R v NH [2006] QCA 310

Judgment (26 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] JERRARD JA: On 24 March 2006 Mr N was convicted after a trial of two counts of indecent treatment of a child H under the age of 16 (counts 1 and 2) and convicted on two counts of rape of H (counts 3 and 4). The verdicts of guilty of indecent dealing on counts 1 and 2 were each alternative verdicts to charges of rape, on which he was acquitted on each of counts 1 and 2. On 4 April 2006, Mr N was sentenced to three years imprisonment on each of the four offences. He has appealed against his convictions for rape on counts 3 and 4, while conceding in his written outline of argument that on the evidence he could have been convicted on those counts 3 and 4 of the offences of indecently dealing with the child H when she was under the age of 16, and he does not oppose this Court exercising its powers under s 668F(2) of the Criminal Code 1899 (Qld) to substitute verdicts for those two offences on counts 3 and 4, and passing sentences on those counts in substitution for the three year sentence. If the rape convictions on one or both counts are set aside, the Court will receive written submissions on the application for leave to appeal the sentences of three years, made orally by leave granted on the hearing of the conviction appeal.

[3]

[2] The rape charged was digital rape pursuant to s 349(2)(b) of the Criminal Code. The issue on the appeal is whether or not there was sufficient evidence that Mr N had penetrated H's vagina with his finger on the occasions that constituted the offences in counts 3 and 4.

[4]

[3] The grounds of appeal against the rape convictions are in essence that they cannot be supported having regard to the evidence, and alternatively that a miscarriage of justice has occurred in that those convictions for rape on those two counts are inconsistent with the acquittals on the charges of rape on counts 1 and 2. There is also a complaint that the learned trial judge erred in not identifying to the jury all of the classes of evidence described as uncharged acts, and in not giving appropriate directions on that topic.

[5]

[4] The evidence relevant to each count can be summarised briefly. Counts 1 and 2 were each charged as having occurred on a day unknown between 1 January 2004 and 19 April 2004, at Ipswich. Counts 3 and 4 were charged as occurring on 18 April 2004, as was count 5, a count of wilfully and unlawfully exposing H to an indecent act, on which count Mr N was also acquitted. Mr N and his wife were friends of H's parents and H called him "uncle". Her father was sent to prison in January 2004, before the occasion on which count 1 occurred. Mr N and his wife thereafter provided support to H's family and assisted them in practical ways with transport and the like.

[6]

[5] The evidence suggests that the offences came to light when H told a school friend of hers, T, on the Friday before Anzac Day 2004, that she had a secret, namely that somebody had touched her "in the rude part" or "on the rude bit".[1] That was the description T gave of the complaint H made to him, when T was interviewed by police on 28 June 2004. A teacher, Ms Lawson, who spoke that day to T, said in evidence that T recounted that H had "told me that there's someone touching her on her private parts."[2] Ms Lawson's evidence was that she got T to repeat "exactly the same story" in H's presence, and that H said she had said that to T, and, in answer to questions, that the person doing it was "[m]y uncle".[3] Ms Lawson's notes of that conversation, apparently recorded some time later, were that T had said H said that someone was touching her in her private part.[4]

[7]

[6] On 28 April 2004 H was interviewed by police in a video taped interview conducted pursuant to s 93A of the Evidence Act 1977 (Qld) and she described the four occasions which constituted counts 1 to 4. The first was described as happening when she was playing on a computer and established by other evidence as very likely being on 27 March 2004. She said both that "[h]e touched on my private bit"[5], and that "He came at the back of me and put his hand in my private bit."[6] Regarding that occasion, when cross-examined in a video taped cross-examination conducted on 23 August 2005, one year four months later, conducted pursuant to Division 4A of the Evidence Act, she said that "he touched me on my private bit".[7] The evidence in that interview and that much later cross-examination generally described a hand touching her on her vulva, rather than a finger being inserted in her vagina. The jury acquitted of the charge of digital rape on count 1, consistently with that evidence.

[8]

[7] But there was other evidence touching that count, and the three other counts of rape. Principally that came from another interview conducted pursuant to s 93A of the Evidence Act, on 8 October 2004, five months after her first interview. On that occasion she explained to the police officer that her mother had asked her, on an unidentified occasion, (but undoubtedly around 28 April 2004), if "he pushed his finger up my private part."[8] She told the interviewing officer that she had said "yes" to her mother's question, and when reminded by the officer of each of the four specific occasions earlier identified in April 2004, she answered to the effect that "[e]very time" Mr N had done that, i.e. "pushed his finger up". She said that it "felt like it was hurt".[9]

[9]

[8] That evidence was consistent with penetration occurring on each and every occasion charged as an act of rape, and was supported by some evidence-in-chief by H in the video taped evidence given on 23 August 2005. That included the following leading questions:

[10]

"When you are saying he put his finger inside of you, was that every time that he touched you badly? - - Yes.

In terms of where of inside of you is, is that the place where you go to the toilet and do a wee? - - Yes."[10]

[11]

[9] The effect of the answers to those questions was to reinforce the answers to the less leading questions asked on 8 October 2004, in which the police officer had said "[d]id he do that every time or only some of those times?" and had obtained the answer "Every time."[11] Those answers in October 2004 and August 2005 were arguably inconsistent with the original complaint made in April 2004.

[12]

[10] The same applies for count 2. It was charged as an occasion when there was an incident in the back of a vehicle driven by Mr N, when H and others were with Mr N and his wife at an oval in Goodna for athletics training. The date was established by other evidence as 16 April 2004. Her description in the first interview in April 2004 was that Mr N had pulled her pants down and that he "touched um my pants, my private bit", and that Mr N was "fidgeting around on the side of it."[12] She was asked "Did that hurt at all?" and replied "No".[13] In cross-examination on 23 August 2005 she said of that occasion simply that he had touched her "[o]n my private bit."[14]

[13]

[11] That answer in cross-examination and the original complaint of April 2004 were arguably inconsistent with the more specific complaint of actual penetration which she appeared to have made in October 2004, and in evidence-in-chief in August 2005. The jury acquitted on this count of rape.

[14]

[12] Count 3 was the first conviction for rape. It was an incident charged as occurring when she went to the toilet; her evidence was that every time she went to the toilet Mr N would touch her with his hand "in a bad way."[15] Count 5 charged the last such occasion, identified as being on 18 April 2004. Her description on 28 April 2004 of the incident 10 days earlier was that "[h]e um opens my pants up and then he touches me on my private bit."[16] Her cross-examination on 23 August 2005 elicited the answer that "Whenever I would go to the toilet and go to wash my hands he would be sitting down on the bath and then he will come up and touch me. He will pull my shorts down and touch me."

[15]

[13] That was the extent of the evidence; once again the answers in cross-examination on 23 August 2005 and on 28 April 2004 were arguably inconsistent with the description of penetration given in October 2004 and evidence-in-chief in August 2005. I cannot see any rational basis on which the jurors could distinguish the strength of the evidence on counts 1 and 2 from the strength of the evidence on count 3, and acquit of an offence involving penetration on the first two occasions and convict on the third. Accordingly, I am persuaded there is an apparent inconsistency between the three verdicts, and would set aside the conviction for rape on count 3, and substitute instead a conviction for indecently dealing. Applying the tests in MacKenzie v R (1997) 190 CLR 348, in the joint judgment at 366 to 368, there is some evidence to support the verdict on count 3, said to be inconsistent, namely the statements in the interview in October 2004 and in evidence-in-chief in August 2005; but that same evidence was available to support counts 1 and 2.

[16]

[14] A reasonable jury could not fail to be satisfied that penetration occurred on the occasions of counts 1 and 2, but be satisfied in respect of the occasion in count 3, particularly because of the medical evidence called from a Dr McGregor, who had been a consultant Paediatrician for 34 years. He examined H on 10 May 2004, and concluded that her hymen was wider than would be expected for a child of her age.[17] He also noticed a bump consistent with a scar on the left margin of the hymen, and some fine scarring on the posterior fourchette, the tissues lying immediately behind the hymen and between the hymen and the anus.[18] The hymen on H had a horizontal diameter of 12 millimetres, whereas most children of her age (8 years old) would have a hymen diameter of approximately five to six millimetres.[19] Regarding the bump, he considered that the trauma that caused that scar would not have occurred within the two or three weeks prior to his seeing H, it was a mature scar, and usually by three months all evidence of trauma may have gone. He clarified that he meant that by three months the scar would have resolved.[20] He also said the trauma that caused the scar to the posterior fourchette could have been separate or the same trauma as that which caused the bump on the hymen, and would have occurred somewhere in the same general time.[21] He said that the trauma causing the scars would have caused pain to H, and that she would have been very upset by the event. It was also trauma consistent with either one or a number of occasions of digital penetration.

[17]

[15] That evidence of relatively recent trauma, possibly occurring on 16 and 18 April 2004, and also on 27 March 2004, did add substance to the description of the penetration which she had given in her October 2004 interview and in her evidence-in-chief. But it did not distinguish the evidence on count 3 from that on counts 1 and 2.

[18]

[16] The position was stronger again for the prosecution on count 4, an event alleged to have occurred on the same date as the event in count 3, but in the backyard, and not the toilet. Regarding that, H said in her first interview in April 2004 that N touched her "on" her "private bit and on my bottom"[22], but the questions went on in that first interview and she added:

[19]

"Um, he pulled my pants down, down to here, and then he um put his hand in my private bit."

[20]

"Okay. You said he put his hand in your private bit. Okay. How did that make your private bit feel?"

[21]

She was then asked what N did with his hand that made her private bit hurt, and she said:

[22]

[17] Her initial description of the incident hurting her, admittedly in response to leading questions, was consistent both with the medical evidence and with her later description of penetration in October 2004 and her evidence-in-chief. Accordingly, the jurors were rationally entitled to distinguish between the evidence on counts 1, 2, and 3, and that on count 4, and to convict of an offence involving penetration on the last occasion. The jurors could be satisfied that penetration of the child's vagina had occurred, demonstrated by the medical evidence, just as H said had happened. The evidence did not disclose any sensible reason for disbelieving or doubting her consistent description of penetration once the medical evidence confirmed there had been such penetration around that time. Accordingly, I would dismiss that ground of appeal.

[23]

[18] N's counsel also complains that although the learned judge gave the jury proper directions and warnings about how to use, and not use, evidence about uncharged acts, that direction had only identified as such uncharged acts the evidence of N behaving improperly every time that H went to the bathroom. It did not specifically include a description she gave in her October 2004 interview - immediately before being reminded of each of the four occasions she had earlier described - that the occasions when N "pushed his finger up" had "started when dad was out then he'd come - they'd come over every night."[24] There was no evidence of N's family ever visiting H's residence at night, and no attempt by either counsel to establish in the video taped evidence whether H was describing any more occasions of abuse than the bathroom exploitation and the three other specific occasions. Nevertheless, counsel for N submitted on the appeal that that evidence had opened up the possibility of occasions of night time sexual abuse, not charged, consisting of digital penetration. Strictly speaking that is faintly possible, but neither the police officer in October 2004, or the Crown Prosecutor in August 2005, or defence counsel at the trial, asked any further questions suggesting or clarifying whether or not H was describing (night time) digital rape, and thus digital rape on any occasion other than the times identified by reference to the computer, the toilet, the sports oval, and the backyard. I consider the appellant draws too long a bow with the suggestion that the jurors may have improperly convicted on the basis of penetration on an unidentified night time occasion rather than the specific occasion described in count 4, and about which they heard actual evidence; particularly after the express warning of the trial judge not to misuse evidence of uncharged acts.

[24]

[19] Accordingly, I would allow the appeal in respect of count 3, set aside the conviction and sentence, substitute a verdict on indecent dealing with a child under 16, and invite written submission on the sentences on all four counts.

[25]

[20] HOLMES JA: I agree with the reasons of Jerrard JA and with the orders proposed.

[26]

[15] She said that on 24 April 2004, at AR 246.

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Judgment (26 paragraphs)

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