R v Rankin [2000] QCA 54

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: After a trial, the appellant was convicted of two offences of indecently dealing with a child under the age of 12. Apart from the contention that the verdicts were unreasonable, the grounds of appeal concern the summing-up.

[2] The appellant was born in 1964. The complainant was born on 23 May 1981. The trial commenced on 24 August 1999 and concluded the following day. The complainant was therefore then 18. She was younger when the charged incidents are said to have occurred: the first between 22 May 1991 and 23 May 1993; the second between one December 1992 and 10 March 1993.

[3] The complainant met the appellant in 1989 at about the time he began to live with the complainant's mother. Afterwards, the complainant told the jury, the appellant "used to try and touch me" when her mother was away. In response to the prosecutor's question whether she remembered any such "sessions" "specifically", the complainant first spoke of an incident when she was eight or nine. One night, after returning from the toilet, she got onto a mattress that she shared with her brother. In those days, the appellant and the complainant's mother occupied a bed in the same room. Her mother, the complainant said, was out of the house. The appellant told her that she could sleep next to him. She said that she did not want to do so. Afterwards, she heard the appellant "moaning and groaning" on the bed and she thought he was masturbating.

[4] The second event occurred, the complainant said, when she was about 10. She remembered falling asleep in her own bed, clothed, and waking up later, naked, in her mother's bed with the appellant lying next to her. She got out of the bed, wrapped a towel around herself, and ran down the street to where her mother was playing cards. Neither of the above incidents was the subject of a charge in the indictment.

[5] The third incident was charged as count 2. The substance of her testimony about it was this. The complainant was 11 or 12 when she contracted scabies on her hands and arms. On an occasion when her mother was absent, she was to apply lotion to the afflicted limbs after showering. The lotion was in her mother's room on a duchesse. When she went to get it, she found the appellant sitting on the bed. He told her to apply the lotion over all her "body parts". She replied that her mother had said that she need only apply it to hand and arm. The appellant made her remove her nightdress and told her to lie down on the bed, which she did. He rubbed the lotion onto her back and legs. He pulled down her pants and rubbed her "backside". Then he rolled her over and starting rubbing her breasts and her "vagina parts". Soon he put his finger inside her vagina, hurting her. The sudden pain made her move away from the bed. She dressed and left the room.

[6] The fourth incident was charged as the first count. The complainant testified that one day, as she was walking from the shower after swimming, the appellant "quickly brushed his hand against my breast" and she let out a "little scream".

[7] The appellant did not give or call evidence. In these circumstances, the proposition that it was not open to the jury to convict[1] is essentially founded on differences between the complainant's testimony and things she had told the police in September 1993 during an audio-taped interview. During her cross-examination, at defence counsel's request of the prosecutor, the tape was received into evidence and the jury provided with a transcript of the recording.

[8] In the 1993 interview, the complainant told of three incidents. Two had not been mentioned in her testimony. The first in time occurred when she awoke from a sleep to find the appellant touching her with his hand on the chest, close to her breasts. She was then eight or nine. The other took place when she was in grade five. According to her account to the police, the appellant called the complainant into his bedroom, where she found him "playing with himself". He asked her to touch his penis. She declined and complained to her mother. The third incident concerned treatment for scabies. The complainant told the police that she had scabies all over her body, not just on her hands and arms. She also then recalled that the lotion (which in 1993 she called "cream") was kept in a refrigerator, from where she took it. Having done so, she went into her bedroom and was applying the cream when the appellant called out for her. The police were informed that she removed her own clothes. In the interview, she spoke of the appellant's touching her genitalia as he applied the cream. She did not then speak of digital penetration, but she did tell the police that he touched her "vagina".

[9] Explanations were elicited in the complainant's cross-examination for her omission to advert in evidence to the two uncharged incidents described in the interview. She had not remembered, she said, the hand on chest incident; and until the recording was played in court, she had, she agreed, forgotten the occasion on which the appellant asked her to touch his penis. The complainant was also pressed with her omission to tell the police in 1993 of the two uncharged incidents that she had recounted in her testimony. Asked why she had not told the police of running naked from the appellant's bed to find her mother, she replied: "I don't know". Her omission to mention the touching after the shower incident during the interview was unexplained, except, perhaps, by her testimony that "There's a lot of things he did I didn't tell anybody". The absence of a distinct reference in 1993 to digital penetration during the scabies incident was also pursued. The complainant answered this by pointing out that two men were present at the interview, apparently intending to convey that she was hesitant to tell males of the painful digital penetration.

[10] Not surprisingly, the complainant acknowledged that her recollection of encounters with the appellant was better in 1993 than at trial.

[11] The divergences between the 1993 and 1999 versions afforded arguable grounds upon which the jury might have entertained a doubt about the reliability of the complainant, despite the absence of a contradicting account from the appellant. However, most of them were the subject of explanations by the complainant, and the jury must have found them acceptable. Neither the trial transcript nor any more general consideration provides a sound basis for thinking that the jury should have regarded the complainant's explanations as unsatisfactory. Nor is there otherwise sufficient reason to conclude that the jury ought to have doubted the accuracy and reliability of her testimony concerning the charged incidents. Nothing she said is inherently implausible. It was not inconsistent with other evidence, except in respect of some details in relation to the scabies treatment encounter. Although a motive to concoct the allegations was suggested, none was established. And, importantly, her testimony, and divergences between it and the 1993 interview, fell to be assessed in the light of the fact that what she said was not challenged by the word of the appellant.

[12] Although there was no corroboration, in all the circumstances, it was open to the jury to convict in respect of both charges.

[13] Three challenges are made to the summing up.

[14] It is said that the judge should have given "a specific warning" drawing attention to features of the prosecution case, bringing home to the jury a consequential need to scrutinize the complainant's testimony with great care before arriving at a conclusion of guilt, and reference was made to Robinson v The Queen.[2] Those features are: the complainant's youth at the time; the period that elapsed between incidents and trial;[3] inconsistencies between the complainant's testimony and the 1993 interview; absence of recent complaint, of a suggestion of force or threat, and of corroboration; and a suggestion put in cross-examination of a motive for concoction: a dispute with the complainant and her husband on one side and the appellant and the complainant's mother on the other which led to an eviction in late 1998 from the unit occupied by the appellant and the mother.

[15] There was no request that the judge make particular comment on the evidence, still less that he should warn of a special need for caution in view of that combination of circumstances. The omission is unsurprising.

[16] In the first place, in a summing-up in which the jury was reminded of defence criticisms of the complainant's testimony, the judge did tell the jurors that they "should scrutinize her evidence carefully before coming to the conclusion that you are satisfied beyond reasonable doubt of each of the elements charged".

[17] Secondly, before the complainant's cross-examination concluded, it must have been obvious to the jury that the complainant had said things in 1993 which differed from her testimony. And it cannot have escaped attention that in 1993 she told of incidents that she had not related at the trial. The fallibility of memory, and its tendency to falter over time, are ordinary experiences quite within the understanding of jurors. So also, a jury scarcely needs to be reminded that a question is necessarily raised about the reliability of a storyteller who recounts one version of events one day and another the next. The suggestion that the complainant may have been actuated to fabricate her testimony because of a falling out with her mother and the appellant was a simple enough notion that the jury could have assessed adequately without the need for judicial emphasis. And that is also true of the other considerations that are now said to have required a warning in which the authority of the judge's office would have been lent to criticisms of the prosecution case that were both obvious enough and must have been impressed upon the jury by defence counsel in address.

[18] The circumstances now said to have required the warning were comfortably within the capacity of jurors to evaluate properly with the benefit of their accumulated experience and the addresses of counsel.[4] No such warning was necessary to avoid a perceptible risk of a miscarriage of justice.

[19] Directions concerning evidence of the uncharged incidents are also said to have been erroneous.

[20] The judge directed the jury that the uncharged incidents described in the complainant's testimony could be considered as indicating the true nature of her relationship with the appellant. The jury was also instructed that evidence of those acts should not be substituted for evidence relating to the specific acts charged, and that these uncharged incidents could not be used as showing a general disposition to commit offences of the kind charged. There was no request for redirection. However, it is now submitted that the judge should have directed the jury to disregard the evidence altogether.

[21] The evidence was received without objection, presumably because defence counsel had it in mind to use the testimony as a basis for inviting the jury to entertain reservations about the complainant's credibility. These uncharged incidents, it will be remembered, had not been mentioned in the 1993 interview. Perhaps it was thought that the evidence was material as an indication that the relationship with the appellant was at times sexual, so that the jury could better appreciate the setting in which the charged incidents were alleged to have occurred.[5] The latter was the complexion which the judge put upon the evidence. Although it is doubtful that the first, and perhaps the second, of these uncharged incidents revealed a sexual interest by the appellant in the complainant, once the evidence of these incidents was adduced, it was appropriate that the judge give a direction on the limited use that might properly be made of it.

[22] His Honour, as has been said, spoke of the evidence as bearing upon "the true nature of the relationship". This, somewhat enigmatic, choice of words may not have been an altogether helpful characterization of the evidence. But the judge did instruct the jury that the evidence could not be used to indicate a general disposition to commit offences of the kind charged. In the context of the entire summing up, this could only have been taken as an indication that a conviction on a charged offence depended upon the jury's being convinced of the truthfulness of the complainant's testimony concerning the charged events. The instruction could have been better expressed[6], but it was not a misdirection, and it sufficed in the circumstances of this case.

[23] The judge was not obliged to direct the jury to ignore the uncharged incidents to which the complainant testified. To do so would have been to deprive the defence of the opportunity to exploit the absence of reference to them in 1993 to cast doubt on the complainant's reliability.

[24] The final complaint concerns the absence of a direction concerning the use that could be made of the uncharged incidents mentioned in the 1993 interview.

[25] The judge's directions concerning the limited use that might be made of uncharged incidents was directed to those mentioned in the complainant's testimony. It would have been better had the judge mentioned in that context the two uncharged incidents described in the interview. But it cannot be supposed that the jury may have used the interview incidents impermissibly merely because they were not specifically adverted to, which no doubt explains why there was no request for a redirection to draw the jury's attention to them.

[26] The appeal should be dismissed. The notice of appeal also referred to an application for leave to appeal against sentence, which was not pursued, and must be refused.

[1] See Jones v The Queen (1997) 191 CLR 439, 450-451.

[2] [1999] HCA 42; 73 ALJR 1314.

[3] It was not suggested at the trial that the delay between the incidents and the 1993 complaints, or between those complaints and the trial, might have deprived the appellant of the means of testing the allegations or otherwise put at risk the fairness of the trial: contrast R v Aristidis [1998] QCA 422; [1999] 2 Qd R 629.

[4] cf R v Mazzolini [1999] VSCA 150; 23 September, 1999, especially par 36 and par 55.

[5] See R v S (1998) 103 A Crim R 101, 102, 110-111.

1. [6]A direction along the lines of that suggested in R v Vonarx, VSCA No 181 of 1995; 15 November 1995, extracted by Kirby J in Gipp v The Queen (1998) 194 CLR 106, 156-157 (par 141) would have been preferable. See also the suggestions concerning the form of direction by McHugh and Hayne JJ, dissenting, in the same case at 130-131 and 133 (par 72 and par 78).