R v G; ex parte A-G [2001] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION: R v G; ex parte AG [2001] QCA 158

PARTIES: R / v / G / (respondent / cross appellant) / EX PARTE ATTORNEY GENERAL (QUEENSLAND) / (appellant / cross respondent)

FILE NO/S: CA No 331 of 2000 / CA No 332 of 2000 / DC No 387 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence appeal by Attorney-General; Appeal against conviction

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 27 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 6 April 2001

JUDGES: Thomas JA, Chesterman and Holmes JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal against convictions allowed. Verdict of guilty set aside and replaced with acquittal on all 3 counts. / Attorney-General’s appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – INDECENT DEALING WITH A CHILD UNER 16 YEARS – where complainant lying adjacent to her sleeping mother when offences allegedly occurred / CRIMINAL LAW – EVIDENCE – COMPETENCE AND COMPELLABILITY – CHILDREN – GENERALLY- where child’s evidence inconsistent and improbable – where no corroboration – where no contemporaneous complaint – where child apparently normal the next day – where accused’s evidence in contradiction of the child’s evidence remains consistent under cross examination / CRIMINAL LAW –APPEAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE– where aspects of complainant’s evidence so improbable and inconsistent jury could not be convinced of accused’s guilt beyond reasonable doubt – where jury’s verdict unsafe and unsatisfactory – where conviction quashed / CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL – where inappropriate to decide appeal against sentence / Jones v The Queen [1997] 191 CLR 439 cited / M v The Queen (1994) 181 CLR 487 considered

COUNSEL: P Rutledge for the appellant / cross respondent / AJ Rafter for the respondent / cross appellant

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Gilshenan & Luton for the respondent

THOMAS JA: The appellant was convicted of three counts involving sexual treatment of his eight year old niece during a night in October 1999.

The circumstances are set out in the reasons of Holmes J which I have had the advantage of reading, and with which I generally agree. As I have found the present case particularly difficult to decide, I shall briefly state my own additional reasons.

The acts in question are said to have occurred during a visit to the appellant's home by the complainant girl and her family (including mother, father and grandparents). The relationships between the members of the family appear to have been good and no untoward conduct on the part of the appellant is alleged to have occurred at any other time.

There was a complete absence of corroborating evidence notwithstanding that the complainant's mother was sleeping adjacent to where the offences are said to have been committed. It is, of course, not impossible that an offender might choose to do something like this adjacent to the girl's mother in a room that was sufficiently well lit for the activity to be seen by anyone who looked, but this is a factor that gives rise to an initial feeling of concern. No complaint was made for some two or three months afterwards, and the circumstances leading to the emergence of the complaint were not given in evidence. The complainant's evidence contains inconsistencies which have been detailed by Holmes J. The appellant gave evidence in his defence. He was not discredited in any way, and his evidence was not weakened by inconsistencies such as those which at least raise concerns in relation to the complainant's evidence. The apparent normality of the dealings between all relevant parties on the following day adds to one's perception that there is something odd about the story overall. The Crown case was also meagre in relation to surrounding detail.

On the other hand, the complainant's evidence-in-chief (given by means of a video tape of an interview with a policeman 10 months before trial) looks spontaneous enough and contains sufficient detail to give the impression that it would have been difficult for her to have fabricated all of it. Further, the inconsistencies that emerge from cross-examination, first at committal and then at trial, were not of major proportions, and consisted mainly of inconsistent estimates of time, of the sequence in which certain alleged events occurred, and whether or not she had been asleep at certain stages. She gave a rational explanation for behaving the following morning as if nothing untoward had happened.

It might therefore be said that the inconsistencies are not greater than might naturally be expected from so young a complainant. But therein lies the danger of a prosecution which, in the end, is based solely upon such evidence. When that version is contradicted by other evidence of equal or greater objective probability, such inconsistencies can undermine a tenuous case. The complainant was, of course, only eight years old at the relevant time, and nine years old when she gave evidence. There is a natural tendency to make allowances in favour of children, but in assessing the probative value of evidence as a basis for convicting an accused person one must be careful not to lean over too far in favour of a child complainant, thereby unbalancing a fair assessment of the evidence.

Only five witnesses were called, including the appellant. The jury returned a verdict of guilty at 12.28 pm after an overnight retirement. A jury is, of course, entitled to prefer the evidence of one witness over another, and to convict an accused person on the evidence of one witness even when it is totally uncorroborated. However, there may come a time when a close review of the whole of the evidence by a court of appeal shows such a conviction to be unsafe notwithstanding that some of the evidence would support a conviction.

On analysis I do not think that the Crown case can reasonably persuade one beyond the point that the appellant may or may not have committed the offences. Plainly, that falls well short of the persuasion beyond reasonable doubt that is necessary before a citizen is convicted of a criminal offence. I do not overlook the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence.¹ However, I do not think that the jury's advantage of assessment of the witnesses is sufficient to overcome the reservations that inevitably arise upon reading the evidence as a whole. Whilst no one factor is conclusive, the combination of them in my view takes this case into the unsafe zone. The case displays inadequacies to the extent that it must be concluded that, even making allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. In such circumstances it is the duty of this court to allow the appeal, set aside the verdicts and replace them with acquittals on all three counts.

The Attorney-General's appeal against sentence is now inappropriate as the judgment (including the sentence) has been set aside. The Attorney-General's appeal should therefore be dismissed.

CHESTERMAN J: I have read the reasons for judgment prepared in draft by Thomas JA and by Holmes J. I agree with what their Honours have written and concur in the result that the appellant’s convictions are unsafe and unsatisfactory.

The test is whether it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty. A doubt entertained by an appellate court should also have been entertained by the jury. Unless the demeanour of the witnesses, or the manner in which they gave evidence can explain why the jury accepted the prosecution case and rejected evidence tending to exculpate the appellant this court, if it entertains a relevant doubt, should intervene. See M v The Queen (1994) 181 CLR 487.

The trial was essentially a contest between the word of the complainant, who was eight years old at the time of the alleged offences and nine when she gave evidence, and that of the appellant, a forty-three year old married man in a stable family relationship, with no prior criminal history and regularly employed in a responsible position. The complainant’s evidence was attended by some alterations and inconsistencies which are set out in Holmes J’s reasons. The appellant denied the charges. He was only briefly, indeed almost perfunctorily, cross-examined. Recognising, as one must, that the jury is charged with the primary responsibility of evaluating testimony there still does not appear in the written record any indication why it should have rejected the appellant’s evidence so as to be convinced beyond reasonable doubt of his guilt, or that the advantages the jury had of hearing and seeing the witnesses can explain the verdicts.

There were elements of implausibility in the complainant’s evidence which, in my opinion, give rise to a doubt about its accuracy. There are four aspects of particular concern. The first relates to count 3, the most serious of the charges. The complainant’s evidence when interviewed was that the appellant inserted his finger into her vagina and rubbed it with a circular motion. When giving evidence at trial she said she did not know whether the appellant had touched her on the outside or the inside of her vagina. This discrepancy, or departure from her earlier evidence, on such an important point is noteworthy. It suggests unreliability on an important point.

The second aspect is that the complainant said, in relation to count 2, that the appellant told her to hold his penis “until it got smaller”. She resisted but he placed her hand on his penis which was at all times flaccid. He held her hand in that position for some time, which may, she thought, have been as long as two hours. The only conceivable motive for the offences was sexual gratification. It is unlikely that a mature man would have expected that the stimulation which he sought from the complainant would make his penis smaller, especially when at the time he first sought stimulation it was, in the complainant’s words, “like a jelly fish”. On a critical point the complainant’s evidence is, to my mind, difficult to accept.

The next aspect is that the offences were said to have occurred at a time when the complainant was lying on a mattress near her mother who was sleeping on a couch in the living-room of her maternal grandparents’ house. The appellant was lying on the mattress next to the mother. He interposed himself between the complainant and her mother. The couch and mattress were adjacent to the kitchen which was well lit. The grandparents did not go to bed until a time after the offences had occurred. Although there is no evidence as to exactly where the grandparents were at the relevant time it appears they were moving around the house. They saw nothing. It is puzzling that the appellant would have committed the acts when the possibility of detection was so high. More significantly the complainant described the appellant’s conduct in holding her hand on his penis and his rubbing her vagina as lasting for a considerable time, perhaps as long as two hours. In that period had the complainant’s mother awoken she would have immediately seen the indecent acts. In fact the complainant said that her mother “kept waking up”, but every time she did the appellant stopped touching her and released her hand. The mother, if awake would not therefore have seen any touching but would have seen the appellant’s genitals exposed because he had pulled his pants down and would have seen the complainant’s dress pulled up to her waist.

In re-examination the complainant said that when her mother “kept waking up” she did not open her eyes but only turned from one side to the other. While this explanation might overcome a difficulty in her evidence, it is scarcely consistent with the statement that her mother “woke up”. At the very least there is a degree of unlikelihood that the appellant would persist with his behaviour when the child’s mother was only inches away and was stirring in her sleep.

The last matter concerns the appellant’s behaviour at the conclusion of the offending conduct. According to the complainant it stopped when she went to the toilet. When she returned the appellant got up, got himself a drink of water and went to bed. Before doing so however, he brought a glass of water to the complainant’s mother who was then awake. The mother saw nothing untoward. The complainant said nothing about the events to her mother.

It is at least doubtful that the appellant, having just ceased a prolonged molestation of the complainant, would have ensured that the child’s mother was awake by giving her a drink and speaking to her when the complainant was present and might be thought likely to mention what had happened.

To my mind these features make the veracity of the complainant’s account doubtful. The circumstances giving rise to the doubt are not such as could have been dispelled by observing the child give evidence. The convictions, in my opinion, are unsafe and should be set aside. The Attorney-General’s appeal against sentence should be dismissed.

HOLMES J: G was convicted, after a trial, of one count of attempting unlawfully to procure a child under the age of sixteen years to commit an indecent act, with a circumstance of aggravation (that the child was under the age of twelve years); one count of unlawfully permitting himself to be indecently dealt with by a child under the age of sixteen years (with the same circumstance of aggravation); and one count of indecently dealing with a child under the age of sixteen years (again with the circumstance of aggravation). He was sentenced to eighteen months imprisonment, immediately suspended for an operational period of three years. The Attorney-General appeals against the sentence as manifestly inadequate; G appeals against the convictions on the ground that the jury’s verdicts were unsafe and unsatisfactory. (For simplicity I shall refer to G as the appellant, since his appeal against conviction is, logically, the first of the appeals to be considered.)

The complainant, a girl of eight at the time the offences were alleged to have been committed in October 1999, was the niece of the appellant’s wife. On the night in question she was staying with her mother and maternal grandparents at the appellant’s house. The appellant had, on that day, been to the local races with his father-in-law (the complainant’s grandfather), returning home at about 6.30 p.m. Those staying in the house - the appellant, his wife, her sister (the complainant’s mother), her parents, and the complainant child - had eaten dinner together, and at various times had retired for the night. The complainant’s mother went to sleep on a sofa in the lounge room, while the complainant was given a mattress on the floor next to her. At about 1.00 a.m. in the morning the appellant’s wife and his mother-in-law went to bed, followed by his father-in-law approximately half an hour later.

According to the complainant’s recorded interview, given approximately two months after the night in question, she “went down to get a tissue and then … came back up”. (It appears that the house was built on more than one level.) The appellant said goodnight to his father-in-law, and then told the complainant that he would go to sleep with her on the mattress. She said that he told her to “suck his doodle” and she refused; “and then he made me touch his doodle until it got smaller and then he - and then he put his finger in my - umm my - my rude part and umm, umm, then umm, then, in the morning when I woke up, umm, he - he went down to bed then”.

Providing some more detail of the events in the course of the interview, the complainant child said that her mother was right next to her, and the appellant desisted whenever she woke; but when the mother went back to sleep he would continue to make her “touch his doodle”. She said that that happened on three occasions that night. He had pulled down his pants and made her touch his penis “until it got smaller”. It felt, she said, like “a jelly fish”.

As to the touching of her genitals, the complainant said that the appellant had used a finger to rub inside her vagina in a circular fashion. He was, she said, “really drunk”; although when pressed further on this point she could not say how she knew that, “but he had a lot of beers”. In the morning when she awoke, the appellant left and went to bed and she went back to sleep. She was afraid to tell anyone what had occurred because she thought she would get into trouble and because she perceived that the appellant did not want her to tell anyone. She did not in fact make a complaint until approximately two months later. There was no evidence before the court as to the context in which the complaint was eventually made.

Cross-examination by the appellant’s counsel elicited some variations in the complainant’s account. At the committal hearing, and initially under cross-examination at trial she said that she had not been asleep before deciding to get a tissue. However, she altered her account under cross-examination to say that she had been asleep, and had woken up to get the tissue. When the variations were put to her, she said that the correct version was that she had not been asleep. She thought she had been on the mattress for about fifteen minutes before getting up to obtain the tissue, and that was when her grandfather went to bed. (According to the evidence of her grandmother, the grandfather had gone to bed about 1.30 a.m. and the child had been asleep for some time before she retired at about 1.00 a.m.).

The complainant said that although she was going to get the tissue (the tissues being kept downstairs), she had only got as far as crawling away from the mattress when the appellant had said “come and lie down”. This, of course, was somewhat different from her earlier account of retrieving the tissue from downstairs and returning. She agreed that the appellant had said he would lie down with her to help her to go to sleep. She confirmed that the appellant’s penis had felt soft through the whole time she held it; and said that the appellant had told her to hold it until it got smaller.

According to the complainant, she was able to see the appellant in the light coming from the adjacent kitchen. She agreed that if anybody else entered the lounge room they would have been able to see what was occurring between the appellant and her on the mattress; there was no sheet covering them. Equally, her mother could have seen what was happening had she looked down from the couch. The appellant was lying between her mother and her. In re-examination the complainant said that her mother merely turned over when she awoke, without opening her eyes.

At one stage the complainant said that the touching, that is by way of her hand on the appellant’s penis and his touching her around the vaginal area, went on for about two hours. That contrasted with what she had said at the committal hearing, which was that she had had her hand on the appellant’s penis for “probably about ten minutes”. The appellant had kept her hand on his penis by holding it there with his left hand, but he had not moved either his hand or hers. She was unable to say whether the appellant had touched her on the outside or the inside of the vagina.

The incident came to an end, the complainant child said, when she got up to go to the toilet. The appellant had made no attempt to stop her doing so. When she came back from the toilet the appellant got up from the mattress and brought a glass of water over to her mother, who was then awake and drank it, before going off to bed himself. On this account only the complainant had been to the toilet. However, she agreed that at the committal hearing she had said the sequence of events involved her going to the toilet and returning to the mattress, with the appellant getting up then, going to the toilet, returning and saying ‘goodnight’, getting a drink and then going to bed. She said that the second sequence was correct.

The evidence was that the following day the appellant, his wife, her parents, the complainant and her mother all went to a local tavern where there was a general jovial mood amongst the party, and nothing appeared out of the ordinary. The relationship between the appellant and the complainant to that time had been a good one, with the appellant saying that she liked her uncle. After the night in question she had, according to her interview, stayed on two occasions at the appellant’s house, and nothing untoward had happened. There was no evidence to corroborate the complainant’s account in the form of recent complaint or any observation of anything abnormal by any of the adult witnesses in the house.

The appellant gave evidence. He confirmed that his parents-in-law had gone to bed at around 1 o’clock. He said he could not recall why he got on to the mattress, although he thought it might have been the case that he had said he would help the child go to sleep. He woke at about 2.30 a.m. and got up from the mattress, when he got himself a drink of water. His sister-in-law asked for one also, and he brought it over to her. He denied touching the complainant or causing her to touch him or making any improper suggestion to her. He did not recall any accidental touching, or the child being awake at all. The first he knew of the allegations, he said, was in mid-December 1999. His account did not alter under cross-examination, which, it must be said, was not vigorous.

No complaint was made of the summing-up. Counsel for the appellant, Mr Rafter, argued that the verdicts were unsafe and unsatisfactory having regard to the inconsistencies in the complainant’s evidence, as to whether she had been asleep before the alleged incident, the timing and duration of events and whether the appellant had got up to go to the toilet; the youth of the complainant (she was eight years old at the time of the offences and nine and a half years old when giving evidence at trial); the absence of fresh complaint or any form of corroboration; the apparent normality of the complainant the following day; and the existence of the appellant’s sworn testimony in contradiction of her evidence. He pointed also to what he said was the inherent implausibility of the complainant’s account, and, in particular, the improbability of the appellant interfering with her in a position close to, and where she would be visible to, her mother.

The Crown submitted that the inconsistencies were relatively minor. The complainant’s youth was of itself no bar to a jury’s accepting her account, and there had been no motivation suggested for her to invent it. Her absence of complaint could be explained by her apprehension that she might “get into trouble”, and there was no suggestion that the adult members of the family in whose company she was the following day were focussing their attention on her behaviour. The absence of corroboration was not unusual. The jury had the opportunity to see both the appellant and complainant give evidence and plainly were satisfied beyond reasonable doubt that the complainant’s account was true.

None of the matters pointed to by the appellant would, taken individually, warrant a setting aside of the verdict. Taken as a whole however, they must give cause for concern. The incident as described had aspects of improbability. As Mr Rafter said, there is a real question as to the likelihood of anyone carrying out a sexual assault of the child with her mother lying along side, and at least stirring from time to time. There is also something of the bizarre in the allegation that the appellant told the child to hold his penis “until it got smaller”, when there is no suggestion that it was ever engorged or erect. Indeed the child described it as like “a jelly fish”; and she said that the appellant did not attempt to move her hand on his penis at all.

Some of these features might be explicable by excessive consumption of alcohol; the apparent brazenness of the activity by its disinhibiting effect, and the apparent absence of any physical stimulation by its sedative effect. The complainant’s mother alluded to jokes about the appellant’s hangover the next day, and the complainant’s record of interview pointed to his having imbibed a good deal. Unfortunately, however, it was not suggested to the appellant that consumption of alcohol had anything to do with the alleged behaviour, and it follows that the jury could not reasonably have been asked to draw any inference to that effect.

When the more improbable aspects of the complainant’s version are taken into account, together with inconsistencies, particularly as to the time involved (the range between ten minutes and two hours) it seems to me that those matters in combination should have given by the jury pause. There is the further factor of the accused having given evidence in the course of which he did not deviate from his assertion of innocence. Allowance, of course, is to be made for the jury’s superior opportunity in observing the witnesses; but in this case the cross-examination of the accused was so limited that it cannot be said that that opportunity was extensive.

Taking all these features as a whole, I conclude that there exists a significant possibility that an innocent person has been convicted in this case; or, to put it another way, I do not think it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences. Accordingly I would allow the appeal, set aside the convictions, and enter a verdict of not guilty on each count.

It follows that the Attorney-General’s appeal against sentence does not require consideration, and should be dismissed.

Footnotes

1. M v The Queen (1994) 181 CLR 487, 493; Jones v The Queen [1997] 191 CLR 439, 451-452. ↩