Court of Appeal (Qld)|2007-12-19|Before: McMurdo P, Jerrard JA and Daubney J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Jerrard JA and Daubney J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– MISDIRECTION AND NON-DIRECTION –GENERALLY – where evidencewas admitted of a previous assault by the appellant on the complainant –where the appellantcontended that the evidence was prejudicial and of limitedprobative value and that the judge's directions given as to the limiteduse tobe made of the evidence would not have stopped the jury wrongly using thatevidence – whether the directions were appropriate– whether amiscarriage of justice resultedCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where thecomplainant's evidence contained inconsistencies
to the extent that the
appellant contended that the guilty verdicts could not be supported by the
evidence – where the discrepancies
were not unexpected given the
complainant was aged between six and eight years at the relevant times, her
special problems and the
time frame over which she was required to recall events
– whether, on that evidence, it was open to the jury to be satisfied
of
the appellant's guilt beyond reasonable doubt
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – where
the appellant contended that the
convictions on counts 1 and 5 were inconsistent with the acquittals on counts 2,
3 and 4 and that
the convictions and acquittals of the jury could not be
rationally reconciled – whether a rational view of the evidence allowed
for the verdicts of acquittal on counts 2, 3 and 4 to sit with the verdicts
of convictions on counts 1 and 5
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
– PARTICULAR OFFENCES –
OFFENCES AGAINST THE PERSON –whether
the sentence was manifestly excessive
Evidence Act 1977 (Qld), s 93A, s 130, s 132B
M v The Queen [1994] HCA 63
(1994) 181 CLR 487, applied
R v B
[1992] HCA 68
(1992) 175 CLR 599, followed
R v Chevathen and Dorrick [2001] QCA 337
(2001)
122 ACrimR 441, followed
R v R CA No 240 of 1999, 15 February 2000, followed
R v Self
CA No 77 of 2001, 24 August 2001, followed
R v W CA No 349 of 1997
21 November 1997, followed
Stanley
v C [1997] QCA 296
CA No 192 of 1997, 15 July 1997, followed
Wilson v
The Queen [1970] HCA 17
(1970) 123 CLR 334, followed
Judgment (119 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - GENERALLY - where evidence was admitted of a previous assault by the appellant on the complainant - where the appellant contended that the evidence was prejudicial and of limited probative value and that the judge's directions given as to the limited use to be made of the evidence would not have stopped the jury wrongly using that evidence - whether the directions were appropriate - whether a miscarriage of justice resulted
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the complainant's evidence contained inconsistencies to the extent that the appellant contended that the guilty verdicts could not be supported by the evidence - where the discrepancies were not unexpected given the complainant was aged between six and eight years at the relevant times, her special problems and the time frame over which she was required to recall events - whether, on that evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - where the appellant contended that the convictions on counts 1 and 5 were inconsistent with the acquittals on counts 2, 3 and 4 and that the convictions and acquittals of the jury could not be rationally reconciled - whether a rational view of the evidence allowed for the verdicts of acquittal on counts 2, 3 and 4 to sit with the verdicts of convictions on counts 1 and 5
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON -whether the sentence was manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[15]
[1] McMURDO P: The appellant was convicted on 10 September 2007 of two counts of assault occasioning bodily harm (counts 1 and 5). He was acquitted of two counts of assault occasioning bodily harm (counts 2 and 3) and one count of assault occasioning bodily harm whilst armed (count 4). All the charges were said to have occurred between 14 August and 5 September 2006 and the complainant in each was his seven year old stepdaughter. On 13 September 2007 he was sentenced on each count to nine months imprisonment with an order that he be released on parole on 10 December 2007. He was also sentenced to a concurrent term of imprisonment of six months with a like parole release date for breaching a probation order in respect of an assault occasioning bodily harm of the same complainant in February 2005. He appeals against his convictions contending that the primary judge erred in allowing evidence of his previous conviction for assaulting his stepdaughter to be led at trial. He further contends that the guilty verdicts are unreasonable and cannot be supported by the evidence. He additionally submits that the verdicts of guilty on counts 1 and 5 are inconsistent with the acquittals on counts 2, 3 and 4. He applies for leave to appeal against his sentence contending that it is manifestly excessive.
[16]
[2] On 3 September 2007 the prosecution brought an application before Searles DCJ for a ruling that it be permitted to lead evidence of the appellant's plea of guilty to the previous assault of his stepdaughter and of her recorded evidence in relation to it under s 93AEvidence Act 1977 (Qld). Searles DCJ granted that application. His Honour considered the evidence was admissible on two bases. The first was to show the true nature of the relationship between the appellant and his stepdaughter. The second was to negative defences raised in cross-examination of prosecution witnesses at the committal, for example, that her injuries may have been received in an accident, by misadventure or through another.
[17]
[3] The young complainant's evidence on the present charges was central to the prosecution case. It was pre-recorded in an interview with police on 5 September 2006 and admitted at trial under s 93A. Her trial evidence was recorded before Searles DCJ on 5 September 2007. The trial proceeded before Richards DCJ and a jury on 6 September 2007. I note that when sentencing the appellant, her Honour stated that from observing the child give her evidence, it was clear that she had special needs because she had a short attention span. From my perusal of the transcript of the child's evidence, that observation seems entirely apposite.
[18]
[4] When the present offences occurred the complainant lived with her mother, the appellant, a young boy, F (the son of the appellant and a former partner), and a baby boy, L (the child of the appellant and the complainant's mother).
[19]
[5] On 29 August 2006, the complainant's teacher noticed a bruise on the child's left cheek. She reported it to the principal. She asked the complainant its cause. She said her dad got upset with her and pushed her into a wall. Later that day she told the teacher, "He'd pull my head back by the hair and pushed me into a table." On the following Monday, 4 September 2006, the complainant told the teacher that part of her body hurt again. She showed the teacher marks on her body. There was a graze and a mark on her sternum about the size of a 50c piece and bruises on her hip, arm and thigh. She told the teacher that the mark on her back happened when her mother picked her up by the feet, pulled her on concrete and was frustrated and angry with her.
[20]
[6] The complainant's teacher in the first semester of 2006 gave evidence of having observed bruises and other injuries to the complainant on occasions when she attended school. These injuries were not the subject of any charge and there was no evidence that the appellant was responsible for them. The child told this teacher that she hurt herself at home. That teacher asked the complainant about a bruise on her face. The girl said that her mum was sweeping and the broom fell down and hit her in the face. There was no objection from the defence to any of this evidence.
[21]
[7] The complainant was interviewed by police about the present offences on 5 September 2006. The police officer asked her about the bruise to her face. She said:
[22]
"CHILD: Um, I had it when mum hit the broom and now it's
[23]
CHILD: Um, he, he, he wanted me to answer a question but I didn't and then he was um, he, he hit me on the table and he hit me on the cheek and it really hurt.
[24]
PO: Mmm, when you say he hit you, he wanted you to answer a question but you didn't.
[25]
CHILD: Because I had a mouthful and he was waiting for an answer.
[26]
CHILD: Yeah, and he was still waiting for an answer, I'm like, I'm trying to speak with my mouthful.
[27]
CHILD: He grabbed me, he grabbed me there and he grabbed me by the shirt and then he whacked me on the table.
[28]
PO: And how did he whack you, can you show me how he whacked you.
[29]
CHILD: Um, he, there was a sharp bit at the end and he hit me.
[30]
CHILD: And I was at the end and he, um, he, he got um and it really hurt.
[31]
PO: Okay, okay, and so just show me that, the left side of your face again, the side of the cheek, you've got a bit of a bruise there.
[32]
[8] This was the primary evidence relied on by the prosecution to establish count 1 of which the appellant was convicted and for which he was sentenced to nine months imprisonment with a parole release date on 10 December 2007.
[33]
[9] Her evidence in the police interview in respect of count 2, assault occasioning bodily harm, on which the appellant was found not guilty, was as follows. She showed police a bruise in the middle of her back and was asked how she got it. She said:
[34]
"CHILD: Um, he wanted me to answer a question but I wouldn't because I was, because I, I didn't want to get in trouble and I just wanted just to go and play in my room.
[35]
CHILD: He wanted me to go to mum so I can mum and he, he grabbed me and he um and he took me and hit me on the corner of the drawer.
[36]
PO: And he took you and he hit you on the corner of the drawer.
[37]
CHILD: Yes, and I had one on my foot, I had one on my feet when I was um, when I was like, when I was baby, I had a sore um feet, foot, I had one there and because I didn't have any dad and I kept on saying dad, dad and my mum hit, my mum hit me with the broom.
[38]
PO: Okay, when you say, when you say he hit you on the corner of the drawer, which um drawer was that.
[39]
PO: The one on the back, the one on your back was from Monday as well.
[40]
[10] The complainant's evidence as to count 3, assault occasioning bodily harm, on which the appellant was also acquitted, was as follows. A police officer asked her about two bruises visible on her left arm and asked her how she got them. She responded:
[41]
CHILD: Um, he punched me because I wouldn't answer a question that I was told to, when, when I was still thinking.
[42]
PO: A long, long time ago, how long is a long, long time ago.
[43]
CHILD: It was um after the police came when I told them, I told them this story when he um hurt me, I told this story, I'll tell you the story that I told to the police."
[44]
[11] The complainant's evidence in respect of count 4, assault occasioning bodily harm whilst armed with a shoe, on which the appellant was found not guilty, was as follows. The police officer asked her about a bruise on her right upper thigh. She said:
[45]
CHILD: He got, he got mum's shoe and um I see when he got mum's shoe and he threw it and he hit me leg.
[46]
PO: So he got mum's shoe, he threw it and hit your leg.
[47]
CHILD: Yeah, and I fell down and I was crying when it hurt.
[48]
CHILD: When, at the end of the day when we, we, when we go home.
[49]
CHILD: Yeah, I think it was Monday when he done it and he was day shift last, he, it was his last day on day shift and now he's back on night shift today."
[50]
[12] The complainant's evidence on count 5, assault occasioning bodily harm, on which the appellant was found guilty and sentenced to nine months imprisonment with a parole release date on 10 December 2007, was as follows.
[51]
"PO: Tell me about your um your hip, how did you get that bruise.
[52]
CHILD: He took all my toys, this is when I took, this is when I got my toys taken away, he took my toys and put them in the spare room.
[53]
CHILD: And I wanted them back but I was never allowed them back.
[54]
CHILD: Until I be good, and he's has, (U.I.) and the other day.
[55]
PO: Mmm, how did he actually give you the bruise though, you said he took your toys away.
[56]
CHILD: He, he wanted me to go somewhere but I didn't want to, I didn't want to face the corner and he hit me.
[57]
PO: Right, what are you in trouble for to start with, do you remember.
[58]
CHILD: I was in trouble for not speaking up and I like whispering all the time.
[59]
PO: Mmm, okay, and how, when you said he didn't, sorry, you didn't want to face the corner, so he hit you, how did he hit you.
[60]
[13] The Court has seen photographs of these bruises. They are quite minor. The most noticeable are the ones to the face and to the hip. The other bruises and marks are small and of a type that are common in children of the complainant's age from normal rough and tumble play.
[61]
[14] The earlier interview between police and the complainant relating to the appellant's prior assault of her in February 2005 was conducted on 15 February 2005. The police officer asked her about a bruise to her face. The interview continued:
[62]
PO: Okay. Tell me about your face, ... . Tell me about that.
[63]
CHILD: He sort of just and really punched me really super hard.
[64]
PO: Okay, and tell me how daddy did that to your face
[65]
CHILD: Because I didn't put my sheet on my bed and I didn't put my clothes away.
[66]
PO: Because you didn't put your sheet on your bed and you didn't put your clothes away.
[67]
CHILD: And then, but I didn't put my clothes away, straight away.
[68]
PO: Okay, and do you know what time of the day it was when that happened.
[69]
[15] In this earlier interview, the complainant said that the appellant had done this sort of thing to her before "heaps of times" on six or seven occasions. He would sometimes smack her "really super hard on the bum" leaving "heaps and heaps" of red marks. Sometimes the appellant hits F really hard on his back and on his arms. When she was asked about a scratch noticeable on her leg under her shorts, she said the appellant pushed her down onto a water filter. It was bleeding and she was crying. She said that if the appellant caught her playing with her toys when she was sent to her room for being naughty, he would smash her into the wall.
[70]
[16] The appellant gave the following evidence. The complainant was diagnosed by a paediatrician from Ipswich Hospital, Dr Miller, as having ADHD in July or August 2006. She is an adventurous child. She likes attention. He denied committing any of the offences. He did not discipline the complainant with physical punishment. He used "time out" and had done the Triple P parenting course. She often played boisterously with her young male cousins. On the following Monday he was at work on the afternoon shift and he could not have thrown the shoe at her as she claimed. As to the prior offence of assaulting the complainant, he said that although he pleaded guilty he did not commit the offence. The child's mother was six months pregnant with his child, their first together, when he was charged. The committal proceedings were held a few weeks after the child's birth. The guilty plea was the best way of quickly disposing of the matter so that he could return to his family and get it behind him.
[71]
[17] The complainant's mother (the appellant's partner) gave evidence. She denied ever witnessing any occasion of excessive violence by the appellant towards the complainant or other children in the household. She described incidents which occurred in the family home as accounting for some of the bruises and marks on the complainant's body. Shortly before the police interview in early September 2006, the complainant slipped in the bath and hit her hip causing an instantly visible mark which developed into a bruise the next day. The complainant was generally clumsy and would often bump herself or fall over. She was sometimes the victim of physical bullying at school. She engaged in rough play with her boisterous boy cousins and she was bullied by her slightly older stepbrother.
[72]
[18] The complainant's maternal aunt (a former partner of the appellant) and her maternal grandparents also gave evidence in the defence case. They each spent considerable time with the complainant and her family. They did not witness anything which would cause them concern about the appellant's conduct towards the complainant.
[73]
Was the evidence of the previous conviction for assaulting the complainant admissible in this trial?
[74]
[19] The appellant contends that the evidence relating to the 2005 assault on the complainant and his plea of guilty to it was so prejudicial and of such limited probative value that it should not have been admitted in evidence. It presented a risk that the jury would convict him on the basis of propensity evidence and seek to punish him for uncharged conduct. The judge's directions given as to the limited use to be made of the evidence would not have stopped the jury using that evidence in a process of illegitimate reasoning in deciding the issues in the present case. The confusion as to how to use the evidence was compounded by the judge's summation of the prosecutor's submissions.
[75]
[20] The judge's directions to the jury as to this evidence were as follows:
[76]
"As you have heard, there was an earlier matter in 2005 when she says she was hit to the face and, in fact, the [appellant] pleaded guilty to an offence of assault occasioning bodily harm in relation to that and there is two other matters where she says - this was in the interview in 2005 which you heard played - that he smashes her into the wall if he catches you playing with toys and she is also asked in that first interview about any previous hitting by the [appellant] and she said that he had hit her five or six times, she said, 'Five, six, maybe seven times'. So previous generalised acts of violence that she talks about in that first interview.
[77]
Now, those incidents that are not the subject of charges before you can only be used in a certain way, ladies and gentlemen. If you accept the evidence that the complainant says about those previous acts of violence, the prosecution says it shows the true nature of the relationship between the [appellant] and the complainant, thus placing these allegations, the subject of the charges, in their proper context.
[78]
You should have regard to the evidence of the incidents not the subject of charges only if you find it reliable. If you accept it, you must not use it to conclude that the [appellant] is someone who has a tendency to commit the type of offence with which he is charged. It would be quite wrong for you to reason, if you are satisfied of that, that he did those acts on other occasions therefore he must have committed these charges.
[79]
Further, you should not reason that the [appellant] had done things equivalent to the charges on other occasions and on that basis, he could be convicted of the offences charged, even though the particular offences charged are not proved beyond reasonable doubt. Remember that the evidence of the incidents not the subject of charges comes before you only for the limited purpose mentioned and before you can find the [appellant] guilty of any charge, you have to be satisfied beyond reasonable doubt that the charge has been proved by the evidence relating to that charge.
[80]
Of course, if you do not accept the complainant's evidence relating to the incidents not the subject of the charges, you can take that into account when considering her evidence relating to the alleged events, the subject of the charges before you."
[81]
[21] In summarising the prosecution case, her Honour included the following:
[82]
"[The prosecutor] said the problem for the [appellant] is he has to deny the previous offence because otherwise it is unlikely then that the suggestion that it happened accidentally or by someone else would be accepted by you. [The prosecutor] said you do have to accept the evidence of [the complainant] as being truthful and reliable to convict the [appellant] but she is not standing by herself on this because there is the bruising, which you can see in the photos, and the teachers noticed. There is the plea of guilty in the Magistrates Court by the [appellant] to a previous assault on this child and when you put those things together, then the fact that she does have inconsistencies in her evidence, that her timing is inconsistent and she is wrong on things like exactly when things happened, you can still be comforted by the fact that the photos do not lie and there is bruising and when the police point to the bruising, she gives her explanation about what happened."
[83]
[22] Evidence of the sort that is the subject of this ground of appeal has long been recognised by the courts as admissible for the limited purpose of showing the real and full relationship existing between a complainant and an accused person: Wilson v The Queen,[1] R v B,[2] R v W,[3] R v R,[4] R v Chevathen and Dorrick,[5] and R v Self.[6] Until the High Court unequivocally states otherwise, such evidence is admissible and relevant. Once it is seen that the evidence was relevant, as the law presently clearly provides, s 132BEvidence Act 1977 (Qld) also allows for its admission into evidence. The evidence was highly prejudicial to the appellant. That is why Searles DCJ was asked to exclude it in the exercise of his discretion.[7] Different judges may reasonably have reached different conclusions as to whether in the exercise of their discretion, the probative value of this evidence outweighed its prejudicial value. Searles DCJ carefully considered all pertinent matters issues and gave sound reasons for allowing the evidence to be led. The appellant has not demonstrated any error on his Honour's part in finding the evidence was admissible.
[84]
[23] Because of the prejudicial nature of the evidence and the limited use for which it was admitted at trial, it was imperative that the trial judge, Judge Richards, gave clear and careful directions to the jury on the evidence. Her Honour's directions are set out above.[8] They made clear that the jury could not use the evidence of the 2005 assault to conclude that the appellant was someone who had a tendency to commit this type of offence. They also made clear that before the jury could find him guilty of any of the charges, they would have to be satisfied beyond reasonable doubt that each charge had been proved by the evidence relating to it. That direction was stated as clearly as it could be. The concept is not easy to rationalise but this Court must proceed on the basis that the jury comprehended the directions the trial judge was required by law to give, unless the contrary is established. The judge added the following related direction which benefited the appellant: if they did not accept the complainant's evidence relating to any uncharged incidents they could take that into account when considering her evidence of the charged offences.
[85]
[24] I am not persuaded that the strength of the judge's correct directions was watered down by the judge's later summation of the prosecution case on which the appellant places some emphasis (set out at [21]). A summation of the submissions of counsel is just that: an approximate summary. From the judge's summary (about which there was no request for redirection), it seems the prosecutor used the appellant's plea of guilty to the 2005 assault and the complainant's evidence of it to support the complainant's evidence on the present office. No doubt this was as indirect support showing that his relationship with her was not one where, as he claimed, he was the firm but controlled non-violent disciplinarian, but rather one where he had an admitted history of unlawful violence towards her. The prosecutor seems also to have used the relationship evidence to refute the possibility that she received the injuries in some way other than from the appellant. It must be emphasised that her Honour was summarising both counsel's submissions for the jury. She had immediately beforehand summarised the defence case, which was that the jury would have a doubt as to whether the minor bruises to the complainant were caused by the appellant rather than in some other way, especially in the light of the many inconsistencies in her evidence. Shortly before that, the judge had correctly directed the jury as to how to use the relationship evidence. The jury must be expected to have followed those directions which had the judge's authority behind them, and not to have been confused by the judge's later summary of counsel's submissions.
[86]
[25] I am satisfied the trial judge's directions to the jury sufficiently emphasised the limited way in which they could use the evidence of the appellant's plea of guilty to the 2005 assault and the complainant's evidence about it. I am also satisfied those directions were not effectively dissipated by the judge's summation of the prosecution case. No miscarriage of justice has resulted. This ground of appeal fails.
[87]
Were the guilty verdicts unreasonable and not supported having regard to the evidence?
[88]
[26] The appellant, through his counsel Mr Heaton, emphasises the following matters as weakening the complainant's evidence. She gave different accounts to her teacher as to how the appellant caused the bruise on her face, the subject of count 1. She told her teacher that her mother, not the appellant, caused the mark on her back (count 2). In cross-examination she said that her mother had accidentally hit her with the broom shortly before she went to speak to the police about the present offences. She told her semester one 2006 teacher that her mother had accidentally hit her with the broom in relation to an earlier bruise to her face. In cross-examination about the 2005 assault, she said the appellant pushed her head into her pie at dinner. She did not mention this in the police interview about this offence; she told the police that the appellant punched her in the face. When cross-examined at trial about playing with her cousins, she volunteered that she got the bruise on her face (count 1) when one of them pushed her against the wall at her house. She also accepted that she slipped in the bath and hit her hip (count 5) on the Sunday night (3 September 2006) before she was interviewed by police.
[89]
[27] The appellant, in a handwritten outline of argument, added other alleged inconsistencies in the complainant's evidence. Mr Heaton said that he relied on these in a general way although he did not specifically address the Court on them and could not tell the Court how these differed from his own submissions. Most of these matters were covered in Mr Heaton's submissions. The effect of the appellant's additional submissions was that in the complainant's s 93A statement and in her pre-recorded cross-examination she gave a variety of explanations as to how the bruise to her cheek (count 1) was caused. She also spoke of an incident with a broom when her mother accidentally caused her an injury to her face. She said she received bruises through play with her cousins shortly before the police interview; that some children at school punched and kicked her. She told a child health nurse that she was bullied at school and had been kicked by a child called Amy. She explained bruises to her chin and leg on the basis that she was clumsy.
[90]
[28] These internal inconsistencies in the complainant's evidence and the inconsistencies between her evidence and other witnesses were thoroughly investigated by defence counsel at trial before the jury. The judge reminded the jury of many of these inconsistencies when summarising the defence case. She was seven years old when she was interviewed by police in September 2006 and but six years old at the 2005 interview. She was eight years old at trial. By then, she was being asked about incidents which occurred one and two years earlier. The discrepancies are not surprising given her very young age, her special problems, and the time frame over which she was required to recall events. She did not, however, shift from the allegations made in her statement to police in September 2006 which supported the guilty verdicts on counts 1 and 5. In cross-examination, she maintained that the appellant did assault her as she claimed to police. There were photographs of the noticeable and sizeable bruises to the complainant's face and hip which supported her evidence to the extent that they showed she had suffered those injuries.
[91]
[29] At first she seems to have made an inconsistent statement to police as to how the bruise to the face (count 1) occurred. But on closer examination, it seems she was explaining that she had previously had a bruise to her face after her mother accidentally hit her with a broom and the bruise returned after the appellant hit her face on the table.
[92]
[30] The other inconsistencies were explicable because she was a young child with poor concentration. She sometimes confused one episode of violence from the appellant with another because of the passage of time and the numerous times the appellant had hit her.
[93]
[31] The jury clearly understood the judge's directions that they must accept beyond reasonable doubt the young girl's evidence on the present offences before convicting. They seem to have conscientiously assumed their onerous task. In a redirection application, they requested to again hear the complainant's interview with police about the present offences. To maintain balance, the judge instead read back the transcript of it and all relevant cross-examination.
[94]
[32] I accept that a reasonable jury could have acquitted on these counts. But after reviewing the whole of the evidence, I am not persuaded that in all the circumstances the jury must have had a doubt about the appellant's guilt on counts 1 and 5. I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 1 and count 5: M v The Queen.[9]
[95]
[33] The appellant contends that the guilty verdicts on counts 1 and 5 should be set aside because no jury acting reasonably and applying their minds appropriately to the issues in the case could have convicted on those counts whilst acquitting on counts 2, 3 and 4. There is simply no rational basis for the jury's acquittal on counts 2, 3 and 4 whilst convicting on counts 1 and 5.
[96]
[34] Richards DCJ told the jury, correctly, that they could return different verdicts on different counts and that they must separately consider the evidence and the verdict on each count. In her sentencing remarks, her Honour considered that the acquittals were "on the basis that those injuries seemed to be less serious and the jury may well have found that the Crown did not negative a defence of domestic discipline in relation to those three counts." There seems considerable merit in her Honour's observations. The photographs show that the marks and bruises occasioned by counts 2, 3 and 4 were much less obvious than the bruising in counts 1 and 5.
[97]
[35] As the respondent points out, the verdict of acquittal on count 2 may also be explicable on another basis. The jury may have had a doubt as to whether the child's description to police in her more recent interview was confused with her account to police of the earlier assault, when she said the appellant "smashed" her into a wall. Furthermore, she told her teacher at the time of the alleged offence that the mother caused the mark on her back, not the appellant. These matters were sufficient to leave the jury in doubt on this count and provide a rational explanation for the acquittal.
[98]
[36] The complainant's evidence on count 3 was that the incident occurred "a long, long time ago". Count 3 was charged as occurring on a date unknown between 14 August 2006 and 5 September 2006. That suggests that the offence occurred long before the police interview on 5 September 2006. The judge directed the jury that the Crown had to prove that each offence occurred on the date alleged. The jury could reasonably have had a doubt as to whether this offence occurred at that time. This is a rational explanation for a verdict of acquittal on count 3.
[99]
[37] The complainant's evidence on count 4 was that the incident had occurred late on the Monday, the day before the interview. The appellant gave evidence that he worked an afternoon shift that Monday and did not see the complainant at all that afternoon. His assertion was not challenged in cross-examination. This provides a rational explanation for the jury's verdict of acquittal on count 4.
[100]
[38] By contrast, there was evidence sufficient to enable the jury to convict in respect of count 1. The bruise to the face was obvious. She did not depart from her account to police that the appellant hit her face onto the table. As to count 5, the jury were entitled to accept her version to police as to how it occurred and to reject the evidence of the appellant and her mother that it happened when she slipped in the bath. Although the complainant accepted she slipped in the bath and banged her hip during the weekend before the police interview, she maintained that the appellant hit her in the hip with his fist. The bruises related to counts 1 and 5 were patent.
[101]
[39] I am satisfied that there is a rational view of the evidence which allows for the verdicts of acquittal on counts 2, 3 and 4 to sit with the verdicts of convictions on counts 1 and 5. This ground of appeal fails.
[102]
[40] It follows that the appeal against conviction must be dismissed.
[103]
[41] The appellant in his handwritten submissions to this Court sought to abandon his application for leave to appeal against sentence, but Mr Heaton informed us that by the time of the appeal hearing the appellant had given instructions to pursue the application.
[104]
[42] The appellant was 44 years old at the time of the offences and 45 at sentence. His only relevant criminal history was the 2005 offence of assaulting the complainant and occasioning her bodily harm. No conviction was recorded and he was placed on probation for 18 months. As the judge noted, this prior offence for which he was on probation at the time of these offences, was an exacerbating feature.
[105]
[43] The judge also noted the following. The complainant was obviously a child with special needs. She would at times be difficult to deal with because her attention span was not particularly long. The appellant was in many ways a conscientious parent to her and did at times show patience and calmness. Nevertheless, he had persistently assaulted her. She was young and vulnerable. A term of imprisonment should be imposed in the circumstances but because of the appellant's efforts at rehabilitation he would be released on parole after three months.
[106]
[44] The bruising to the child resulting from the present offences was relatively minor. The circumstances of the offences were at the lower end of the scale of seriousness, at least in terms of the physical harm to the complainant. The appellant had a good working history and had financially supported the complainant and her family in spite of his forced estrangement from them leading up to the trial. Since committing these offences, he seemed to have made real efforts on probation to address his behaviour to avoid further offending. On the other hand, the appellant showed no remorse and did not cooperate with the administration of justice. He committed the present offences whilst on probation. The sentence imposed also reflected a penalty for breach of probation. The appellant was in a position of trust to a child with special needs who was particularly vulnerable. Deterrence is an important aspect when sentencing offenders for offences like these. The sentence imposed is supported by Stanley v C.[10] I am not persuaded that the sentence was manifestly excessive. The early release on parole sufficiently recognised the mitigating factors.
[107]
[45] I would refuse the application for leave to appeal against sentence.
[108]
[46] JERRARD JA: I agree with the reasons of, and orders proposed by, the President.
[109]
[47] DAUBNEY J: I agree with the reasons for judgment of the President, and with the orders she proposes.