SUPREME COURT OF QUEENSLAND CITATION: R v MCE [2015] QCA 4 PARTIES: R v MCE (appellant) FILE NO: CA No 186 of 2014 DC No 198 of 2012 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction District Court at Rockhampton DELIVERED ON: 6 February 2015 DELIVERED AT: Brisbane HEARING DATE: 4 December 2014 JUDGES: ORDER: CATCHWORDS: COUNSEL: SOLICITORS: Fraser, Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made Appeal against conviction dismissed. CRIMINAL LAW APPEAL AND NEW TRIAL VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE where the appellant was found not guilty of rape but guilty of the alternative charge of indecent treatment of a child under 16 where the appellant claimed that the complainant was not a credible or reliable witness whether the jury s verdict was unreasonable in light of the evidence MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited The appellant appeared on his own behalf B J Power for the respondent The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] FRASER JA: On the afternoon of the third day of a trial in the District Court a jury found the appellant not guilty of rape but guilty of the alternative charge of indecent treatment of a child under 16 with the circumstance of aggravation that the child was under 12 years of age. The appellant has appealed against the verdict on
2 the ground that it is unreasonable and cannot be supported having regard to the evidence. The appellant also applied for leave to appeal against sentence but he filed a notice of abandonment of that application before the hearing. [2] The appellant s ground of appeal against conviction requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence. 1 If the Court is left with a reasonable doubt whether the appellant is guilty, it will only be where the jury s advantage of seeing and hearing the evidence can explain the jury s different conclusion that the Court may decide that no miscarriage of justice has occurred; if, after making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. 2 [3] The Crown case depended upon the evidence of the complainant, who was the appellant s step-daughter. Evidence of a preliminary complaint by the complainant was given by her mother and by a friend of the complainant s mother. The complainant s mother also gave evidence of a confession by the appellant. The offence was alleged to have been committed on an unspecified date during an identified period of about six weeks in the first half of 2011. The complainant was seven years old at that time and also when she was interviewed by police about ten days after the conclusion of that period. She gave pre-recorded evidence when she was nine years old. [4] In the police interview, which was tendered in evidence under s 93A of the Evidence Act 1977 (Qld), the complainant responded to an initial question about why she was talking to police by saying that daddy put his finger in my hoo hoo. The complainant said that A (a child of the appellant and the complainant s mother, who was about three or four years old at the time of the alleged offence) was asleep on the bed and the complainant and B (another, younger child of the appellant and the complainant s mother) were asleep on the floor. The appellant must have put A on the floor and the complainant on the bed while she slept. When the appellant started doing it she woke up and told him to stop doing it please. The appellant asked her what he was to stop doing and she responded to stop putting that finger in her hoo-hoo. The appellant said okay. The complainant went back to sleep. The complainant was asked to tell the police more about what the appellant did. She mentioned that he had her pants off and it felt scary. Later in the interview when asked whether she remembered what the appellant was wearing she said that he was wearing nothing. The complainant said that she was too scared to tell anyone about what had happened. She told her mother. Her mother told her not to tell anyone. She could not remember her mother speaking to the appellant about it. [5] In the complainant s pre-recorded evidence, admitted in evidence under s 21AW of the Evidence Act, the complainant affirmed the truth of what she had said in the police interview. The complainant maintained her account during a detailed cross examination. She said that the appellant had touched her hoo-hoo but that he had not done it in a bad way. She went on to explain that she meant that he had never done it before at all. The complainant agreed that when she returned to bed after 1 2 MFA v The Queen (2002) 213 CLR 606 at 614 615; SKA v The Queen (2011) 243 CLR 400 at 406 [14], 408 [21]. MFA v The Queen (2002) 213 CLR 606 at 623 624, quoting from M v The Queen (1994) 181 CLR 487 at 525.
3 going to the toilet she did not speak to the appellant. The appellant did not say anything like, it s our little secret and he did not tell her not to tell her mother. The complainant agreed that the appellant did not tell her, if you tell anyone about this, you ll be in trouble or anything like that. The complainant said that she told her mother about it in the next couple of weeks. When the complainant was asked whether the appellant running his finger up and down on the inside of her hoo-hoo hurt her, she responded that it did so only at the bottom. It did not hurt a lot and it did not make her cry. In re-examination the complainant said that she did not tell her mother straight away because she was scared that she would get in trouble. [6] The complainant s mother gave evidence that she was in a relationship with the appellant from about 2004. In the early part of 2011 they had a rocky relationship, which was on and off in the last 12 months of the relationship. The children stayed with them. The complainant was then in grade 2 at school. For a period early in April 2011 the complainant s mother stayed with a friend because she had some difficulties with the appellant and moved out. On at least one occasion during that period the children stayed with the appellant whilst she worked. On one occasion the complainant s mother and her children were all at the appellant s place in one room. The complainant s mother told the complainant that one of the younger children would sleep in the bed with the complainant s mother and the complainant could sleep in the other bed. The complainant said that she didn t want to sleep in the bed with the appellant after what had happened last time. The complainant started crying. The complainant s mother started to ask the complainant questions about what had happened last time. The complainant told her mother that when she was sleeping in bed with the appellant he was running his finger up and down her hoo-hoo, a term the complainant used for her vagina. The complainant said that this had woken her up and she asked the appellant to stop it. He asked her what he was to stop. The complainant told the appellant to stop running his finger up and down her hoo-hoo. The appellant replied, okay darling. The complainant went back to sleep. The complainant said this happened at a night when her mother was working. [7] The complainant s mother gave evidence that she raised this in a discussion at which the appellant and the complainant were present about two days afterwards. The complainant repeated what she had said to her mother. The complainant s mother said that the appellant s response was, if that is what she had said had happened, if she was 100 per cent correct then that s what had happened. The appellant did not deny the allegation. The complainant did not say anything in response to what the appellant said. [8] In cross-examination the complainant s mother agreed that she had moved out of the house she shared with the appellant in February 2011 and stayed with a friend for a while. She moved back in with the appellant at the end of March 2011 for a little while and the complainant made her disclosure in that period. The complainant s mother disagreed with defence counsel s suggestion that there were times when the children were left at home with the appellant in that period. The complainant s mother agreed that, leading up to the separation and until she moved back into the household, she wanted to move away taking the children with her. The complainant s mother disagreed with defence counsel s suggestion that the appellant objected to that because he did not want her taking the children so far away. She said that they had never had that discussion. The appellant did not ever say that she was not allowed to go with the children.
4 [9] The complainant s mother agreed that she had told police that the complainant told her that, I woke up because Daddy was running his finger up and down my hoo-hoo and that, I woke him up and asked him to stop. And he said, stop what? I said, running your finger up and down my hoo-hoo. And he said, okay darling, and went and then went to sleep. In relation to the statement I woke him up the complainant s mother agreed that this was what she told police, but she added that it was a very traumatic time and what the complainant actually said was that she had woken up to the appellant doing that. The complainant s mother said that the complainant did not say that she woke up the appellant; rather, the complainant said that she woke up to the appellant doing it. [10] The complainant s mother agreed that in the conversation when she, the complainant, and the appellant were present, the complainant accused the appellant of running his finger up and down her hoo-hoo but did not say that the appellant put it inside her hoo-hoo. It was put to the complainant s mother that the appellant replied, I don t recall it happening. But if you re 100 per cent sure, then I must have done it. The complainant s mother said that she did not recall the appellant saying that he did not recall it happening. She agreed that she had told police that the appellant had said, I don t recall it happening but if you re 100 per cent sure, then I must have done it. She agreed that this was possibly more accurate and then accepted that it is what the appellant said at the time. When it was put to the complainant s mother that the appellant had denied that it had happened, she said that the appellant had never said that he did not do it or that it wasn t him. He had never denied it. The appellant had said, without emotion in his voice, that, this might have happened or that may have happened or maybe I rolled over and accidently touched her. The complainant s mother said that the closest to any sort of denial was when the appellant said to her, Don t be silly, why would I do that? The complainant s mother agreed that she told the police that she had rung the appellant and that he denied that he had done it. In saying that she did not mean that the appellant said, no I never did that but was referring to his statement, Why would I do that, don t be silly. The complainant s mother agreed that the appellant told her that he understood if she had to go to the police about it and he did not try to talk her out of going to the police. The complainant s mother agreed that she had not told the complainant that she should not talk to people about this. [11] The friend of the complainant s mother ( B ) gave evidence that in April 2011 the complainant s mother and her children came to B s house. B spoke to the complainant in the presence of the complainant s mother. The complainant told B (who she referred to as an aunt) that, I don t like what daddy did. The complainant started crying. She said that she woke up with her pyjamas pants off and that she didn t like what the appellant did. The complainant did not give any greater detail and cried a lot. In cross examination B agreed with defence counsel s suggestion that the complainant said something along the line, I just didn t like what daddy did. When I woke up, my jammie pants were off. I just don t want it to happen again. [12] The appellant did not give or call evidence. Consideration [13] In relation to the charge of rape, the trial judge directed the jury that the prosecution must prove beyond reasonable doubt that the appellant penetrated the vagina or the vulva of the complainant to any extent. The trial judge remarked that the central
5 matter to be considered was whether the prosecution had proved that the appellant penetrated the complainant s vulva and/or vagina with his finger. If they had a reasonable doubt about that the verdict must be not guilty. This charge was based upon the complainant s evidence that the appellant had put his finger inside her. However that was not stated in the complainant s mother s evidence of what the complainant said to her, it was not stated in the complainant s mother s evidence of what the complainant said when the appellant was present, it was not stated in B s evidence of what the complainant said, and the jury might also have taken into account the complainant s evidence that what the appellant did to her did not hurt much. With that evidence in mind as well as the emphasis in the summing up of the requirement for the prosecution to prove guilt beyond reasonable doubt, the jury might have been unwilling to convict the appellant of the more serious charge even though the jury regarded the complainant as a credible witness. [14] Accordingly, the jury s acquittal on the charge of rape is not inconsistent but is readily reconcilable with the guilty verdict upon the alternative charge of indecent dealing. The appellant, who appeared for himself and adopted his written argument, did not argue to the contrary. Rather, the theme underlying the appellant s argument was that the complainant s mother in some way persuaded the complainant to complain that the appellant had touched her in a bad way. For example, the appellant attributed the complainant s statement that the appellant had touched her on the inside of her vagina, which had not earlier been mentioned, to the influence of the complainant s mother upon the evidence given by the complainant. There was, however, no evidence that the complainant s mother said or did anything in an attempt to influence the complainant s evidence in any way or that the complainant s evidence was influenced by anything her mother said or did. [15] The same is true in relation to the appellant s argument about the complainant s evidence that the appellant had not touched her in a bad way, that he had touched her, and that she meant by her statement that he had not touched her in a bad way that he had never done it before at all. The appellant argued that the complainant initially spoke the truth before she remembered what she was supposed to say. This passage of evidence raised an issue for the jury to consider, but in the absence of any evidence of an attempt to influence the complainant s evidence it is unsurprising that the jury accepted her explanation of what she meant. [16] Much of the argument advanced by the appellant was based upon what the appellant said in his written argument had happened. Because the appellant did not give evidence at the trial, this cannot be taken into account in assessing the reasonableness of the verdict. It is therefore not helpful to refer to those parts of the appellant s argument. [17] The appellant argued that he looked after the complainant as if she was his own daughter and he would not have touched her private parts intentionally. Again, in the absence of any evidence contradicting the complainant s evidence, it cannot be said that the jury acted unreasonably in convicting the appellant. [18] There was also no evidence to support another important aspect of the appellant s argument: that he and the complainant s mother had argued about the complainant s mother wanting to move away with the children and he had refused to allow it. The only evidence on this point was the evidence of the complainant s mother that this had not been a topic of discussion.
6 [19] The appellant relied upon the evidence of the complainant s mother that she told the police that the complainant had said that she woke the appellant up and asked him to stop. The trial judge referred to the evidence relating to this point in the course of summing up and it was no doubt taken into account by the jury, who had the advantage of seeing and hearing the complainant s mother giving evidence. The jury, whilst taking this point into account, could reasonably act upon the evidence of the complainant that she was asleep and awoke to the appellant dealing with her. The jury might also have considered that it was too unlikely to be true that the appellant could have been asleep when, as the complainant said, the appellant ran his finger up and down in the way she described. [20] In other respects the appellant s argument amounted to denials of the truth of evidence given by the complainant s mother or the complainant. Again, this cannot be taken into account in circumstances in which the appellant did not give evidence. [21] There was no ground of appeal challenging the summing up or any direction given by the trial judge. Nor was there any contention to that effect in the appellant s argument. The only question for the Court raised in this appeal was whether or not the verdict of the jury was unreasonable or could not be supported having regard to the evidence. The complainant s account about the indecent dealing offence was given in apparently persuasive and credible terms and it was consistent with the evidence of her complaint to her mother and (in a more limited way) her complaint to B. There were various inconsistencies in the evidence, but their individual and cumulative effects do not seem to be very significant and they were drawn to the jury s attention. Upon the whole of the evidence, and having regard to the jury s advantage of seeing and hearing all of the evidence as it was given, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted. No ground has been established which would justify the Court in setting aside the verdict. Order [22] I would order that the appeal against conviction be dismissed. [23] GOTTERSON JA: I agree with the order proposed by Fraser JA and with the reasons given by his Honour. [24] MORRISON JA: I agree with the order proposed by Fraser JA and with the reasons given by his Honour.