive and humiliating instance of sexual touching by the grandfather of her neighbourhood friend. 
  2. [61]
    In dealing with the distressed condition, it is noted that there is, of course, a common law rule against self-corroboration, which would arise if the mere repetition of the story to another witness were regarded as corroboration; as opposed to distressed condition, which is capable of being corroborative in the sense that the evidence of the observations of distress come from another witness, in this case the complainant’s mother; it is independent evidence confirming her version[57].  However it is in this context that the caution outlined at [19] above, must be borne in mind.  It is customary to be aware that little weight ought be attached to distressed condition because it can be easily pretended.   As was observed by King CJ:

“In order to treat such manifestations as capable in law of amounting to corroboration, it is necessary to be able to exclude, on any reasonable view of the evidence, the possibility that they are concomitants of the relation of a fabricated story or of an account which has its only basis in a disordered imagination.”[58]

As against these observations, as I have noted, the prosecution makes the point that the observations of distress in this case must have occurred close in time to the alleged incident and there is no suggestion of any real alternative explanation such as some other intervening event.

Preliminary Complaint

  1. [62]
    The prosecution also refers to the preliminary complaint outlined above, submitting that this is a boost to the complainant’s creditworthiness.  The complaint was made at the first opportunity and was consistent with the essential allegations in her account, namely that she was touched on the skin of her vagina by the defendant.

Defendant’s Evidence

  1. [63]
    Thus the prosecution submits that the complainant’s evidence should be accepted.  Conversely, it is argued that there are reasons to, firstly, find that some aspects of the defendant’s version confirm the reliability of the complainant’s evidence.  These include his acknowledgement that he did observe the girls performing gymnastics at close quarters; he did hear W point out the colour of the complainant’s underwear; he did make some comment about the gymnastics; he did touch the complainant more than once, albeit innocently; and that he was alone with her for a period of time after W left the house to play on the hover board.
  2. [64]
    Thus the prosecution argues that the defendant’s version provides an opportunity to commit the offences.  It is said that the defendant’s denials should be rejected because they are inconsistent with the complainant’s evidence; however this is somewhat circular.  The real question is the evaluation of the complainant’s evidence in the context of all of the evidence in the case, including the defendant’s sworn denials, to see if the prosecution’s burden of proof is discharged.
  3. [65]
    The prosecution submits that in his recorded interview with the police on 12 July 2019 the defendant did not initially say that he had touched the complainant, and this only emerged after specific questioning.  His evidence was criticised because it contained more details than the police version.  Broadly, however, it seems to be conceded that this was an enlarging on the original version rather than a divergence from it.  The main criticism seems to be that in the police interview he said that he had touched the complainant three or four times in assisting her with the flipping manoeuvre.[59]  However, when he gave evidence he seemed to indicate that there were only two occasions he touched her, and that this was a significant distinction.  A relevant passage in the transcript seems to be as follows, commencing at T2-12, l 34:

Q “Now, in your evidence you said KH told you off by saying words to the effect of, ‘I can do it’? –

A Yes.

Q Alright.  When she told you off is it possible she actually said, ‘let go’? –

A That’s all I heard was, ‘I can do it’.  Didn’t say, ‘let go’.  Yeah and that’s why I remember this, ‘I can do it’.

Q Alright.  You are unshakeable in that memory of what words she use? –

A Just those words I remember.

Q And after KH told you off in that way did you touch her again at all? –

A No. 

Q Alright.  But isn’t it the case that you actually helped KH by grabbing her in that way three or four times? –

A No.

Q No?  Well, again I’ll take you back to the interview – at page 22 at approximately line 20.  Sergeant Ford asked you this question, ‘So how many times did you grab her’? –

A Yep.

Q And I suggest he was referring to KH and then you responded, ‘Oh, I don’t know. Maybe three, four times and about six, seven times on my grandchild.’  So you told the police on 12 July 2019 that your estimate was three to four times the number of times you touched KH? –

A Yes.

Q OK.  So would – you accept it’s wrong to say that you only touched KH on the two occasions that we’ve gone through today? –

A Yeah, that’s why I said it was four.  But those two when she never doing the gymnastics.  And we had porridge and that.  I handed by – the plate and the bread.  I buttered them handed it to her. 

Q So sorry I? –

A That’s what I thought that was the touching of – I mean the touching – touching her.

Q Sorry, Mr Abraham, I am not entirely following your answer.  Can you try? –

A Well it’s …

Q So my – I’ll just ask my question again? –

A Yes.

Q So in your evidence in chief yesterday and we’ve gone through it this morning today you described two moments when you touched KH.  First was you stopped her from falling into the fan and the guitar? –

A Yep.

Q And the second time was when you helped with KH with a flip and she told you off? –

A Yep.

Q Right.  Those are the two times that we have talked about.  That you’ve talked about in your evidence.  My question is given what you told the police on 12 July that you may have touched KH – helped KH with the flipping three or four times, it’s wrong to say that you only touched KH on the two occasions that you’ve described in the evidence in this Court? –

A It was only the – like I said, it was, like, four or five times.  I touched her when they were doing gymnastics and I gave her – buttered her bread and gave it to her – porridge, and when I brought her towel back from the pool.  That was the – that was contact with her…

Q. Alright.  So are you maintaining that you only helped KH…? –

A Twice.

Q Helped KH with the flip once? –

A Twice.  Once where she nearly hit the guitar and the other where she just collapsed.”

  1. [66]
    The passage reference from the transcript from the Record of Interview is at page 22, line 15:

“Sergeant Ford: So how many times did you grab her?

Abraham:  Oh, I don’t know, maybe three, four times.

Sergeant Ford: Mmm.

Abraham:  And about six, seven times on my grandchild.

Sergeant Ford: Mmm.

Abraham:  ‘Cause she didn’t know how to do it.”

  1. [67]
    The difference, if it is a difference, between saying on one occasion that in the context of the gymnastics he had touched the complainant three or four times as opposed to, much later at the trial, referring to two occasions, is in my view a somewhat subtle change if it is a change at all.  I do not find this to be a particularly serious blow to his creditworthiness.
  2. [68]
    The prosecution attacks the defendant’s creditworthiness because the complainant said that he had asked her about feeling sore when she was doing the splits.  He rejected this proposition in his evidence.  However, the mere inconsistency in version between the two witnesses on this rather peripheral topic is not, in my view, a particular reason for choosing between the creditworthiness of one witness over another, and is certainly not a clear blow to the creditworthiness of the defendant.
  3. [69]
    The prosecution also argue that the defendant’s creditworthiness is damaged because he refused to make what they argue is a reasonable concession that he would see the complainant’s groin when he was assisting her with a flip.[60]  Although it is difficult to identify precisely what the defendant was describing in the relevant passage, in my view his denial of seeing her groin during that process, whatever it was, is not inherently unlikely.
  4. [70]
    The prosecution submission is that the defendant’s version is unreliable; is said that his version has demonstrably evolved over time, although for the reasons outlined above it is not clear to me that this is so.

Elements

  1. [71]
    As to the elements of the offences, as touched on above, many of them are not controversial.  As to the element of whether the complainant was in his care at the time, it is submitted that:
    1. (a)
      the complainant was a 12 year old child and the defendant was a mature man
    2. (b)
      the defendant was living in the home in which she spent most of the day and she was there, inferentially, with his consent
    3. (c)
      during her visit, he did things with her welfare in mind.  He prepared food for her to eat and accompanied her and W to the pool, apparently to supervise them while swimming
    4. (d)
      he was the only adult present inside the home throughout her visit that day.

Conclusion

  1. [72]
    Overall, the prosecution submit that the complainant was honest and reliable and her account and is corroborated by the distressed condition.  It is consistent with her preliminary complaint and the defendant did manifest a sexual interest in her that culminated in the offences.  It is submitted that her evidence should be accepted to the required standard of beyond reasonable doubt, giving rise to the inevitable rejection of the defendant’s version.  The defendant’s version is said to be inconsistent and contradictory.  Thus it is said that the defendant should be found guilty of the offences.

Consideration

The Competing Versions

  1. [73]
    The complainant’s evidence was impressive.  She seemed to be doing her honest best to recount the events accurately.  It also had the advantage of following an extremely prompt complaint and a prompt recording of her version by the investigating police on the day of the alleged offences. The brief preliminary complaint was consistent with the rest of her evidence.  Her demeanour (to the extent that this can be relied on) was of an honest witness genuinely attempting to recount the events. 
  2. [74]
    Nevertheless there are some valid criticisms of the quality of her evidence, as outlined by defence counsel, above.  The circumstances of the alleged touching do seem to be somewhat unusual and perhaps illogical.  She could have left the defendant’s house and/or told her mother of her earlier concerns, but did not. Although there was evidence of distress and complaint there was no supporting evidence such as DNA transfer, nor was there any forensic examination of the defendant’s phone to ascertain whether any photographs had been taken as the complainant suggested may have occurred. 
  3. [75]
    On the other hand, the defendant also gave his account promptly to investigating police and, contrary to the prosecution submissions, I do not find it to have been particularly inconsistent, certainly in any important details, with the sworn version given in evidence at trial.  He denies staring at the complainant or showing interest in her groin or touching her inappropriately. His demeanour also was reasonably impressive; he presented as a slightly dull person giving an honest account, with an air of somewhat mystified denial. He was put under an appropriate degree of pressure in the interview, but was apparently unaffected by it and stuck to his version. Likewise he made no concessions in cross examination at the trial.

Evaluation of the Competing Versions

  1. [76]
    If this were as far as the evidence went, in a “word against word” type case, I would have to evaluate it bearing in mind the important principle that the prosecution case depends upon my accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; thus I would not have to believe that the defendant is telling the truth before he would be entitled to be found not guilty.
  2. [77]
    If this were the extent of the evidence, in my assessment I would be driven to a conclusion of not guilty relatively quickly; the analysis of the possible results would fall in the first two tiers outlined in [18] above, that is, that the defence evidence was credible and reliable and provided a satisfactory answer to the prosecution case; or at least, if not convincing, it would leave the court in a state of reasonable doubt as to what the true position was.  Either of those alternatives would result in verdicts of not guilty. In saying this I do not overlook the evidence of preliminary complaint; I accept that KH, in the complaint evidence, was consistent, although the complaint was necessarily a very brief summary of her overall version. Nevertheless her consistency in the central elements of her version is a buttress to her credit, to a degree; however I would find it difficult to conclude on all the evidence that the prosecution could prove the case beyond a reasonable doubt, given the defence evidence.
  3. [78]
    I do not find that it is a situation where the defence evidence should be rejected outright, so the matter does not fall into the third category of cases referred to.

Distressed Condition

  1. [79]
    What makes the analysis of this case somewhat more complex, however, is that the evidence is not limited to the two competing versions.  There is also the evidence of distressed condition.  The evidence clearly portrays distress on the part of the complainant shortly after the events in question.  As referred to above, this is evidence external to the complainant in the sense that it consists of the observations of her condition by her mother.  Thus this is a significant feature supporting the prosecution case.  However, as outlined above, the legal approach to this category of evidence is that, customarily, little weight ought to be attached to it because it can easily be pretended. 
  2. [80]
    This cautious approach to distressed condition evidence is an important aspect of the required analysis. In saying that, however, I detected no evidence of pretence on behalf of the twelve year old complainant; and it may be that the warnings on this topic are generally aimed more at older, more sophisticated witnesses. For example, in R v Rutherford[61] the complainant was an adult woman albeit she was described as being dyslexic and a slow learner, having attended a Special School. The issue in that case was the absence of a direction as to the need to be satisfied that the complainant’s troubled mood was not attributable to some other cause. This was one of the reasons the appeal against conviction was allowed. By contrast in this case, as the prosecution argue, the evidence does not seem to allow of any alternative explanation for her condition of distress. Nevertheless courts generally are cautioned not to be overly ready to place too much weight on distressed condition, for the reasons expressed. It also remains a possibility that the complainant could be upset for reasons unknown to the defendant and not otherwise revealed in the evidence.
  3. [81]
    The question is ultimately one for the tribunal of fact. In R v Roissetter[62] the complainant was 13 years old. She was distressed, upset and crying on the morning after the offence. On appeal, the relevant direction was considered. McPherson J said at p 482:

“It may perhaps be doubted whether any of the circumstances adverted to can fairly be described as special or exceptional. At the foundation of the court’s reluctance to allowing evidence of a distressed condition to be left to the jury without some particular warning as to its reliability there is evidently a fear that the condition in question may be feigned so that the jury may be led astray by a consideration of it. Such distrust hardly seems compatible with the traditional role of the jury as the assessors of matters of credibility and fact at a criminal trial. To require even that, unless the circumstances are “special”, there be a specific warning in particular terms against relying upon evidence of distress as a possible form of corroboration has the effect of elevating to the status of a rule of law a matter which in the end, is necessarily and entirely one of fact or inference or simply credibility. If the circumstances are such that the causal connexion or apparent relationship between the distressed condition and the alleged assault is tenuous or remote, then the duty of the trial judge is to withdraw it from the jury as a circumstance capable of being considered corroborative: see R. v. Flannery (supra); R. v. Berrill [1982] Qd. R. 508, 527. But, given that it is, in the particular circumstances, fairly capable of affording corroboration, the matter of the inferences if any to be drawn from, and the weight if any to be allowed to, a state of distress in a complainant is pre-eminently one for the jury. No fixed verbal formula is capable of being laid down for determining what direction should be given by judge to jury, or whether any specific direction as to the weight or lack of it is necessary or desirable in a particular case.

In the present case it was not suggested that the girl’s condition of distress early in the morning after the incident alleged was incapable of being considered by the jury as affording some corroboration of her allegation. That being so, the question whether that condition was genuine or only feigned, and whether it was related to her account of the events of the evening or proceeded from some other independent cause, were matters for assessment by the jury without the addition of the possibility misleading comment that they were necessarily of little weight or the suggestion that the circumstances were special or exceptional. The judge in clear terms drew the attention of the jury to the need to be satisfied that the distressed condition was genuine and not attributable to some other cause, and what he said was in my opinion both appropriate and adequate in the circumstances disclosed by the evidence in the case. It follows that the appellant has not made out a basis for interfering with the verdict on this ground.” 

  1. [82]
    The issue was more recently examined in the context of a judge alone trial in R v RBA.[63]  In that case there was a challenge on appeal to a reliance by the trial judge on distressed condition, finding it gave “strong support” for the complainant’s account. The challenge on appeal was unsuccessful. It was a rape case; the complainant was an adult; she was observed by a number of friends to be very upset immediately after the event; and the judge referred to her immediate, spontaneous and genuine distress. There was a competing explanation offered by the defence which his Honour did not find persuasive. It is another, more recent, example of the approach taken in the fact finding process, but does not seem to alter the legal principles involved.
  2. [83]
    Thus the question becomes whether, in a case where the evaluation of the rest of the evidence would otherwise lead to a conclusion of not guilty, the presence of the distressed condition evidence, in my assessment as the tribunal of fact, tips the scales in favour of the prosecution to the required standard, taking into account the required warning.  This question is in my view finely balanced.  There is no reason to think the distress was feigned; it occurred shortly after the alleged offence; and there is no competing explanation for it.  However, assessment of it is necessarily imprecise; it is not distress which I was able to observe (and thus form my own impression of demeanour), rather I am acting on the mother’s brief description.  There was no such display in the recorded police interview later that afternoon.  It is slightly different from Roissetter and RBA where a number of witnesses gave evidence that the complainant was in a very distressed condition. Thus assessment of the evidence and its weight is somewhat handicapped.
  3. [84]
    I can act, however, on the uncontradicted evidence that the complainant was upset, shortly after the alleged offence, and for no other apparent reason than the alleged offence. Further it is difficult to imagine a reason for the complainant to feign such distress and no such competing explanation (either of feigning, or another explanation for genuine distress) is advanced. In all the circumstances the evidence is, as the prosecution submits, corroborative of the complainant’s evidence.

Conclusion

  1. [85]
    My conclusion is that although the evidence of distressed condition does further strengthen the prosecution case, the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. At the end of the day my assessment is that the prosecution has proven the case – that is, that the events happened essentially as the complainant described – to a standard of probability, perhaps even strong probability; but it falls short of the required standard of beyond reasonable doubt. Accordingly the verdicts are not guilty.
  2. [86]
    In the circumstances it is not necessary for me to reach a conclusion as to whether or not the complainant was in the defendant’s care.

Footnotes

[1] [2020] QSC 231 at [12]-[18].

[2] Exhibit 7.

[3] T1-18 ll. 11-12.

[4] R v Markuleski (2001) 52 NSWLR 82.

[5] As to creditworthiness of the complainant on one count being taken into account in assessing her evidence as to the other counts.

[6] T1-24 ll 1-5.

[7] Transcript of Exhibit 1, p 12, ll 38-58.

[8] Ibid p 18, l 18 – p 20, l 33.

[9] A battery powered motorised personal vehicle, consisting of a platform for the feet mounted on two wheels, controlled by weight distribution; essentially a mini-Segway.

[10] Exhibit 1.

[11] It is uncontroversial that the complainant had turned 12 shortly before the alleged offending occurred.

[12] Transcript of Exhibit 1, p 4.

[13] Transcript of Exhibit 1, p 4, l 45.

[14] Ibid at p 5.

[15] Ibid at p 5, l 55 – p 6, l 12; p 27, ll 35-49.

[16] Transcript of Exhibit 1, p 18.

[17] Ibid.

[18] Ibid.

[19] Ibid p 6, ll 54 - 55

[20] Ibid p 7, ll 1 – 19, also demonstrated at 13.23 – 13.32 of Exhibit 1.

[21] Ibid p 7, l 17; p 33, ll 54, 55, also demonstrated at 13:32 – 13:36 of Exhibit 1.

[22] Ibid p 7, ll 18 – 20, also demonstrated at 13:40 – 13:45 of Exhibit 1; p 35, l 25 – p 36, l 26, also demonstrated at 48:11 – 48:56 of Exhibit 1.

[23] Ibid p 35, ll 49 – 55, also demonstrated at 48:31 – 48:36 of Exhibit 1.

[24] Ibid p 36, ll 29 – p 37, l 23, also demonstrated at 49:35 – 49:52 of Exhibit 1.

[25] Ibid p. 37, ll 25 – 55, also demonstrated at 50:33 – 50:46 of Exhibit 1

[26] Ibid p 7, l 33; p 36, l 31.

[27] Ibid p 7, l 34; p. 37, l 57.

[28] Ibid p 37, l 57 – p. 38, l 1, also demonstrated at 51:04 – 51:05 of Exhibit 1.

[29] Ibid p 38, l 5, also demonstrated at 51:12 – 51:16 of Exhibit 1.

[30] Ibid p 38, l 15, also demonstrated at 51:19 – 51:20 of Exhibit 1; p. 39, l.34.

[31] Ibid p 38, l 15.

[32] Ibid p 38, l 18 – 29.

[33] Ibid p 9, l 5; p. 40, ll 20 – 58.

[34] T1-18, ll 4 – 12.

[35] T1-18, ll 13, 14.

[36] T1-30 l 7 – T1-31 l 21.

[37] T1-31 l 41 – T1-31 l 6.

[38] T20 ll 36-34.

[39] T1-26 l 12 – T1-28  l32.

[40] T1-28 ll 34-29.

[41] T1-29 ll 36-46.

[42] ROI p 6 ll 3-9.

[43] S93A p 5 ll 35-37.

[44] S93A p 41 ll 39-47 and 21AK p 2-20 ll 5-7.

[45] S93A p 21 l 49 – p 22 l 26; p 40 ll 10-14.

[46] S93A p 29 l 55 – p 30 l 12.

[47] S93A p 6 ll 20-30; p31 l 7 – p 32 l 18.

[48] S93A p 37 l 12.

[49] S93A p 39 l 25.

[50] T2-17 ll 15-40 to T2-18 l 1-5.

[51] T1-21 l 30 – T1-22 l 12.

[52] S93A p 23 ll 40-50.

[53] 21AK T2-24 ll 5-6.

[54] S93A p 23 ll 3-35; p 8 ll 41-42.

[55] As occurred in R v Allen (a pseudonym) [2020] QCA 233 at [60].

[56] Exhibit 1, p 6, l 29; p 31, l 54 – p 32, l 17.

[57] See R v Iongi [2021] QCA 43 at [18]; R v Sailor [1994] 2 Qd R 342, 344-345.

[58] See R v Waye (1984) 14 A Crim R 391 at 393; also Grubisic v Western Australia [2011] 41 WAR 524 at [70].

[59] Transcript of record of interview, p 22, ll 12 – 21.

[60] T2-10, ll 4 – 29; T2-11, ll 25 – 38.

[61][2004] QCA 481.

[62] [1984] 1 Qd R 477 (emphasis added).

[63] [2018] QCA 338.

Close

Editorial Notes

  • Published Case Name:

    R v Abraham

  • Shortened Case Name:

    R v Abraham

  • MNC:

    [2021] QDC 65

  • Court:

    QDC

  • Judge(s):

    Kent QC DCJ

  • Date:

    27 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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