R v HBH [2013] QCA 35

McMillan Kelly and Thomas Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P: I agree with Holmes JA's reasons for dismissing this appeal against conviction.

[2] HOLMES JA: The appellant stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16 and one count of indecent assault. The counts involved a single complainant, B, who was the cousin of the appellant's wife. The appellant was acquitted of counts 2 and 4 which were two of the counts of indecent treatment of a child under 12 years, and of an alternative to count 4, attempted indecent treatment. He appeals against conviction on the grounds that the verdicts of guilt are inconsistent with the acquittals on counts 2 and 4 (in effect, that the verdicts of guilt were unreasonable), and that the trial judge failed to give an adequate warning to the jury about the effects of delay in the making of a complaint.

[3] B was born on 19 November 1992, the youngest of four children in a Muslim family. She lived in Townsville, but occasionally had contact with the appellant and his family in Brisbane; his wife was her cousin. As charged on the indictment, the offences occurred over a period between 30 September 2001 and 26 December 2008.

[4] Counts 1 and 2 were based on B's evidence about events during a visit to the appellant's family in November 2001, during the Muslim festival of Eid. She said that the appellant took her and his daughter, S, (who was six or seven years younger than B) for a drive to Mount Coot-tha at night. On the mountain he parked and got out with B, leaving the smaller child in the car. B said that he picked her up and put her on a tree stump to look at the city lights. While she was standing there facing towards the city, the appellant lifted her dress and began to rub his genitals against her bottom.

[5] On another occasion during the same trip, B said, the appellant again took the two children out in his car. He allowed B to steer the car, seated on his lap. While she was in that position, he began to push his groin into her bottom, lifting her up at the hips "a little bit" for that purpose. She could feel his genitals becoming hard. In cross-examination, B accepted that in her description of the incident to police she had made no reference to being lifted by the appellant.

[6] Counts 3, 4 and 5 were alleged to have occurred during another trip to Brisbane in June 2002. B went with the appellant and another of his wife's nieces, F, who was aged about one, into the garage of the appellant's residence at Mount Ommaney. B said that the appellant picked her up and put her onto a sofa bed, lifted her legs so that her feet were facing the ceiling and rubbed his genital area against hers. Both were fully clothed during the incident, which was the subject of count 3.

[7] On a second occasion during that holiday, B was in the garage with F, another cousin, A (yet another niece of the appellant's wife), who was about eight years old, and the appellant, playing a "cops and robbers" game. The appellant instructed A to play the police officer role, and to shut B and himself in a storage area. The storage area was dark. B said that the appellant tried to kiss her (count 4); she described feeling his moustache brushing against her cheek and part of his moustache and his mouth brushing against her lips. She began to scream and A opened the door. She was taken inside, where the appellant informed her female relatives that she was afraid of the dark.

[8] A gave evidence in the Crown case. She said that her date of birth was 28 September 1993. She recalled a visit to the appellant's house in 2002 and in particular a game played in the garage and rumpus room, which she remembered as involving good cops and bad cops in a hide-and-seek game. She did not give any evidence of any particular instance of the game.

[9] The trial judge left count 4 to the jury on the basis that if they were not satisfied there was actually any touching of the lips, they should consider whether there was an attempt at indecent dealing.

[10] The events which gave rise to count 5 occurred, according to B, when the appellant took her, his daughter, S, and their cousin A to his warehouse, which was large and contained numbers of clothes racks. The other two children were elsewhere in the warehouse when the appellant came up behind her, pulled her onto the floor in a crouching position on hands and knees, lifted her dress and began to rub his genital area against her bottom. At first he was fully clothed, but he removed his trousers; she was not sure if he removed his underpants as well. She asked him what he was doing and he told her to be quiet because they were playing, hiding from the other children who were calling them. When the two girls drew near them, the appellant jumped up, pulling up his trousers.

[11] A said in her evidence that she could remember being at the warehouse. Her recollection was that B had gone into the appellant's office and later emerged from it pale and shaky.

[12] In July 2002, the appellant and his family visited B's family at their house in Townsville. B had an upstairs bedroom. The appellant brought F, the one year old, into B's room and began to build a tent for the children, using a blanket and some furniture. B said that she was sitting facing the entrance of the tent when the appellant came in, tried to make her lie down and kissed her. She was moving her head to try and prevent him from doing so. She felt his moustache, but she did not think his lips contacted hers. In respect of this count also, the trial judge instructed the jury that they could consider attempt (count 6).

[13] In December 2004, when B was 12, she was holidaying at the Gold Coast with her family when they were visited by the appellant and his family. The appellant and his wife persuaded B to return with them to Mount Ommaney to stay with her young cousins. At that time, the appellant was not sharing a bedroom with his wife but slept, instead, with one or other of his daughters. B shared a bed with him and her cousin, S. She was sleeping against the wall with S in the middle and the appellant on the other side. The appellant positioned his arm over his daughter as if he were hugging her, and then began to squeeze B's nipple area. He tried to lift up her pyjama top. The incident, which was the subject of count 7, ended when his wife entered the room and invited B to sleep in her room.

[14] The appellant's wife gave evidence. She said that her husband often used to sleep with the other children while she was breast-feeding a baby, and B would sometimes sleep with her. She had, on occasions, seen the appellant in the same bed with B, as with other children, but did not regard it as out of the ordinary.

[15] The final incident, giving rise to count 8, occurred at the end of 2008 at B's home in Townsville. B by then was 16 years old. She was lying on her bed in the middle of the day with three of her younger cousins: the appellant's two daughters, and her other cousin, A. The four girls were dozing, lying on their left-hand sides facing the wall. The appellant came into the room, shut the door and positioned himself behind B on the bed. He moved his hand around her as if he were hugging her and then began to squeeze her breasts. She pushed him off. He tried to hold her hands down and to lift up her shirt at the same time.

[16] The appellant's wife entered the room and he stopped what he was doing, but continued to hug B. (The appellant's wife gave evidence that she could recall walking in on her husband and B lying on the same bed, but she did not recall that there was anyone else there.) As soon as his wife left the room, B jumped up to leave. The appellant told her to wait and asked her whether she was frightened of him. Although in truth she was, she answered "No." She went to the kitchen to tell her mother what had happened, but was deterred when the appellant followed her and stood watching her. The following day B told her older sister that the appellant had been touching her.

[17] B's sister gave evidence that B appeared distressed and told her that the appellant had been on top of her, not letting her go, and that this had been happening for a long time. B had said that in other instances he had lifted her skirt up and made her touch his penis; these events had happened at Mount Ommaney and Mount Coot-tha.

[18] A friend of B's, who was about a year older, said that in November 2009 B had told her that her uncle had touched her when she was eight years old and that he tried again a few years later, around 2008. B did not, however, raise the issue with a psychologist whom she saw in the same year. In mid-2011 she provided a written account to the appellant's wife who had separated from him and wanted her statement for the purpose of custody proceedings. She made a statement to the police about a month later.

[19] B was cross-examined about why she had not complained earlier of the appellant's assaults. She had explained in evidence-in-chief that there was no discussion of sex in her strict Muslim family. The only education she received on the subject was at school, when she was in Grade 7. Before then, she had not said anything because she was afraid that no-one would believe her and she did not know how to articulate what had been happening. Even after she had realised the sexual nature of what had happened, she did not raise it with her mother because they did not speak about things of the kind. When she was 11 she made an attempt to tell her sister, saying to her that she thought the appellant was a "bad person". The sister reacted angrily, saying that she should not talk about the appellant like that and she did not persist. She resolved that she would not contact the police until she was an adult, so that her parents did not need to be involved. After turning 18 in late 2010, she decided to wait until her first semester exams in 2011 were over before she embarked on speaking to the police.

[20] The appellant did not give or call evidence.

[21] The trial judge gave the jury a Markuleski[1] direction in these terms:

"If you have a reasonable doubt concerning the truthfulness or the reliability of the complainant's evidence in relation to one or more counts, whether it's because of her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or the reliability of her evidence generally."

[22] Defence counsel, referring to Longman[2] and Robinson,[3] asked that the jury also be given a warning of the danger of convicting on the basis that the appellant was disadvantaged by the delay between the events complained of and the police investigation. That delay, of almost a decade in respect of the earlier charges, was such as to cause the appellant difficulty in obtaining evidence to disprove B's claims.

[23] The trial judge gave the following direction:

"I've spoken at length about the circumstances in which [B] made the complaint to police but I would like to say something further about that. The first alleged incident is said to have occurred in late 2001. There were incidents alleged then in '02, '04 and '08. The formal complaint was made to police in, I think it was July, of 2011. That is the point at which the defendant learned the details of the allegations about the conduct in those years and 2001, 2 and 4 are quite some years earlier.

It's a matter of commonsense that memory of details can fade over time. The delay also reduced the defendant's prospects of assembling evidence about what he and potential witnesses were doing when [B] said those earlier incidents took place.

The Crown case rests on [B's] evidence. It must persuade you that her evidence about the conduct alleged against the defendant is truthful and reliable so you must scrutinise it with great care. I'm not suggesting any criticism of [B] in saying that to you. Rather, I'm reminding you of something which I'm confident you do understand and recognise anyway. That you must be satisfied beyond reasonable doubt that her evidence regarding her allegations about the defendant's conduct towards her is truthful and reliable."

[24] The appellant submitted that the acquittals on Counts 2 and 4 should have led to acquittals on the remaining counts. The different verdicts were "an affront to logic and commonsense".[4]

[25] The question in considering whether verdicts are inconsistent so as to make a finding of guilt unreasonable is whether there is logic to, and reason for, the different verdicts: MacKenzie v The Queen.[5] Giving the jury's function proper respect, the court will be reticent in concluding that there is inconsistency between the verdicts:

"if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted."[6]

[26] In the present case, I do not think that there is any difficulty in reconciling the verdicts on counts 2 and 4 with those on the remaining counts. It seems to me highly probable that the jury simply allowed for the possibility of mistake by B in respect of the assaults alleged on those counts and gave the appellant the benefit of the doubt accordingly. On count 2, they could reasonably have concluded that the sensation B experienced of the appellant pushing his genital area into her bottom while she was steering the car was simply a function of her sitting on his lap. That was particularly so given that she had not originally made any mention of his lifting her by the hips. The absence of the latter feature in her first account given to the police would not necessarily reflect on her credibility. But the jury might well prefer her original account and take a view more favourable to the appellant: that the contact between them was just the physical consequence, without sexual intent, of his permitting the child to sit on his lap.

[27] In the incident which was the subject of Count 4, B said that she and the appellant were in darkness and that she felt his moustache and lips "brushing" against her face and lips. The fact that what occurred involved a brief and purely physical sensation raised the possibilities that B mistook the nature of the contact she described, or, alternatively, that it was inadvertent. Again, for the jury to give the benefit of the doubt to the appellant on this count does not lead to any conclusion that they should therefore have entertained a doubt about B's truthfulness and reliability generally.

[28] The different verdicts are readily capable of being reconciled and are not unreasonable as inconsistent.

[29] The appellant submitted that the direction given to the jury about the effect of delay on the appellant's capacity to defend the case was inadequate; it amounted only to a comment and should, instead, have been a warning (using the words "I warn you") that it would be dangerous to convict because of that feature.

[30] Here the matters identified as requiring caution were of the kind dealt with in Longman: the passing of time since the events the subject of the complaint, and the attendant difficulties for the appellant in mounting his defence. They were not matters relating to B's reliability. Indeed, counsel for the appellant here stressed that s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld), which prohibits warning or comment about the reliability of the complainant's evidence purely on the basis of the length of time before complaint, had no application. This case thus differed factually from Robinson in which there was, in addition to delay, a combination of features relevant to the complainant's reliability which had to be drawn to the jury's attention.

[31] The strength of the warning required in any given case will depend on its facts. The learned judge appropriately drew the issue of delay and its consequences to the jury's attention, and went beyond mere comment in cautioning them that they must scrutinise B's evidence with great care, since the Crown case rested on it. Robinson sets out what is necessary when features of a case require a warning so as to avert a risk of miscarriage of justice, and it seems to me that the description is met here:

"a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt."[7]

[32] I do not consider that there was any deficiency in her Honour's direction, or that any miscarriage of justice has occurred in this regard.

[33] I would dismiss the appeal against conviction.

[34] DALTON J: I agree with the reasons of Holmes JA and the order proposed.

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

[2] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[3] Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162.

[4] MacKenzie v The Queen (1996) 190 CLR 348 at 368.

[5] MacKenzie v The Queen (1996) 190 CLR 348 at 366.

[6] MacKenzie v The Queen (1996) 190 CLR 348 at 367.

[7] Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 at 171.