R v DEM[2024] QDC 44

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with one count of rape alleged to have been committed on a date unknown between 11 November 2010 and 30 June 2011 at Boondall in the State of Queensland.  The particulars, broadly, are that he is alleged to have penetrated the complainant’s anus with his penis without consent.  Although the date is not precisely identified, the timeframe is fixed as being an occasion some months following the birth of the complainant’s daughter in November 2010.
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. The principles of law that I have applied;
   2. The findings of fact on which I have relied.

The elements of the offence

3. [3]
   Before the defendant could be found guilty of the charge, I must be satisfied beyond reasonable doubt of the following elements:

   1. That the defendant penetrated, to any extent, the anus of the complainant by his penis;
   2. That the act of penetration occurred without the complainant’s consent.

The issues in this case

4. [4]
   In the context of the evidence given and the challenges to the complainant in cross-examination, the elements are both in issue; however, to simplify that understanding, the defence advanced is in essence that there was no such act of penetration at all.  Indeed, although the parties had been in a relationship, including a sexual relationship for a period of time, the proposition advanced in cross-examination was that there had never been any act of anal intercourse, much less one without consent.  Thus, the analysis of whether or not the prosecution has proven the offence to the required standard boils down to a consideration of whether the prosecution has proven that the alleged incident occurred as the complainant alleges, or does the prosecution fall short of establishing that proposition beyond reasonable doubt. The defence points out, correctly, that this requires determination of whether the complainant’s evidence as to the offence is accepted beyond reasonable doubt or does the proof fall short of that standard.

General principles of law

5. [5]
   There are a number of general principles which apply to all criminal prosecutions and which I must apply.  They were conveniently stated by Martin J in R v Pentland [2020] QSC 231 at [12]-[18].  I reproduce 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 into 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 necessarily reject the whole of that witness’s 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 the charge and the giving of evidence in this trial is of particular importance.”

The evidence

6. [6]
   The only evidence at the trial was that of the complainant, who is a mature woman, now 43 years of age.  She was born in the Philippines and moved to Australia at some time in the past; certainly by 2009.  Although she is fluent in English (according to the way she gave evidence at the trial; more of this below) her native language is Tagalog, a language spoken in the Philippines and accordingly the complainant gave evidence with the assistance of a Tagalog interpreter.  She gave evidence from a remote witness room in the court complex on 19 February 2024 and her evidence was recorded as it was given.  The assistance of the interpreter was via a telephone connection.  I heard the evidence as it was given and have had access to the transcript. 

Interpretation

7. [7]
   The indications from the outset of the trial where that the complainant was relatively competent in English, thus I discussed with her at the commencement of her evidence the two possibilities of whether she wished a strict interpretation process of all communication being through the interpreter, or whether she wished to give evidence in English primarily, with assistance from the interpreter as required.  She initially indicated a preference for strict interpretation.  However, from the commencement of her evidence she began spontaneously answering questions fluently in English – without any interpretation – and this process continued.  Occasionally assistance was sought from the interpreter. 
8. [8]
   As the transcript indicates, there was a period after the lunch break when she indicated some dissatisfaction with some undefined aspects of the interpretation process.  After an examination of that issue, I reached the conclusion that there was in truth no problem with the process and there was no realistic possibility of any degree of meaning having been lost.  Accordingly, the evidence was concluded in the same way as previously.  The complainant’s agreement with this procedure is at T1-56.  My conclusion is that there was no significant difficulty with the complainant being able to clearly communicate during her evidence.
9. [9]
   In reaching this conclusion, I have considered and applied the fundamental duty of a judicial officer to ensure fairness and procedural fairness in the conduct of proceedings (Standard 16.1 of the Guideline to Working with Interpreters in Queensland Courts; see Direction 21.1 of the Supreme and District Courts criminal directions benchbook (“the Benchbook”)).
10. [10]
    I have also taken into account the broader contents of Direction 21.1, in particular the need for caution as to body language or demeanour where different cultural backgrounds are involved or as to reliance on tone. I have been cautious to resist any conscious or subconscious bias attached to demeanour, cultural assumptions, stereotypes or cultural bias attaching to my assessment of the complainant’s evidence. I do note that ideally the interpreter would have been physically present; however, this does not, in the circumstances outlined above, negatively impact the fairness of the proceedings to any significant degree.

The complainant’s evidence

The relationship

11. [11]
    The complainant’s evidence was that the couple originally met on a dating website in May 2009.  They dated for a few months but then separated.  They had an intimate relationship, as a result of which she fell pregnant.  She learned of the pregnancy after the breakup.  She discussed the pregnancy with the defendant and decided to proceed with her pregnancy and it was agreed he would assist or support her with the child.
12. [12]
    Her daughter was born on 10 November 2010 and she was then living with the defendant initially in Tarragindi and later moving to premises at Boondall.  Broadly, by the time of the move to Boondall, the complainant’s version was that they were no longer in a relationship but essentially separated under the same roof.  The move to Boondall was in 2011. 
13. [13]
    The complainant also said the birth of her daughter was natural but somewhat difficult because she was a large baby and as a result there were some stitches in her vagina which was tender for some months thereafter.
14. [14]
    The complainant’s evidence was that DEM was somewhat overbearing and controlling during the relationship.  She felt that she had to live with him because of her daughter whom (for unspecified reasons) she did not “declare” to relevant authorities, leaving her in a position that if she moved away from DEM he threatened that she would not be able to take her daughter with her. I don’t understand this to have been correct, of course, in any legal sense, but I do accept that the complainant was nevertheless apprehensive about the problem.

The offence

15. [15]
    The complainant’s description of the offence was that at the relevant time, during early 2011, because of her injury from the birth and her stitches she was still in pain.  DEM wanted her to be intimate with him, but she told him no because it was still painful, however according to her he forced her.  Her description was that “he put his penis in my arse”, at a time when she was begging him not to do it, but he forced himself upon her.  She said that because he was strong she was unable to resist.  She said no, but he continued.  It happened in the Boondall house in the bedroom during the day.  The penetration continued long enough for DEM to climax.  The complainant said that after the intercourse the defendant was angry, apparently in the context that she wanted to leave him but he said she could not take her daughter with her.  She was scared of that situation.  Her evidence was that DEM accused her of not being worthy as a mum. 

The complaint

16. [16]
    The complainant did not immediately complain to police, or anyone else, of the offence. This aspect of the factual narrative was engaged in arguments as to directions, set out below. After eventually leaving the Boondall house the complainant lived in Beenleigh with her daughter.  The defendant stayed in contact and was somewhat threatening, again in relation to the custody of the daughter.  They again apparently lived together in Eagleby for a period of time until the complainant eventually found separate accommodation for herself and her daughter.  The defendant still had contact with she and her daughter thereafter. 
17. [17]
    The complainant eventually made a complaint to police of the rape in 2021 after allegations emerged from her daughter as to sexual offences committed against her by the defendant.  The complainant’s statement to police in 2021 (primarily relating to the daughter’s complaint) contains the allegation of rape but was not specific as to whether the act of penetration was vaginal or anal.  It was not until 14 February 2024, roughly two years and eight months after the first statement (and the week before the trial), that the precise allegation of anal rape occurred, in a conference with the Crown Prosecutor.
18. [18]
    After hearing the evidence, the parties made written submissions to which they spoke on 18 March 2024. As set out below, there was both agreement and disagreement as to the applicable directions.

Defendant not giving evidence

19. [19]
    The defendant has not given or called evidence.  Accordingly I direct myself on that aspect as follows. It is his right to not give or call evidence.  He is not bound to do so and is entitled to insist that the prosecution prove the case against him, if it can.  The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution.  It proves nothing at all, and I must not assume that because he did not give evidence that adds in some way to the case against him.  It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier.  It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.

Submissions

The prosecution submissions

20. [20]
    The prosecution argues the Crown case should be accepted in all the circumstances, where:

1. –The complainant’s evidence was clear and compelling and should be accepted;

1. –The timing of the alleged offence, so many years ago, was identifiable with reference to her daughter’s birth;

1. –Her demeanour was impressive and she made reasonable concessions including that she did not provide all the relevant detail to police in her initial statement to them and that she was very angry with the defendant at the time upon learning of the allegations concerning her daughter.

1. –Her complaint of anal rape is said to be plausible given that she had declined sexual advances from the defendant and was still in pain in the area of her vagina some months after the birth of her daughter.

21. [21]
    The prosecution also refers to some of the relevant directions and the way in which they should be dealt with.

Other discreditable conduct

22. [22]
    The prosecution refers to evidence of other sexual or discreditable conduct of the defendant, attracting the considerations in Benchbook direction 70.  The alleged conduct referred to includes other occasions of sexual intercourse where the complainant said the defendant forced himself on her throughout the relationship.  Further, she gave evidence that she had caught the defendant looking at child exploitation material on a computer.  There were also allegations of threats and controlling behaviour which are said to show the true nature of the relationship between the parties as well as assisting in explaining why the complainant did not complain earlier or immediately.  The prosecution argues that the complainant was fearful of the defendant who was the dominant force in the relationship and this explains her unwillingness to complain earlier.
23. [23]
    The relationship evidence referred to is not said to prove sexual interest by the defendant in the complainant; clearly enough they were, or had been, in a sexual relationship.  Thus the relevant direction is one referable to relationship evidence admitted for context and not to prove sexual interest (as set out at p70.7 – 70.8 Benchbook). 
24. [24]
    In my view it is appropriate that I give myself a direction along those lines.  In essence it is that having heard evidence of other alleged misconduct which has taken place between the defendant and the complainant, and which the prosecution argues is necessary to explain what occurred in the incident the subject of the alleged offence, it is important to understand that the relevance of such evidence is limited.  If I accept that evidence (as to the other alleged misbehaviour) it does not make it more probable that the defendant committed the alleged offence.  Rather it is relevant only to answer questions which might otherwise naturally emerge about the background to the incident which the prosecution alleges was the charged offence.
25. [25]
    The main thrust of this direction, as argued by the prosecution, is that the complainant was unwilling to “call out” inappropriate behaviour by the defendant.  The evidence, if accepted, may explain why the complainant did not complain earlier.  This is easier to understand if the background evidence shows that the alleged offence, to use a phrase from some of the authorities, did not arise “out of a clear blue sky”.
26. [26]
    On this issue, the defence does not resist the requested direction being given in accordance with the Benchbook.  However, the occurrences of discreditable conduct, which were not conceded, did not, in the defence argument, assist the complainant’s credibility in the way contended for.  The complainant had seen the defendant allegedly watching child pornography and, possibly, been raped on other occasions; yet these were things that she did not complain of to the police; a blow, so it is argued, rather than a bolster to her creditworthiness.  Moreover, the child pornography allegation does not sit well with the complainant allowing her daughter to be cared for by the defendant unsupervised in the time following having seen this alleged incident, and subsequent to herself being anally raped.  The defence argument is that the allegations of other discreditable conduct not previously complained of are things which bear adversely on the complainant’s creditworthiness and do not assist in answering questions which might otherwise naturally emerge about the background to the charged offence. I will return to these matters in the conclusion.

Delay causing significant forensic disadvantage

27. [27]
    The prosecution does not resist the proposition that there should be a direction as to delay in prosecution causing significant forensic disadvantage (set out in no. 65 of the Benchbook), and in my view it is appropriate to do so.  Thus, I must direct myself as to the effects of delay on the ability of the defendant to defend himself by testing the prosecution evidence or bringing forward evidence in his own case.  The specific difficulties encountered by the defendant in testing the evidence of the prosecution include the absence of medical evidence from a prompt medical examination which would have presumably followed a prompt complaint (this had the potential to, but would not necessarily have resulted in, injuries from an anal penetration which was said to have been unlubricated).  There is also a lack of DNA evidence potentially proving – or tending to disprove, by its absence – an anal penetration, particularly when it is alleged that the defendant ejaculated. 
28. [28]
    The prosecution submits that even if the complainant had participated in a prompt forensic medical examination, it is entirely possible that no injury would be discernible.  This may well be the case; there is no expert evidence in this matter as to the likelihood or unlikelihood of such an injury, although common sense dictates it would have been a strong possibility.  The prosecution also submitted that it is entirely possible that no DNA evidence would have been present.  This is less easy to accept.  In the context of an allegation of anal rape including ejaculation, it seems to me likely that some DNA evidence would have been present if there had been a desirably prompt examination, i.e. within a day or two of the offence.
29. [29]
    On this topic, the defence submits that a number of disadvantages emerge:

    1. the date of the alleged offence would be known, rather than a six-month period;
    2. if an immediate complaint had been made, a medical examination in the context of an unlubricated penetration is likely to have been informative; 
    3. the DNA testing particularly for spermatozoa is likely to have been productive in the context of the allegation of ejaculation.  Thus the absence of the ability to access DNA evidence or lack thereof places the defendant at a forensic disadvantage.
30. [30]
    Therefore, I direct myself, in terms of Benchbook direction no. 69, that the delay of about 10 years from alleged offence to complaint did affect the ability of the defendant to defend himself by testing the prosecution evidence or bringing forward evidence in his own case. In this regard, I refer to the following specific difficulties encountered by the defendant in testing the evidence of the prosecution or in adducing evidence in his own case. These difficulties include:

    1. the capacity of the complainant to accurately recall events that occurred 10 years ago and the possibility of distortion in recollection. This is exemplified by the feature referred to by the defence that the offence date is a six month period; this makes it difficult for the defendant to recall and refer to things such as where he was and what he or the complainant were doing on a specific date;
    2. as the defence submits, if an immediate complaint had been made, a medical examination in the context of an unlubricated penetration is likely – although not certain – to have been informative;
    3. the DNA testing, particularly for spermatozoa, is likely to have been productive    in the context of the allegation of ejaculation, if a prompt complaint were made.  Thus, the absence of the ability to access DNA evidence or refer to its absence places the defendant at a forensic disadvantage.
31. [31]
    These difficulties put the defendant at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence himself, or both. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
32. [32]
    Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant’s memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources, so as to test it. The complainant’s inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the defendant to throw doubt on her evidence by pointing to circumstances which may contradict her. Had the defendant learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant.
33. [33]
    Another aspect of the defendant’s disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on a particular date and to have been able to bring forward evidence to support him.
34. [34]
    I should also take into account that because of the delay, the defendant has lost the opportunity to bring forward evidence from sources including the evidence of potential injury or lack thereof, or evidence of DNA findings or lack thereof, referred to above.
35. [35]
    I thus direct myself that in considering the evidence in this case, I need to take into account the disadvantage the defendant is at, which means that the complainant’s evidence has not been tested to the extent that it otherwise could have been nor has the defendant been able to bring forward evidence to challenge it. I note the Crown’s submission that a timely examination may not have detected an injury or DNA; this is easier (although not straightforward) to accept for the injury than the DNA.
36. [36]
    The prosecution submits that no suspicion should attach to when and how the complainant ultimately complained.  It is said that the complainant gave reasonable explanations for the timeline including that she did not seek medical attention because she did not think about it, being scared and devastated.  If she went to the doctor she feared questions about what happened and then police contact which she did not want as the defendant was still her daughter’s father.  She also said that she was scared of the defendant.  Conversely, she said that she did not want him to go to prison, he being her daughter’s father.  She also said that she did not complain because she was afraid in regard to her daughter’s welfare.
37. [37]
    In this context the prosecution also referred to the nature of the relationship in which the defendant dominated the complainant, including, in the prosecution’s submission, “weaponising” custody of their child.  She said that in the context of arguments, if she attempted to leave he said she could not take her daughter and threatened that the judge (presumably of the Family Court) would not permit her to have the daughter.  This was apparently a repeated threat and, as the prosecution submits, was in the forefront of the complainant’s mind.
38. [38]
    These matters go some way to explaining the reasons for the delay, which is relevant to the extent to which it impacts on the complainant’s credit (although of course the delay is in any case not to be taken as impacting the complainant’s reliability; see below at [66]). They do not, however, dilute the defendant’s forensic disadvantage, which must be taken into account.

Cotic comment

39. [39]
    The prosecution also referred to what is commonly known as a Cotic comment (R v Cotic [2003] QCA 435), to the effect that there should be great caution against any assumption that victims of sexual abuse would or should behave in a particular way.  There is no textbook response as to how one should behave.  Everyone reacts differently in different circumstances and it is dangerous to make assumptions or apply pre-conceived notions as to how a complainant ought to act.  This is particularly so in relation to the delay of complaints, which the Royal Commission into Institutional Responses to Child Sexual Abuse commonly exemplified as being 10 years or more, particularly for child complainants.
40. [40]
    I accept that generally a Cotic comment is relevant in sexual cases. That is, however, normally in the context of complaints by children, rather than by mature adults; the judgment specifically referred to children.  The prosecution refers in this context to comments by Henry J in R v MCJ [2017] QCA 11 at [52].  However, as noted above those (no doubt apposite) comments refer to child victims, not adults. They have less force, in my view, in the present case where a mature adult is under consideration. I do accept, however, that there is no textbook standard of behaviour for victims of sexual abuse of any age.

Other matters touching on creditworthiness

Continued unsupervised access after seeing child pornography

41. [41]
    The prosecution submits that there should be no suspicion of the fact that the complainant continued to allow the defendant to have contact with their daughter after the observation of child pornography.  This is said to be explained by the fact that the defendant had not offended against the daughter nor was there evidence to suggest the complainant had a fear or suspicion that he might do so. 
42. [42]
    This is a difficult position to accept.  Whilst the complainant’s circumstances were no doubt difficult as, in effect, a single mother in a foreign country (albeit she had resided here for a number of years) where English was not her first language, it is hard to accept that she would have been put at ease merely by not having seen the defendant actually offend against their daughter.  Once she had seen the child pornography – after she herself had been raped by the defendant – it seems to me that some action or investigation was called for.  This is not alleviated in my view by the complainant’s explanation that the defendant was the parent of her daughter and supposed to protect her.  Child pornography, it seems to me, would be concerning enough to provoke some response rather than acquiescence in occasions of unsupervised contact.

Inconsistent version

43. [43]
    Clearly enough the complainant did not reveal the full nature of her complaints to the police in her statement.  The prosecution argue that she did not positively mislead them and that she was embarrassed.  She said that police did not ask her to explain what she meant when she said the word “sex” or “forced himself inside of me” nor, according to her, did the police ask the complainant to explain any particular detail about the sex she told them of. 
44. [44]
    The prosecution submits that any criticism regarding this aspect of the evidence should be directed at the police investigators’ “inability to properly investigate” and not the complainant.  This is a difficult submission to accept in the context that no investigating police were called as witnesses, by the party bearing the onus of proof.  There is simply no evidence as to the depth or details of their questioning.  Had the prosecution wished to ventilate such a criticism, they could have called the investigating police officers as witnesses, albeit the criticism would have to be raised, at least at first instance, in a non-leading way. The details of the questioning, if they helped the prosecution, could have been elucidated.
45. [45]
    On this topic, the defence submits that the nature of the complainant’s evidence in her statement to the police compared with her version at trial really amount to nothing other than an inconsistency.  Her first complaint should properly be understood as a vaginal rape.  That leaves the evidence as including a new inconsistent complaint made within a few days of the commencement of the trial that she was anally raped.  This is, in the defence argument, a severe blow to her creditworthiness.  Indeed, the complainant seemed to confirm that she made a deliberate choice to not tell investigating police that she was raped anally.  She said at page 1-81 of the transcript that, as to being anally raped, she did not tell the police that initially because she was embarrassed and disgusted, i.e. it was a deliberate choice to withhold that detail. This may be understandable but does not assist her credibility. It also erodes the idea that the police were at fault.

Motive to lie

46. [46]
    The prosecution submits that the motives to lie which were agitated – firstly, that she had a reason to fabricate aspects of her account concerning the defendant’s behaviour so as to put her in a stronger position if there were to be any arguments about custody of the daughter (where the defendant repeatedly threatened her on that topic) and, secondly, out of anger when she discovered the alleged offending against the daughter   – are not relevant to her credibility.  The prosecution does not, however resist the motive to lie direction being given, as I understand it.
47. [47]
    It is important to recall the purpose behind this direction which is set out as Direction No. 44 in the Benchbook.  It deals with a position where the complainant is asked questions as to her motive to lie as to the defendant’s conduct.  Importantly the direction continues that if the motive to lie is rejected, that does not mean the complainant is telling the truth, rather her evidence must be examined to see whether the prosecution has satisfied the tribunal of fact beyond reasonable doubt of the guilt of the defendant.
48. [48]
    In the result, I do note that the complainant was asked questions in cross-examination as to a motive for her to lie in her account concerning the conduct of the defendant, mainly that she was simply furious at the complaints made by the daughter. The second aspect, as to potential arguments as to custody, emerges on the complainant’s evidence.
49. [49]
    However, I direct myself that if I reject the motive to lie put forward on behalf of the defence, that does not mean the complainant is telling the truth.  I bear in mind that it is for the prosecution to satisfy me that the complainant is telling the truth; for it is the prosecution’s burden to satisfy me beyond reasonable doubt of the guilt of the defendant.

“Robinson” Direction

50. [50]
    The defence submits that the complainant is a witness whose evidence may require a special warning as set out in Direction No. 63 in the Benchbook.  This is confined by s 632 of the Criminal Code, in the context of a defendant potentially being convicted of an offence on the uncorroborated testimony of one witness.  The section makes clear that such a warning is not mandated but a comment may be made on the evidence given in the trial that is appropriate, as long as there is no suggestion that the law regards any class of witnesses as unreliable.
51. [51]
    In considering whether or not such a direction should be given, it is necessary to examine the various features which may found such a direction.  Some examples are given in the Benchbook, which include significant differences between accounts of the alleged offence by the witness. 
52. [52]
    In pursuing the need for such a direction, the defence refers to a number of features of which a few are the most relevant:

    1. the complainant’s ongoing animus towards the defendant, particularly because of his constant threats to unfairly remove the custody of her daughter from her;

2.  her animus towards the defendant at the time of her complaint in that she was aware of her daughter’s allegation against the defendant of sexual offending;

3.  her curious behaviour in permitting ongoing unsupervised contact between the defendant and her daughter despite (i) having been raped by him; and (ii) having seen him accessing child pornography;

4.  the deliberate withholding from investigating police, because of embarrassment, of the important detail that what she was complaining of was a penile/anal rape.

53. [53]
    It is submitted that although these features might not individually warrant a Robinson direction, in combination they do.
54. [54]
    The prosecution position is that it is not accepted that a Robinson direction is necessary, particularly in the context of the conceded direction about delay.

Is a Robinson Direction required?

55. [55]
    In resolving whether a Robinson direction is required in respect of the complainant’s evidence, the Benchbook assists.  Generally, the suggested directions direct the jury to scrutinise the evidence of the relevant witness with great care before arriving at a conclusion of guilt; that is not to say that the jury cannot act on their evidence but should be convinced of its truthfulness and accuracy bearing in mind the matters the subject of the warning.  A similar formula applies for certain types of “suspect” witnesses including indemnified witnesses and those who have given a section 13A statement.  It is interesting that witnesses with a mental disability, such as long-standing schizophrenia, are recommended to be dealt with by way of the more old-fashioned formula of “dangerous to convict”. 
56. [56]
    The prosecution resists a Robinson direction in the context of the other directions given, however also submit that if one were to be given the formula would be “scrutinised with great care” rather than “dangerous to convict”.  I conclude that this is a correct approach.
57. [57]
    As to whether the direction should be given, in Robinson itself (Robinson v R [1999] 197 CLR 162) the High Court, in a unanimous decision, explained the intended operation of the section including at paragraphs [20] and [21].  Although there is no requirement, either generally or in relation to particular classes of case, to warn a jury “that it is unsafe to convict the accused on the uncorroborated testimony of one witness”, that does not mean that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirements considered in Longman.
58. [58]
    In R v Reynolds [2015] QCA 111 at [39], it was explained as to when a Robinson direction should be given:

“The functional purpose of the Robinson direction is to convey to the jury the importance of cautiously scrutinising the evidence of the complainant. As the Robinson direction is of a special and exceptional nature, it will generally only be required in circumstances where the factual matrix giving rise to the “perceptible risk” is outside the ordinary experiences of the jury. Accordingly, although not a substitute for the “perceptible risk” test, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community.” (emphasis added)

59. [59]
    This a proposition relied on by the prosecution.  It is submitted that, because in this case the tribunal of fact is the Judge rather than a jury, it is not necessary to explicitly direct myself in relation to matters which are “perspicuous” (I think in context this means clear) to me.  That is, because I necessarily have the specialised experience that reveals the perceptible risk to me, it is not necessary to direct myself in those terms. 
60. [60]
    With respect, I am not sure that is correct.  Accepting the underpinning to that argument, namely that I do have the required experience to appreciate the perceptible risk, nonetheless in my view principles of transparency of justice require that, if I am taking into account, as I must implicitly be, factors which give rise to the perceptible risk, it is necessary that I reveal these matters in the written reasons for judgment. The best way of doing this is delineating what the relevant factors are and indicating whether or not I conclude, alone or in aggregate, that they give rise to the relevant need for caution in the fact finding process.
61. [61]
    In R v Pollard [2020] QCA 188, Sofronoff P explained the context for the direction in paragraphs [27] to [29].  His Honour noted, inter alia, at [28] that what is at issue

“…is the degree of reliability that the jury ought to demand from the evidence before announcing itself satisfied beyond a reasonable doubt of the guilt of the accused.  The long experience of judges and lawyers who practice criminal law … teaches that there are recurring factors in the cases that can render testimony suspect. When factors exist in a case that affect the reliability of evidence, whether for reasons to do with the possible dishonesty of a witness or for reasons to do with sheer reliability, it is the duty of the judge to give the jury the benefit of judicial experience by instructing a jury about the known risks.” 

To this I would add, in the present context of a judge alone trial, that if I reached the conclusion that the case was one where factors affecting reliability of evidence should be taken into account in the relevant sense, it is duty of the judge to make explicit the fact that the factors are being taken into account, to what affect.

62. [62]
    In paragraph [29] his Honour continued:

“The real question for a trial judge is whether, in the case at hand, there are such features and whether these features warrant judicial instruction. If such features exist and the conduct of the case dictates such a course, the judge ought to warn the jury about the existence of these factors so that the jury is armed with the necessary knowledge to consider the evidence in its true forensic context. This is simply a matter of ensuring that the jury has the necessary mental equipment with which to deal rationally with the evidence.”

Again, if such features exist and should be taken into account, in my view a trial judge sitting alone ought to make the taking account of those features explicit.  This is a requirement of open justice; making the reasoning process clear.

63. [63]
    I also take into account the observations of Sofronoff P in R v VM [2022] QCA 88 at [39].  As was outlined in Tully v The Queen [2006] 230 CLR 234 per Crennan J at [179], a trial judge is required to identify to the jury features which the judge considers warrant a specific warning, the reasons for the warning, and the proper response to it (that is, to scrutinise the evidence with care).  The reason for the warning is often that the particular evidence under discussion is the critical evidence in the case, which is of course the case here. 

Conclusion re: Robinson Direction

64. [64]
    The features which, in my view, do give rise to the requirement for a Robinson direction are:

1.  the complainant’s ongoing animus towards the defendant, particularly because of his constant threats to unfairly remove the custody of her daughter from her;

2.  her animus towards the defendant at the time of her complaint in that she was aware of her daughter’s allegation against the defendant of sexual offending;

3.  her curious behaviour in permitting ongoing unsupervised contact between the defendant and her daughter despite (i) having been raped by him; and (ii) having seen him accessing child pornography;

4.  the deliberate withholding from investigating police, because of embarrassment, of the important detail that what she was complaining of was a penile/anal rape.

65. [65]
    I note, of course, that the delay in complaint, which is the subject of a separate direction about particular forensic disadvantage, does not represent a feature giving rise to a Robinson direction.  Section 4A(4) of the Criminal Law (Sexual Offences) Act 1978 provides that the jury must not be told that the law regards the complainant’s evidence as more or less reliable only because of the time taken by the complainant to make a preliminary or other complaint.  Of course, subsection (5) of that section provides that the judge may make any other comment to a jury on the complainant’s evidence that it is appropriate to make in the interest of justice.  I also note the Cotic comment already referred to above.
66. [66]
    Therefore, in the result, I direct myself that the complainant is the critical witness in this case.  I do need to scrutinise her evidence with great care before arriving at a conclusion of guilt.  That is not to say that I cannot act on her evidence.  But I conclude that I should only do so if I am convinced of its truthfulness and accuracy, bearing in mind the matters outlined above, which may have some effect upon her reliability.

Defence submissions

67. [67]
    The defence emphasises that the onus is on the prosecution to prove the charge beyond reasonable doubt and argues that on the complainant’s evidence there ought to be a reasonable doubt.  Essentially the defence rely on the four factors in paragraph [64] above as individually and collectively damaging to the complainant’s credit.
68. [68]
    In all the circumstances, the defence argument is that there are significant credibility issues with the complainant’s evidence.  Further:

1. –I must take into account the significant forensic disadvantage flowing from the delay;

1. –There is a motivation to lie; and 

1. –In the context of a Robinson direction and the factors giving rise to it, there is simply too much concern about the quality of the complainant’s unsupported evidence to reach a conclusion of guilt beyond a reasonable doubt. Scrutinising it with great care produces the result that it could not be accepted to the required standard.

Conclusion

69. [69]
    It is central that the complainant’s evidence must be carefully assessed; it is the only evidence proving the offence. Referring to some of the features mentioned as assisting the assessment of witnesses in fact finding in the Benchbook:

1. –Demeanour: I do not find the complainant’s demeanour to be of much help, either in favour of or against her creditworthiness. I do not accept her demeanour was damaging to her credit, particularly where English is her second language (see [10] above);

1. –Unlikelihood: Her version contains features which are somewhat unlikely, in my view; in particular it is difficult to accept that she allowed her daughter to be cared for unsupervised by the defendant in the circumstances in paragraph [64](c) above. This might be easier to understand if it occurred under protest, but the complainant seems to have been somewhat sanguine about it, for reasons I find difficult to accept;

1. –Consistency: Her recent complaint of anal rape does in my view amount to an inconsistency;

1. –Generally I take into account the features outlined in [64] above.

Applying the Robinson direction, her evidence must therefore be scrutinised with great care before concluding guilt.

Other discreditable conduct

70. [70]
    I would find it difficult to make definitive findings as to the previous discreditable conduct referred to by the prosecution. It may well be that there were examples of previous misbehaviour by the defendant, but the evidence thereof is not so compelling as to allow definite findings to be made. Thus these matters do not provide a sufficient context to allow the use of them in the way contended for by the prosecution; they do not explain what would otherwise seem curious, in particular the curious acquiescence in the unsupervised care of the daughter.

Is the complainant’s evidence inconsistent?

71. [71]
    I do find the complainant’s evidence to have been inconsistent in that she deliberately withheld the detail from investigating police that her complaint was of anal rape. This is, as outlined, a challenge to her creditworthiness.

Delay

72. [72]
    There is also significant forensic disadvantage to the defendant as a result of the delay. Thus the complainant’s evidence has not been able to be tested fully nor has the defendant been able to bring forward evidence to challenge it. While this does not, of itself, make it dangerous or unsafe to convict - see [56] above – the disadvantage is taken into account.

Result

73. [73]
    The circumstances of the case and the quality of the evidence as outlined above, in the context of the directions which I have given myself and which must be accorded full weight, drive me to a conclusion of not guilty.  As the standard directions set out, the standard of proof of beyond reasonable doubt is a high one.  It is, for example, higher than the civil standard.  Even if I reached the conclusion that the defendant was probably guilty, this would still leave me in a state of reasonable doubt. The defendant may well have misbehaved in the way alleged by the complainant, or something similar, but I am not able, in the context of the challenges to her credit and the directions which must be followed, to accept her unsupported and challenged evidence to the required standard; overall there is a reasonable doubt.
74. [74]
    This is the position I find myself in having considered the evidence and acted upon the relevant directions, and accordingly the defendant is found not guilty.