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[2020] QCA 233
Court of Appeal (Qld)
2020-10-27
Sofronoff P and Morrison JA and Jackson J
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Allen (a pseudonym) [2020] QCA 233
PARTIES: R / v / ALLEN (a pseudonym) / (appellant)
FILE NO/S: CA No 122 of 2020 / DC No 165 of 2019
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 17 June 2020 (Dearden DCJ)
DELIVERED ON: 27 October 2020
DELIVERED AT: Brisbane
HEARING DATE: 8 September 2020
JUDGES: Sofronoff P and Morrison JA and Jackson J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant submits that the verdict was unreasonable having regard to the evidence (ground 1) – whether the verdict of the learned trial judge was unreasonable or insupportable having regard to the evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant gave a sworn denial at trial – where the appellant submits that the learned trial judge did not give adequate reasons for rejecting the appellant’s evidence (ground 3) – where the appellant submits that the learned judge misdirected himself in finding that the complainant’s evidence was “capable of being accepted beyond a reasonable doubt” (ground 5) – where the appellant submits that, as an alternative to ground 5, the learned trial judge failed to give adequate reasons for finding that the complainant was a reliable witness having regard to her answer that she didn’t “know if [the offending] happened or not” (ground 6) – whether the learned trial judge’s directions were capable of being misdirections / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – DISMISSED – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant had applied for the police interview to be excluded from evidence – where the appellant submits that the learned judge erred in failing to exclude the evidence (ground 4) – where the appellant submits that it was inexpedient in the interests of justice to admit the s 93A evidence – where the appellant submits that it was unfair to the appellant because the evidence was unreliable and he experienced an inability to cross-examine the complainant child – whether the evidence was properly admitted / Criminal Code (Qld), s 615C / Evidence Act 1977 (Qld), s 21AA, s 21AK, s 93A, s 98, s 102, s 103, s 130 / Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, considered
COUNSEL: K W Gover for the appellant / J D Finch for the respondent
SOLICITORS: TWC Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: This is an appeal from three guilty verdicts at a judge alone trial. The appellant, to whom I shall refer by the pseudonym “Allen”, was found guilty and convicted by Dearden DCJ on three counts of unlawful and indecent treatment of a child under 12 years.
The unfortunate circumstances of the case were typical of many trials of such offences. The only witness to the offences was the complainant to whom I will refer by the pseudonym “Cara”. She was five and a half years old. On 4 October 2017 Cara’s parents went out for the night and left her and her younger brother, whom I will call “Sean”, in the care of their maternal grandmother. The appellant was then 31 years old and he was still living with his mother, Cara’s grandmother. Cara’s grandmother, whom Cara called “Nanna”, had bathed her and was then doing her best to get Sean to have his bath. She was in the lounge room from which, she said in evidence, she could not see into the spare bedroom in which the appellant kept the computer on which he played games. Sean had bargained for, and got, a promise from Nanna that he could play for a further five minutes before he had to have his bath. Nanna was anxious to bathe him before Sean’s parents came home, which she expected them soon to do. For that reason she was watching the clock and noted that it was “6.42 [pm] and 10 seconds”. Cara was with her. The appellant was in the spare room. Nanna suggested that Cara go to the spare room to see if she could get a turn playing on the computer and Cara left. According to Cara’s evidence, she went into this room and the appellant said to her that he was going to play with her vagina. While sitting in his chair, he positioned Cara upon his lap, upside down with her head hanging down between his legs and with her legs upon his own legs. He then fondled her genital area through her pyjama pants. This was count 1 on the indictment. He then repositioned Cara so that now her legs were on his shoulders and her head was still hanging down. He touched her genital area again in the same way. This was count 2. After this he placed her on the bed that was in the room and pulled down her pyjama pants. He placed her on all fours, on her knees, and covered her head with a blanket. He then licked her vagina. This was count 3. He told Cara, “Don’t tell anyone.”
But Cara did tell someone. She immediately left the room and found her grandmother still in the lounge room. Nanna noticed the time again. It was now 6.45 pm. Cara said, “Uncle [Allen] touched my vagina”. Nanna responded, “Really? Are you telling me tales?” Cara said, “No.” Cara’s grandmother led her to confront the appellant in the spare room and said to him, “What the hell’s going on?” The appellant replied, “What are you talking about?” Nanna said to Cara, “Will you tell Uncle [Allen] what you said.” Cara said, “Uncle [Allen] touched my vagina.” The appellant responded, “What the fuck?” Nanna led Cara from the room. The appellant said, “She can’t come back in here again if she’s going to be making up stories like that, Mum. That’s not right.” Cara and Nanna returned to the lounge room. According to her grandmother, Cara’s demeanour and attitude were then entirely normal.
“SCON CANNING: Yep. No that’s okay. So what have you come here to talk to me about today --
[CARA]: Um, my uncle played with my vagina.
SCON CANNING: Okay. So tell me everything about that, and start at the very beginning.
[CARA]: Um he, he put me um anywhere where I cannot see what he was doing.
SCON CANNING: Tell me more about that.
[CARA]: Um he put me upside down so I couldn’t see it.
SCON CANNING: Tell me more about that.
[CARA]: Um I dunno anymore.
SCON CANNING: Okay. When you say he put you upside down, what do you mean?
[CARA]: Um to play with my vagina.
…
SCON CANNING: Mm, okay. So you said before that um, that he played with your vagina, when did that happen?
[CARA]: Um last night.
SCON CANNING: Last night? So can you tell me everything about last night?
[CARA]: Um-
SCON CANNING: From the time you go to Nan’s.
[CARA]: Um not really that much stuff.
SCON CANNING: Yep. What--
[CARA]: But-
SCON CANNING: Did you do?
[CARA]: Um played the video game with Uncle [Allen].
SCON CANNING: Yeah, tell me more about that.
[CARA]: Um it was a S-, Toy Story one.
SCON CANNING: Yep.
[CARA]: And um then he just started, and then he told me he would play with my vagina.
SCON CANNING: So tell me more about what he said.
[CARA]: So he only said he would play with my vagina, and then and I, he um put me on the bed and put a blanket over me. He, I thought he put his tongue in, on it, but, and he said no, so I don’t know [if] that actually happened.
SCON CANNING: Can you tell me more about the blanket?
[CARA]: Um the blanket was just white and soft.
SCON CANNING: And you said you thought he put his tongue on your vagina. What--
[CARA]: Yeah.
SCON CANNING: What makes you think that?
[CARA]: Um-
SCON CANNING: Tell me more about that--
[CARA]: ‘Cause it felt like a tongue and it was like slimy and just like that.
SCON CANNING: Yep. And then, then what happened?
[CARA]: Um I went and told my N-, Nanny.
SCON CANNING: Okay. So when he stopped what you thought was him licking your vagina, what happened--
[CARA]: Yeah.
SCON CANNING: Straight after that?
[CARA]: Um I just went and told Nanna, but straight after it he said, don’t tell anyone. But I told Nanna.
SCON CANNING: Yep. Okay. Did he say anything else?
[CARA]: Um no.
SCON CANNING: No. And where were you-
[CARA]: Um-
SCON CANNING: When that happened?
[CARA]: In the bedroom study.
SCON CANNING: And call [sic] you tell me about that room?
[CARA]: Um it has toys and a bed and a computer and headphones and a sound speaker thing and a cupboard.
SCON CANNING: Can you tell me more about the cupboard.
[CARA]: Um I don’t really s-, um open the cupboard.
SCON CANNING: Yep. Just, can you describe it?
[CARA]: Um it has white doors and everywhere on it’s white. And the doors are a sliding door. And it doesn’t have a mirror.
…
[CARA]: Yeah. He told he [me] would be doing that.
SCON CANNING: Okay. And what did you say after, or what happened right after he said, I’ll play with your vagina?
[CARA]: Um he started playing with it.
SCON CANNING: Okay. You said before, you described your pyjamas to me. So what were your pyjamas doing when he was doing that?
[CARA]: Um they were on me.
SCON CANNING: Yep.
[CARA]: And they were just so, and they were just still.
SCON CANNING: What do you mean?
[CARA]: The pyjamas were still ‘cause they’re not a living thing.
SCON CANNING: True that. But so when he was, you said he was licking your vagina. Where, how, how was that happened?
[CARA]: Um he pulled my pyjama pants down to the knees.
SCON CANNING: And can you describe how he did that?
[CARA]: Um he pulled them down to my knees and then he just started um j-, playing with my vagina.
SCON CANNING: And when you say playing with your vagina, what do you mean?
[CARA]: Um he pulled my pants down and um first put me upside down on the chair and then um, um, put me on his shoulders and, and then he put me on the bed.
…
SCON CANNING: … And then you said he pulled your pants down just--
[CARA]: Ah.
SCON CANNING: Before you got on the bed?
[CARA]: Yeah.
SCON CANNING: And how, tell me how he pulled your, pulled your pants down?
[CARA]: Um he lift, he like pulled, he just gently pulled like a, the um, the end of it, and then he pulled it off, down.
SCON CANNING: Yep. And tell me more about how he put you on the bed.
[CARA]: Um he lift me up and put me on it.
SCON CANNING: And how were you lying on the bed?
[CARA]: Um I wasn’t actually lying, first I was lying and then I was like standing like a dog ‘cause um h-, ‘cause Uncle told me.
SCON CANNING: Yep. Tell me more about that.
[CARA]: Um that’s all I know.
SCON CANNING: Yep? You said that you were sort of sitting like a dog?
[CARA]: Yeah.
SCON CANNING: Yeah. Tell me more about that.
[CARA]: Um so that’s all I was actually doing.
SCON CANNING: So I know a dog can sit a lot of different ways, so what way are you talking about?
[CARA]: Um I wasn’t sitting, I was standing -
SCON CANNING: Yep --
[CARA]: Like a dog. So my knees were on the bed like scrunched up like this.
SCON CANNING: Yep.
[CARA]: And my hands were on the bed like this.
SCON CANNING: Yep.
[CARA]: And my head was like um down.
SCON CANNING: And where was your uncle?
[CARA]: Um on the outside of the bed, and I was on the bed with the blankie up with me.
SCON CANNING: Okay. And so you said you were on the knees and your arms?
[CARA]: Yeah.
SCON CANNING: Yep. And where was he s-, standing or--
[CARA]: He was standing behind me.
SCON CANNING: Behind you?
[CARA]: Yeah.
SCON CANNING: And then what happened?
[CARA]: Um and then I, and then when he was finished, he told me, don’t tell anyone, and I went and told Nanna.
…
SCON CANNING: No. So you told, you told your Nan? What did you --
[CARA]: Yeah.
SCON CANNING: Tell your Nan?
[CARA]: Um I told her, um Uncle [Allen] was playing with my vagina and then she went and told, went inside and Uncle [Allen] lied to Nanna. He, he shook his head by saying no, but he actually did it.
SCON CANNING: And where were you when he was lying--
[CARA]: Um next to Nanna.
SCON CANNING: And then what happened?
[CARA]: Um then mummy and then, mummy and daddy arrived and then when mummy was sitting next to Nanna um, Nanna told her and then um, um mummy wanted me to tell her what happened. And I tell her, and I told her, and, and then um m-, and then mummy um knowed [sic] what actually happened.
SCON CANNING: What did you tell your mum?
[CARA]: Um Uncle [Allen] played with my vagina, and I felt like he put his tongue on my vagina.”
A hearing took place pursuant to s 21AK of the Evidence Act 1977 (Qld) at which Cara gave some further evidence and was cross-examined. That hearing was held on 12 February 2019, that is to say, 16 months after the relevant events. By then, Cara was almost seven years old. She could remember that the computer was in a particular place in the spare room but could not recognise a photo of a chair in the room. She recalled speaking to police about the matter. She watched a recording of her interview. She said that what she had told police was true.
Her cross-examination was, in substance, the following:
“Okay. Do you remember why you were there?---Yes.
All right. Why were you there at your Nan’s house?---I think – I don’t remember.
Do you remember playing computers in the computer room?---No.
Do you remember your grandma telling you to go and have a bath?---No.
Do you remember having a bath that afternoon?---Yes.
…
After your bath, do you remember going back to the computer room?---I forgot.
You forgot. Did you say you forgot?---Yes.
You said in the – to the police officer – to the lady police officer, you said that Uncle [Allen] touched your vagina. Do you remember saying that?---Yes.
Did you see his hands at all?---I don’t know.
If you didn’t see his hands, are you sure that Uncle [Allen] touched your vagina?---I don’t know if it happened or not.
And what about the licking. Do you know if that happened or not?---No.
Thank you, your Honour. I don’t have any further questions.”
“[Cara], you told police about your legs hanging onto the chair on his lap. Do you remember that?---Yeah. Yeah.
Do you remember that? Do you remember when your legs were there where his hands were?---I don’t know.
Okay. Do you remember where your head was?---Hanging off the chair.
Is that why you couldn’t see him?---Yes.
Could you feel him?---Yes.
Where could you feel him?---The legs.
Okay. And do you know what the feeling was on your legs?---I don’t know.
Could you feel him on any other parts of your body?---I don’t think so.”
The appellant gave evidence. It was brief. He said he was in the spare room playing games on his computer and that Cara had been in and out of the room. Then his mother and Cara had come into the room and his mother had put Cara’s allegation to him. Consistently with his mother’s evidence, he said that he had reacted with surprise, saying, “What the fuck?” and then “I don’t want her in here any more if she’s going to be making that up.” He denied doing any of the acts alleged against him. In cross-examination the allegations were put to him and he denied them.
At a preliminary hearing, at which Farr SC DCJ had presided, the appellant applied to exclude Cara’s police interview which was to be tendered pursuant to s 93A of the Evidence Act. Farr SC DCJ refused the application and, by ground 4 of his amended grounds of appeal, the appellant contends that his Honour erred in failing to exclude the evidence.
The appellant relies upon s 98 and s 130 of the Evidence Act. Section 98 provides:
“(1) The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.
(2) This section does not affect the admissibility of any evidence otherwise than by virtue of this part.”
“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”
The ground of exclusion in s 98 is that it is expedient “in the interests of justice” to exclude the statement. The ground of exclusion is s 130 is “it would be unfair to the person charged to admit the evidence”. The appellant submits that a combination of the unreliability of the evidence and his inability to cross-examine the complainant effectively satisfies those grounds. In a case like the present, the interests of justice referred to in s 98 and the unfairness referred to in s 130 raised a question whether the trial would be unfair to the appellant if the evidence were to be admitted. In the circumstances of this appeal, the unfairness is to be found in the risk of a wrongful conviction upon unreliable evidence that could not be tested.
The parties in this appeal referred to previous cases in which the unreliability of contested evidence was discussed as a ground of exclusion1 and other cases in which an inability to cross-examine a child was considered.2 Those are indeed factors that might well impinge upon the fairness of the trial in a way that is relevant to the discretion conferred by the two provisions. But, as the appellant correctly submits, the test is to be found in the text of the statutory provisions and not in judicial statements concerning the application of the provisions to particular circumstances.
That being so, the question is whether the matters raised by the appellant could justify an exercise of discretion to the exclude the evidence.
It must be a rare case in which evidence would be excluded pursuant to ss 98 or 130 merely because it is said to be unreliable. If evidence is unreliable, it will be given no weight and, in a particular case, such unreliability would lead to a reasonable doubt. Sometimes the complete unreliability of evidence is demonstrated by cross-examination after it has been admitted and sometimes it is demonstrated by evidence tendered afterwards that falsifies the earlier evidence. That does not render the impugned evidence inadmissible; it renders it of no weight.
There is a statutory recognition of this familiar aspect of the law of evidence. Section 102 provides:
“102 Weight to be attached to evidence
In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—
(a) the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and
(b) the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.”
Section 102 applies to Part 6 of the Evidence Act in which s 93A appears. Consequently, under both the common law of evidence and pursuant to s 102 of the Evidence Act, the criticisms of the complainant’s evidence may well have an effect upon the probative effect of that evidence. It does not touch its admissibility.
The appellant’s complaint about his inability to cross-examine raises a different issue. In substance, the appellant’s submission is that the trial process was unfair because the appellant was unable to test the critical evidence. That submission must be rejected for there was no such inability and, even if the complainant’s answers in cross-examination could be construed as obstructing the appellant’s ability to test her evidence, there was no unfairness.
Section 103 of the Act provides, inter alia, that s 93A shall be construed as in aid of any other provision of the Act and so s 93A, which concerns the admissibility of statements made by children, and Division 4A of Part 2 of the Act, which deals with evidence given by affected children, are complementary to each other. There are several purposes evident in these provisions. One of them, of course, is the purpose of limiting a child’s exposure to the stresses and trauma of the legal process.3 However, another important object of s 21AK, which the statute itself states to be an express object, is to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence.4 That integrity is ensured by the combination of the admissibility of the statement admitted under s 93A and the amelioration of the stresses inherent in the experience of giving evidence which is afforded by Division 4A of Part 2.
The statutory process is not designed just to make the child comfortable for the child’s sake, although that is one of the objects. The larger purpose is to increase the likelihood that the child’s evidence is accurate. This is done by ensuring that the initial questioning is not only done in a setting that reduces stress, a condition that does not enhance reliability, but also that it is done by police officers who have received training in how to question children in a way that is calculated to reduce the risk of inaccurate or false accounts. One of the most obvious features of that aspect of the process is the care taken by trained interviewers to avoid leading questions. There are other features which frequent readers of transcripts of such interviews notice, such as the use of extremely open questions.
While the criminal standard of proof applies just as much to the evidence given by a child as it does to the evidence given by an adult, it is well understood and accepted that the factors taken into account to assess the reliability of the evidence of young children are not the same as those affecting the reliability of the evidence of adults. A child may not view events with the understanding of an adult, may be unable to recall important details that would be prominent in an adult’s recollection and may lack the linguistic ability to recount events or to explain them. Immaturity may lead a child into avoidance techniques when being questioned. Most importantly, as everyone who has any experience of young children knows, although in common with adults, the recollection of a child will be more accurate close in time to the relevant events, a very young child’s memory of events tends to fade very quickly.
“a. The only spontaneous disclosure made by the complainant was to [Nanna], alleging “Uncle [Allen] touched my vagina”. This allegation then evolved over time in response to specific questions from her parents and police;
The sequence was [sic] events was inconsistent in important respects: the sequence of the offences and when the complainant’s pyjama pants were pulled down;
Although the complainant was able to describe matters of ordinary childhood experience in detail, her descriptions of the alleged offending are far less detailed and only arose when she was prompted by narrow questions” (footnote omitted)
That there was only one “spontaneous disclosure” made by Cara is unsurprising. Having told her grandmother what had been done to her, from the point of view of a five year old child, the business of disclosure had been concluded. Thereafter, of course, for reasons that one would regard as beyond her capacity to understand, there had to be further unravelling. But that was hardly the business of a five year old girl.
Nor was it surprising or redolent of unreliability that Cara’s account of what happened “evolved” over the course of several interviews. It would be surprising if that were not so. In the first instance she reported the matter to her grandmother, succinctly but entirely consistently with all of her later accounts. It was natural that, having been met with the question whether she was “telling tales” and also with the appellant’s contradiction, this child had no more to say to Nanna. She was then questioned by two sets of people, each of whom had different purposes in asking their questions. Cara’s mother’s purpose was probably to ensure that her daughter had not been physically harmed and also to establish the extent, and so the seriousness, of the incident. Cara’s responses to her mother were affected by the terms of her mother’s inquiries and also by the relationship between mother and daughter. She was likely to be more open with her mother than with her grandmother, particularly in the circumstances already described. The object of the evidently trained police officers who questioned her was purely forensic. The complainant’s responses would be mediated, once again, by the terms of their inquiries, their expertise in obtaining descriptions from children making such complaints and by the surrounding circumstances of the interview, including the nature of the relationship formed between Cara and the police officers, as Cara appreciated it. These differing circumstances may well affect the child’s appreciation of what is and what is not of significance and, therefore, affect what is said. These are all matters that cannot be weighed with great precision but which must be taken into account as essential context when considering whether any changes in a child’s account of complaints of sexual offences truly reflect upon the reliability of the child’s evidence or are the natural consequence of the circumstances surrounding each instance upon which the child was giving an account. Inconsistencies in a complainant’s evidence may be very significant in eroding the reliability of the description of an alleged offence. But merely to assert the existence of inconsistencies, in isolation and apart from a consideration of the whole context in which several accounts have been given about the same events, is not rational criticism. It remains mere assertion.
The first three factors raised by the appellant fall into this category and should be rejected as effective attacks upon the reliability of the evidence.
The fourth factor, that the acts described that constituted count 3 were “physically impossible”, can be disposed of shortly. Cara’s account was clear and rational. According to the complainant, after removing her pyjama bottoms, the appellant placed Cara on the bed on her hands and knees and, positioning himself behind her, licked her vagina. There was nothing impossible about it.
“615C Judge’s verdict and judgment
(1) In a trial by a judge sitting without a jury—
(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2) Without limiting subsection (1), chapter 67 applies with all necessary changes in relation to a person to be tried, being tried, or tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.
(3) The judgment of the judge in a trial by a judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
(4) The validity of the proceeding is not affected by a trial judge’s failure to comply with subsection (3).”
The reference to “findings” in subsection (1)(a) is a reference to the finding on the question of guilt. It refers to the finding of ultimate guilt or otherwise.5 The reference to “findings” in subsection (3) is a reference to the findings of fact that support the ultimate conclusion.
The appellant submitted that his Honour did not expose his reasoning process leading to his rejection of the appellant’s evidence. He submitted that his Honour did not refer to the appellant’s demeanour, to the arguments of counsel about the appellant’s credibility or any features of the appellant’s version of events that were internally inconsistent or implausible.
With respect to the complainant’s evidence, the appellant submitted that the complainant’s acceptance in cross-examination that she doubted whether the events occurred was a “key weakness” in the Crown case which the learned judge was obliged to address and resolve in his reasons but that his Honour failed to do so.
As has already been said, the appellant’s evidence in chief was very brief. After giving a narrative of his actions during the evening, which on his account were entirely innocent, in response to questions from his counsel he denied the three episodes of indecent dealing. The cross-examination was similarly short. After extracting some information from the appellant about some episodes of the complainant’s behaviour that the appellant used to find irritating, and after eliciting that for several years he had not had a relationship of any kind with a woman, the prosecutor put the allegations to him and the appellant denied them.
There were no peripheral facts upon which the prosecutor could cross-examine the appellant to make a case based on inferences from circumstances. The forensic issues in the trial lay with the matters raised in the complainant’s evidence: any inconsistencies in her accounts, suggested implausibilities in her description of the offending, her lack of memory when cross-examined, and so on. As is often the case in trials of this kind, the issue, forensically speaking, was not whether the appellant was telling the truth, it was whether the complainant should be believed to the degree necessary to achieve satisfaction of guilt beyond a reasonable doubt. As to that issue, which was the real issue, both legally and forensically, the parties joined issue and the learned judge approached his reasoning accordingly.
In his closing address, defence counsel made the following points about the complainant’s evidence:(a)It was uncorroborated;(b)It contained inconsistencies;(c)She could not be cross-examined effectively;(d)The occurrence of the events was implausible having regard to:(i)the door of the bedroom being open;(ii)the proximity of the grandmother and the complainant’s brother;(iii)the short time frame;(iv)the complainant’s lack of distress;(v)the appellant’s apparent shock when confronted;(vi)the appellant’s consistent denials;(vii)the incredibility of the account of the complainant’s being held upside down;(e)The complainant’s evidence about the nature of the cupboard in the bedroom was wrong;(f)The complainant’s evidence about the colour of the appellant’s hair was wrong; and(g)The complainant’s evidence about the clothes worn by the appellant was contrary to his evidence.
“I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”
“Reasons for judgment which are replete with pointed references to the great advantage which the trial judge has had in making the personal acquaintance of the witnesses seem nowadays to be treated by appellate courts with a healthy measure of scepticism. What might be called the Pinocchio theory, according to which dishonesty on the part of a witness manifests itself in a fashion that does not appear on the record but is readily discernible by anyone physically present, seems to be losing popularity.”7
“These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.”8
In this case, because Dearden DCJ made no reference to any aspect of the appellant’s demeanour when giving evidence, it should be accepted that there was nothing adverse to the appellant’s credit to be detected in his demeanour. Nor was it possible to identify any objective flaws in the evidence. The appellant’s testimony amounted to a simple sworn denial that he had committed the offences. That was worth a great deal because, as his Honour correctly directed himself, he might accept that evidence or he might not accept it but still be left with a doubt. Of course, for the reasons given, he could also reject it. In the latter instance, it was necessary still for his Honour to determine if he was satisfied that the prosecution had proved its case. That required his Honour to give consideration to the complainant’s evidence. Nevertheless, his Honour was not obliged to accept the appellant’s evidence just because it was given in a way that was, on its face, plausible.
Although, in accordance with established principle, juries are instructed about the ways in which an accused’s evidence is to be treated, in the same way as his Honour instructed himself, it should not be thought that the usual direction requires a strictly sequential logical path of reasoning that requires a consideration, first of all, whether the defendant’s evidence is accepted, whether it is not accepted but creates a doubt or whether, as the possible final alternative, it is to be rejected before moving, in sequence, to a consideration whether to believe the prosecution witness. Real thinking about forensic issues might usefully be broken down in that way so as to produce a clear and understandable model of the principles relating to the operation of the onus of proof in a criminal trial. But it must be remembered that this common direction is just that: a direction about the workings of the onus of proof. It is not a model that a fact finder is obliged to follow as a strict logical path. The present case is an example of this. The appellant’s evidence could not be considered first and in isolation. Considered on its own, it would be impossible to decide it significance. The salient point in this case, for the reasons that have been given, was whether the complainant’s evidence was so believable that it should be accepted as proof of guilt and the appellant’s evidence should be rejected. That is what his Honour did.
His Honour was obliged to consider the complainant’s evidence against the background of competing considerations about it that were placed before him. He had to resolve those competing considerations by a process of disclosed reasoning. In my respectful opinion his Honour detailed the matters that he had to address, including warnings that the case raised concerning the process of fact finding, gave due consideration to these matter and then, in a way he explained, made findings which he articulated. The penultimate finding was that he accepted the complainant as a truthful witness. That meant, inevitably, that he rejected the appellant’s denials as false.
R v Morris; Ex parte Attorney-General [1996] 2 Qd R 68; R v FQ [2008] QCA 68; R v D [2003] 141 A Crim R 471; [2003] QCA 151. ↩
R v D, supra; R v T [1996] QCA 463. ↩
See s 21AA(b). ↩
Section 21AA(a). ↩
Fleming v The Queen (1998) 197 CLR 250 at [25]. ↩
(2006) 66 NSWLR 186 at [24]. ↩
Ibid, [26]. ↩
Ibid, [27]. ↩
cf. Fleming v The Queen, supra, at [46]. ↩
R
Allen
(1998) 197 CLR 250
(2006) 66 NSWLR 186
Cara’s parents came home and Nanna reported these events to them. Cara’s mother, whom I will call “Margaret”, spoke to her daughter, she said, “Mummy’s told you before, you know, that I’ll always believe everything you say, but don’t lie to me, because … I won’t be able to trust you.” She then asked Cara what had happened and she repeated that Uncle Allen had touched her vagina. Later, at home when Margaret and Cara’s father were putting her to bed, Margaret asked Cara for more detail. She asked where Cara had been touched and what Allen had used to touch her. Cara said that Allen had licked her vagina. Margaret asked Cara to show her. Cara said that she couldn’t remember because she couldn’t see. Margaret gave her a doll and asked Cara to show what had happened. Cara manipulated the doll and, after some efforts, held the doll so that it was upside down and then she said, “He put me on the bed, covered my face with the blanket, and that’s when he touched my vagina with his tongue.” She said that Allen had pulled her pants down and described the blanket that he had used to cover her head. The next day, after speaking to Cara’s school principal, Cara’s parents reported the matter to police who interviewed Cara on the same day. Relevantly, Cara told the interviewing officers the following:
Section 93A of the Evidence Act is founded upon the sound assumption that the earliest account given by a young child is likely to be the most accurate account. It is this assumption which justifies a prosecutor asking a child, who is giving evidence pursuant to s 21AK at a later trial, whether the account tendered under s 93A is true and it is the assumption which can justify a jury’s acceptance of an affirmative answer. It is why s 21AA states, as has already been pointed out, that one of the objects of Division 4A of Part 2 of the Act is to preserve, to the extent practicable, the integrity of the evidence of an affected child. The result of the practice that has developed around the use of the provision is that the jury has, potentially, an accurate account of events because it incorporates the contemporaneous choice of language, knowledge, experience, gestures and demeanour of a child witness rather than the account given by a child appearing as a witness, a long time later in the difficult sitting of a criminal trial, when the account may suffer not only from failures of recollection, the stressors inherent in a formal trial, but also from the effects of gained knowledge, experience and maturity.
The Act affords several safeguards to protect against injustice to an accused person. Section 93A(1)(b) requires the maker of the statement tendered under that provision to be available to give evidence in the proceeding thus affording a defendant an opportunity to cross-examine the witness. Sections 98 and 130 confer a power on the court to exclude evidence if its admission would be unfair or if its admission would be contrary to the interests of justice, both of these being tests of wide scope. Section 102 specifies matters that should be taken into account when assessing the weight to be given to evidence admitted under the relevant provisions.
In this case the complainant’s evidence in chief was given, as I have said, about 16 months after the relevant events. At the time of the relevant events Cara was five and a half years old at the “prep” stage of her schooling. By the time of her trial she was almost seven and she was in grade two. In the scope of her life, this was a long time. Yet she was able to assert, by her responses to the prosecutor’s questions, that the account she had given to police was true, that she did not think that she had made any mistakes in her account to police and that there was nothing that she wished to change or to correct.
Cara’s evidence in chief and in cross-examination was in keeping with the way young children often give evidence. There were some failures in recollection and some assertions of not knowing things that, in an adult, would represent an astonishing ignorance. The substance of the cross-examination is set out above. However, it is useful to take an example of a single exchange in cross-examination to demonstrate the lack of substance in this ground of appeal. In answer to defence counsel’s question whether she had seen the appellant’s hands, Cara said that she did not know. Then, upon the false assumption that this answer was equivalent to her saying that she had not seen his hands or that a person has to see to know that she has been touched, she was asked, “If you didn’t see his hands, are you sure that Uncle [Allen] touched your vagina”? so that, driven to this apparent conundrum, the almost seven year old witness answered, “I don’t know if it happened or not.”
It is understandable that, having obtained answers that could support a submission that the witness had accepted a doubt about whether the events had happened at all, counsel prudently withdrew from the field of conflict. As Farr SC DCJ accurately observed, defence counsel did not attempt to cross-examine Cara by reference to the facts of the offending that she had detailed in her s 93A statement. She was simply not challenged by reference to the details of her account that was in evidence. One can understand that approach. But omitting to question the child in a way that directly challenges her evidence in chief does not amount to an inability to cross-examine or render the use of the evidence in chief unfair to the appellant. It is impossible to conclude by inference that the limited scope of cross-examination was due to any obstacle created by Cara; the reasonable inference is, as Farr SC DCJ rightly thought, that the limits were self-imposed for tactical reasons. There was no miscarriage of justice in this.
The evidence was rightly admitted and this ground should be rejected.
Grounds 3, 5 and 6 can be considered together. By ground 3 the appellant contends that Dearden DCJ did not give adequate reasons for rejecting the appellant’s evidence. By ground 5 he contends that the learned judge misdirected himself in finding that the complainant’s evidence was “capable of being accepted beyond a reasonable doubt”. By ground 6 he contends, as an alternative to ground 5, that Dearden DCJ failed to give adequate reasons for finding that the complainant was a reliable witness having regard to her answer that she didn’t “know if [the offending] happened or not”.
The appellant submitted that there were 9 “key deficiencies” in Cara’s evidence that required its rejection. The first three of these are as follows:
The fifth factor is that the period of time within which the offences were committed was very brief and the risk of detection was high. So much can be accepted, but the account given by the complainant required no more time than was available and the significance of the risk of detection, a common feature of many cases of indecent dealing with children, was a matter the weight of which was for the tribunal of fact to ascertain.
The sixth factor seeks to relate the complainant’s lack of evident distress to an improbability that the acts happened. There is no reason given why a five year old child should have been significantly distressed. It is clear why adults confronted by such acts would be distressed as well as disgusted and repelled. A child whose age means that she may lack the maturity to appreciate the real and full significance of what was done to her need not react in the same way. There is nothing in this point.
The seventh point is that the appellant did not exhibit any precursor behaviour of the kind that appears in many such cases. There was no indication of prior grooming of the complainant or of any sexual interest on his part. That is a matter that can validly be raised in the appellant’s favour as going to probability but it is insufficient as a basis to attack these verdicts on appeal. There is nothing in this point.
The eighth point relates to evidence that the complainant and her fellow pupils had been given the benefit of some basic sexual education concerning inappropriate sexual touching. It was submitted at the trial and is now submitted on appeal that this teaching, and the contents of the book that accompanied the lesson, might have been the source of a fabricated complaint. This suggestion was not put to the complainant and is pure speculation. There was no evidence upon which it could rationally have been thought that warnings given to children about the dangers presented by sex offenders would be prone to generate false complaints.
The appellant’s final point in this regard concerns the complainant’s failure of recollection during cross-examination. That is a matter that had to be taken into account but, for the reasons given, it was not a matter that required a rejection of the complainant’s evidence.
Section 615C of the Criminal Code (Qld) provides:
For his part, the prosecutor submitted that:(a)in its detail about how the appellant handled her, the complainant’s evidence demonstrated a verisimilitude arising from her description of actions that a five year old child would be unlikely to have been able to describe without having experienced them;(b)her demeanour during the police interview was that of a child who was relaxed because she was merely describing real events;(c)her inability to recall events 16 months later was the result of “understandable childhood amnesia”;(d)the appellant was able to give certain details about the surroundings during the relevant actions that were accurate;(e)her ability to maintain a sequential account of the offending acts demonstrates that she is recounting events that actually happened;(f)her account to her mother about being held upside down contained details that rendered it highly credible, such as the girl’s fear or nervousness at being held upside down;(g)her account to her mother about how her pants were removed similarly suggests a level of detail that is beyond a five year old’s capacity for invention;(h)the suggestions that earlier sex education might be the genesis of these complaints is incapable of explaining the various positions into which the complainant alleged the appellant placed her;(i)the asserted implausibility of the offending occurring under circumstances of risk of discovery is common is cases in which offenders have committed sexual acts against children and is not a reason to doubt the evidence; and(j)her accounts successively to her grandmother, her parents and police were substantially consistent.
The prosecutor submitted that his Honour should be satisfied of the appellant’s guilt beyond a reasonable doubt because the complainant should be believed.
Dearden DCJ correctly instructed himself that the case was one in which the prosecution case depended upon whether he accepted the complainant’s evidence. His Honour reminded himself that he had to scrutinise the complainant’s evidence with great care because of her age and also because of her lack of memory of events when she was cross-examined. His Honour directed himself that he should only act upon the evidence of the complainant if, after considering it with his earlier warning in mind, he was convinced of its truth and accuracy. His Honour then set out large parts of the relevant evidence from the complainant and catalogued the criticisms of that evidence made by defence counsel. Dearden DCJ then summarised the prosecutor’s submission that Cara’s evidence was indicative of a description by a five year old child of an actual lived experience, that her accounts were clear, compelling and were delivered in a way that “bespeaks truth, and reliability”.
His Honour correctly directed himself that defence counsel’s inability to cross-examine further did not mean that he was, for that reason alone, obliged to reject the s 93A evidence.
His Honour found that:(a)the inconsistencies in Cara’s evidence alleged by the defence were peripheral and that her account was otherwise consistent and clear;(b)her account during the police interview was “in sequence”;(c)Cara’s account about events concerning counts 1 and 2 on the chair were capable of having occurred;(d)her account of the doings on the bed were “a graphic and detailed description of what adults would” recognise as a form of sexual act;(e)the prosecutor’s description of that part of the evidence as “compelling” was right;(f)as submitted by the prosecutor, the various accounts given were consistent;(g)the preliminary complaint evidence tended to support the complainant’s credibility and reliability;(h)after taking into account the warning that he had given himself about the need for careful scrutiny of the evidence, the complainant was an honest and reliable witness;(i)the descriptions in Cara’s evidence were age appropriate; and(j)The descriptions were not the product of fantasy or confabulations from viewing pornography.
His Honour rejected the appellant’s evidence denying the offences and, on that basis, his Honour was satisfied of the appellant’s guilt beyond a reasonable doubt.
It can be seen that the learned judge dealt with all of the points raised by defence counsel except the complainant’s lack of evident distress after the events and the appellant’s apparent shock at being confronted with the allegation. In the context of the case those were minor matters for which there are obvious explanations. The matters of substance concerned the coherence and plausibility of the complainant’s account.
It is true, as the appellant submitted, that the learned trial judge did not further explain his Honour’s rejection of the appellant’s evidence as untruthful. However, in the circumstances of this particular case, the ultimate conclusion could not realistically depend upon a comparative assessment of the objective features of the complainant’s account against the objective features of the appellant’s account. The appellant accepted the substance of the complainant’s account of the events of the evening with the single substantial exception that, on his account, he did not commit the offences. The matters that supported his account were the matters that, in his counsel’s submission to the learned trial judge, rendered the complainant’s account implausible. The door was open. The appellant’ mother and nephew were nearby and might walk into the room and see what was going on. The time frame was very short. The risk was great. These were fair arguments and his Honour took them into account in assessing the complainant’s evidence.
Otherwise, there being nothing else to point to in the evidence of the appellant as an objective matter going to credibility, his Honour might have made some reference to the appellant’s demeanour in the witness box. That would have been an artificial exercise if, as appears to be the case, there was nothing in the appellant’s manner of giving evidence that was worthy of remark. That there was nothing notable of that kind did not mean that the learned judge could not reject it in the face of conflicting evidence that was, to his Honour, convincing.
In Goodrich Aerospace Pty Ltd v Arsic,6 Ipp JA approvingly cited a judge’s dictum from an English case which was as follows:
This analysis is also sufficient to dispose of ground 1, which contends that the learned judge’s verdicts of guilty were unreasonable or that they cannot be supported by the evidence. His Honour set out at length the relevant parts of the complainant’s evidence. He accepted Cara as a witness of truth, which it was open for him to do, and rejected the appellant’s denials. The content of her evidence, taken together with the consistency of her retelling in her successive complaints beginning with her immediate complaint to her grandmother and ending with her more detailed account in response to police questioning, amply supports the findings of guilt. The appellant has not shown that, in light of the whole of the evidence, it was unreasonable to believe the complainant.9
For these reasons I would dismiss the appeal.
MORRISON JA: I have read the reasons of Sofronoff P and agree with those reasons and the order his Honour proposes.
JACKSON J: I agree with Sofronoff P.