R v Byron [2000] QCA 177

Director of Public Prosecutions (Queensland) for the respondent

**[1] THE COURT: The appellant appeals against his conviction for rape and indecent treatment of a child under 12 years. The issues raised by the amended grounds of appeal are first that the jury was misdirected about the need to carefully scrutinise the complainant's evidence, secondly that the verdict was unsafe and unsatisfactory and thirdly that the jury were misdirected concerning evidence of fresh complaint. The issues raised by the grounds are however interconnected.

[2] During the course of argument the appellant's counsel was permitted to argue in effect a further ground of appeal, that is, that the trial judge had failed to direct the jury as to the availability of alternative verdicts of attempted rape or indecent dealing on the rape count.

[3] The complainant was a girl born on 15 June 1988 and so was ten years of age on 12 November 1998, when the offences were allegedly committed. There was evidence that in fact she functioned more as a seven year old than a ten year old from a perspective of pure intelligence although her "social functioning in the environment in which she lived" may have been somewhat better and that she was capable of giving reliable evidence.

[4] The complainant lived with her mother, a man called A and her mother's seven children, at a house in Redcliffe. The evidence indicates that A was not a man of high intellectual capacity. The appellant is a disability pensioner with literacy and other difficulties. The appellant and A had been drinking for part of the day and into the evening of 12 November 1998 when they arrived at the house where the complainant was living. The complainant's mother went out at about 7:30 pm leaving the appellant and A together with the complainant and a number of the younger children who had apparently been put to bed. One of them was the complainant who was on a bunk on what was described as the verandah. One of the younger children was fractious and A went to settle him down.

[5] While A was doing this he heard the children on the verandah "mucking around" and the appellant tell them to settle down saying, "I'll tell Dad" - this was a reference to A. A, at some stage, heard a noise like when "kids jump on the bed". He got up and saw the appellant kissing the complainant and moving his hands up and down over the bedclothes in her vaginal area. He intervened and called the appellant and the complainant out. The complainant told him, after some questioning, that the appellant had touched her and kissed her. She then returned to bed. The appellant initially denied that anything untoward had happened but as A persisted questioning him, he said he was sorry.

[6] The complainant recounted a course of events which involved being woken by the appellant kissing her, seeking to push him away, he then sexually interfered with her in a way which she described. She spoke of the appellant's and her clothing being removed, his hopping on top of her, touching her, including around and inside her private. She spoke of seeing his "dick" which she described and told of feeling "it inside her".

[7] The appellant gave evidence that the children went to bed and he and A sat around talking, drinking, watching television, listening to music and smoking marijuana. At one stage A woke the complainant to go for a walk. After they returned the appellant assisted A with some housework and eventually went to sleep on the couch. He denied touching the complainant improperly in any way.

[8] The events so far outlined took place on 12 November 1998. On 13 November the complainant visited an uncle where she said she was "sore between the legs". On 14 November A went to the police who then became involved. They took the complainant to hospital where she was examined. The doctor observed redness and swelling suggestive of "significant genital trauma". Examination showed an absence of hymeneal tissue consistent with penetrative injury but there was no medical basis for determining whether that penetration had been digital or penile. After the examination on 14 November the police took a statement from the complainant which was video recorded and received in evidence.

[9] The trial was conducted on the basis that the complainant had been sexually interfered with but not by the appellant. The jury were given careful directions about the elements of each offence. No complaint is made about them. It was made clear to the jury that they could return a verdict of guilty on either count only if they were satisfied beyond reasonable doubt of each element of the offences.

[10] It will be appreciated from what has been said so far that acceptance of the complainant's evidence was crucial to the case against the appellant. The trial judge directed the jury to that effect. He went on to direct that they approach the complainant's evidence with care and to scrutinise it carefully for reasons which he explained. Counsel for the appellant submitted that the summing up was deficient in that the judge had failed to relate this aspect of it to "some circumstances in the case" citing Robinson v R [1999] HCA 42; (1999) 165 ALR 226 at 232.

[11] No complaint was made about this aspect of the summing up at the trial and counsel for the appellant was unable to identify any particular circumstances of the case comparable with those considered in Robinson which ought to have been dealt with in the summing up but were not.

[12] It was submitted that it was impossible to reconcile the verdict (particularly that of rape) with the evidence, that the evidence did not properly found a conclusion that penetration occurred and that there were inconsistencies and inherent difficulties in the complainant's evidence justifying setting the verdict aside.

[13] The appellant's criticism of the verdict requires treating the evidence as having much greater precision as to time, sequence of events and the like than is the case. The evaluation of the evidence was of course a matter for the jury. It was open to the jury to conclude that the activity between the complainant and the appellant extended over an indeterminate but considerable time before the activity attracted A's attention and he intervened. Once this is appreciated, much of the argument founded on inconsistency, inherent difficulty and insufficiency of evidence loses its force.

[14] An example as to how far counsel for the appellant was driven to go in support of submissions about the unsatisfactory state of the evidence is provided by the submission that the act of rape could not have occurred prior to what was observed by A, because:**

"the more conventional expectation would be for the act of digital penetration to precede an act of rape rather than the other way around".

It is the fact that the complainant told the police that the appellant had "blonde hair" and that he was black but that excited no great interest at the trial at which the jury could of course listen to the taped interview with the complainant, hear and see her evidence at trial and see the accused during the course of the trial and whilst giving his evidence. The complainant said that in an earlier incident of horseplay the appellant held her under water for an hour followed by a statement that she did not know how long an hour was. Given her age and the considerations already canvassed that exchange is hardly compelling of a conclusion that the verdict is unsafe and unsatisfactory.

**[15] So far as deficiencies in the complainant's evidence of penetration is concerned, the complainant gave evidence which, if accepted, founded a conclusion of penetration, and a verdict of rape. This aspect of the argument for the appellant really turns on it being demonstrated that the verdict was unsafe and unsatisfactory or that it was tainted by some other error.

[16] The treatment of fresh complaint arises for consideration. It is the fact that in her initial complaint to A, the complainant mentioned nothing more than touching and kissing and that she made no mention of penetration until the medical examination. This evidence fell for consideration by the jury in the context that she said that the appellant had told her not to dob him in. There was also evidence that A had told her not to tell what had occurred particularly to her mother for fear that she might be put into a "kids' home" and that the prospect of this occurring was a matter of particular concern to the complainant.

[17] When the evidence had almost concluded the trial judge raised with counsel issues he intended dealing with in summing up. He indicated that he intended directing them there was evidence of fresh complaint from A and the doctor. It will be recalled that the complainant had made what could be regarded as a complaint of indecent treatment to A. Counsel for the defendant at the trial raised an issue about the complaint to A which was not pursued on appeal but said nothing about evidence of complaint to the doctor.

[18] The trial judge directed the jury as to the use they could make of evidence of fresh complaint in terms that are unexceptional. He then told them that whether or not the complaint to the doctor was made as soon as reasonably practicable after the event was a matter of fact for them and that unless they were satisfied of that they should set the evidence aside and ignore it.

[19] As we have said, whether the evidence to the doctor was capable of constituting fresh complaint was not an issue at the trial. Having regard to the conduct of the trial, the complainant's age, the urgings by the appellant and A to remain silent about the events and her concern about being sent to a children's home, the evidence was admissible[1]. It was open to the jury to conclude that any failure to complain earlier about penetration and rape was explicable so that the complaint to the doctor was a fresh complaint.

[20] The issue of alternative verdicts was not canvassed at trial and arose fairly late during the course of argument of the appeal. The verdicts of guilty of rape and indecent treatment were open on the evidence. The jury were given careful directions about the elements of each offence, in respect of which no complaint is made; it was made clear to the jury that they could only return a verdict of guilty on either count if they were satisfied beyond reasonable doubt of each element of that count. The case was conducted at trial on the basis that the complainant was sexually interfered with but that the jury could not be satisfied beyond reasonable doubt that it was the accused who was responsible. For the reasons canvassed no basis has been demonstrated for interfering with the verdicts. Even if the alternative verdicts ought to have gone to the jury, the appellant has suffered no disadvantage by that not having occurred.

[21] None of the canvassed considerations, either separately or collectively, demonstrate the verdicts should be set aside. The appeal should be dismissed.**

[1] see Suresh v R [1998] HCA 23; (1998) 72 ALJR 769