Jarvis & Surfside Bus Lines Pty Ltd v Scrase
[1999] QCA 441
•12/03/1999
SUPREME COURT OF QUEENSLAND
CITATION: R v D [1999] QCA 441 PARTIES: R v D FILE NO/S: CA No 227 of 1999
Indictment No 97A of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING District Court at Gladstone COURT: DELIVERED ON: 29 October 1999 DELIVERED AT: Brisbane HEARING DATE: 13 September 1999 JUDGES: Pincus JA, McPherson JA, Ambrose J ORDER: Appeal against conviction dismissed CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – conviction on counts of indecent dealing and attempted rape – whether verdicts unsafe or unsatisfactory – effect of discrepancies in complainant's account of when alleged offences committed – whether open to jury to conclude that improprieties committed by appellant and not by complainant
CRIMINAL LAW – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CORROBORATION – interval of up to twenty years between alleged offences and proceedings – whether Longman direction warranted – corroborative effect of admissions
E CA No 370 of 1998, 5 March 1999; [1999] QCA 58
Longman (1989) 168 CLR 79
M [1997] 1 Qd R 404; [1996] QCA 230
Sakail [1993] 1 Qd R 312
Robinson (1999) 73 ALJR 1314; [1999] HCA 42
SOLICITORS: Dearden Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the
respondent
PINCUS JA: The appellant was convicted of sexual offences alleged to have been committed on the complainant who was aged between 8 and 15 years at the time of the offences charged. The notice of appeal contained one ground only, that the verdicts were unsafe and unsatisfactory, but at the hearing the appellant was given leave to add the following ground:
"The learned trial judge failed to adequately warn the jury of the danger of convicting having regard to the complainant's lengthy delay in making a complaint".
It is necessary to deal with the complaint that the verdict was unsafe, but the subject should be introduced by saying that there was, to an unusual degree, evidence apart from that of the complainant, suggesting that she was sexually abused by the appellant. That evidence consisted principally in a tape-recording of a telephone conversation between the complainant and the appellant, during which he admitted having molested her as a child and expressed regret for having done so.
There were seven counts, each alleged to have been committed within a specified period, the earliest date mentioned being 10 October 1979 and the latest 1 November 1986. Five of the counts alleged unlawful and indecent dealing and two of them attempted rape.
Counts 1, 2 and 3
The principal argument put by Mr Rafter, who appeared for the appellant, on the question of lack of safety of the verdicts, had to do with counts 1, 2 and 3 which were allegations of indecent dealing. The weakness on which the argument fastened was that there was evidence on the basis of which it appeared, so it was said, that the appellant was not present in the household of which the complainant was a member at the relevant times. The complainant was born on 11 October 1971 and she said that the incidents constituting counts 1 and 2 occurred just after her eighth birthday. Her evidence was to the effect that she first met the appellant in 1979, when she was living with her mother and two brothers at a house in Gladstone. The complainant said that the appellant was dating her mother and that was how she came to meet him. The incidents constituting counts 1 and 2, according to the complainant, happened after her 8th birthday, when her mother had gone to Brisbane for medical examination and she was left, with her brothers, in the appellant's care. If the events constituting counts 1 and 2 occurred on any date, it was not a date (so the argument ran) when the complainant's mother went to Brisbane for medical examination; it was admitted that the complainant's mother visited a Brisbane hospital in February 1980 and other evidence suggested that the appellant did not move in with the complainant's mother, in a de facto relationship, until June 1980. In this connection, the appellant relied upon evidence from the complainant's mother, but that was equivocal. Stronger support for the defence came from an admission made that in 1988 the complainant's mother told a solicitor that she had commenced a de facto relationship with the appellant in June 1980. The appellant's evidence was that he moved in with the complainant's mother in June or July 1980; he said that was his "best recollection".
The complainant was, on her evidence, just 8 years of age when these events were alleged to have occurred and she could, of course, have wrongly identified the relevant occasion. But a more likely explanation for the discrepancy, if the complainant's story is true, appears to be that the appellant looked after the complainant and her brothers, on the occasion in question, some time before moving into the complainant's mother's house on a permanent basis. I notice that the complainant's mother's evidence was to the effect that she met the appellant about September 1979 and towards the beginning of 1980, "sort of developed more of an intimate relationship". That there was some confusion in the complainant's evidence about this point seems likely, for she estimated that the complainant's mother and the appellant began to live together about mid-1979, which seems quite unlikely.
There was also evidence as to dates of hospitalisation of the appellant argued to be material to this issue; it does not appear to me that it throws much light on the subject. The essential point relied on by the appellant is that if the complainant's identification of the occasion on which counts 1 and 2 allegedly occurred is correct, and if one should read her evidence as dependent on the proposition that at that time the appellant and the complainant's mother were living in a de facto relationship then there is evidence on which the jury could or should have concluded that the de facto relationship began too late to permit of acceptance of the complainant's evidence.
Mr Rafter argued that the point just mentioned also infected the Crown case relating to count 3, alleged to have occurred some months later. It does not appear to me, having read the relevant evidence, that the complainant fixed the date of count 3 precisely enough to give any substance to the suggestion that it must have occurred before the appellant began to live with the complainant's mother.
Counts 4 and 5
These were counts of attempted rape and the complainant's version of events received some support from the complainant's brother, who was 14 to 15 years of age at the relevant time. The complainant's story was that the appellant removed her shorts and underpants and twice tried unsuccessfully to penetrate her. She said that the second attempt occurred in her bedroom and that when footsteps were heard, the appellant began to leave. A short time later her brother K appeared. The evidence from K is not quite reconcilable with this. He said that he arrived home to see the appellant coming naked from the complainant's room, at which time her door slammed, he tried to open the door but she screamed at him to get away.
As to the remaining counts, various factual arguments were put, as recorded in the judge's directions to the jury, but none of them is, in my opinion, of sufficient substance to require analysis here.
Mr Rafter also drew attention to the fact that the complainant asserted that she had told one R, during the years when the two were at school together, that the appellant had attempted to have sexual intercourse with her. R gave evidence to the contrary.
The result is, in my view, that the Crown had significant difficulty with respect to the occasion on which counts 1 and 2 were said to have occurred; but the complainant's evidence did not stand alone. There was evidence from her mother of a conversation she had with the appellant which implied that he had misconducted himself in relation to the complainant. The appellant gave evidence denying that and denying all the offences. His evidence was to the effect that he was, to put it simply, the subject of unwanted sexual attention from the complainant. That there was some kind of improper conduct between the appellant and the complainant could hardly have been denied, in view of the telephone conversation mentioned above. The central problem for the jury was whether the improprieties were committed by the appellant or the complainant; the question was, in short, who was the perpetrator and who was the victim? It is difficult to reconcile the content of the telephone conversation (discussed further below) with the appellant's account of what occurred; any doubt which might have been raised in the jury's minds with respect to, in particular, counts 1 and 2 could properly have been resolved by the jury in favour of the Crown, if it rejected the appellant's attempts to explain the content of the telephone conversation. That it was entitled to attach no credence to those attempts is clear enough.
In my opinion it was well open to the jury to convict on all counts.
Longman
The ground added by amendment, set out above, raises a more substantial issue. That is the application, to the evidence in this case, of the doctrine for which Longman (1989) 168 CLR 79 is the leading authority. That decision has been recently applied by the High Court in holding that a summing-up given in a similar case - one in which sexual abuse of a young child was charged - was so defective as to require guilty verdicts to be set aside: Robinson (1999) 73 ALJR 1314; [1999] HCA 42.
Longman is authority for at least two propositions: first, that s 36BE(1) of the Evidence Act 1906 (WA) does not affect a requirement to give a warning, by way of direction to a criminal jury, when such a warning is necessary "by reason of the whole of the circumstances of the case": 86, 90; secondly, it is authority for the proposition that where, in such a case as this, there is long delay in making a complaint, the jury must be directed that it would be "dangerous to convict on that evidence alone" (91), and to give an explanation of the reason for that direction. But it is arguable that Longman goes further than the second proposition just stated and requires a warning against acceptance of the complainant's evidence, in such a case, whether or not and no matter how strongly that evidence is corroborated; the discussion at p 91 could support that third proposition.
In Robinson (above) there was a delay of 3 years between the alleged offences and complaint about them. It was decided that s 632 of the Queensland Criminal Code does not affect the requirement laid down in what I have identified as the first rule deriving from Longman (paras 19, 20). The High Court held that the circumstances of Robinson's case were such as to fall within that rule and those circumstances were listed, but not exhaustively (para 25): age of the complainant at the time of the offences; long period before complaint; inconsistency as to whether penetration occurred; absence of any conversation between the complainant and appellant about the appellant's conduct; no suggestion of any earlier or later misconduct by the appellant towards the complainant; some features of the history of complaint might have indicated a degree of suggestibility on the complainant's part; and the absence of corroboration.
It is to be noted that the 3 year delay was not in itself regarded as sufficient to require a special warning against too ready acceptance of the complainant's story; it was merely one of a collection of circumstances which the High Court held to be enough in total to require such a warning. An important difference between Robinson and the present is that here the delay in question was considerably longer.
We were referred to two decisions of this Court in which the scope of the Longman doctrine was discussed. It appears to be enough for present purposes to deal with the second, E (CA No 370 of 1998, 5 March 1999; [1999] QCA 58); the earlier decision, Aristidis, was mentioned there:
"The fact that there is some evidence supportive of the complainant . . . does not necessarily deprive the appellant of the right to a sufficiently strong direction about the possible consequences of delay (R v Aristidis [1998] QCA 422; [1999] 2 QdR 629). In such a case whether such a direction is necessary will depend on an individual assessment of the issues in the case". (para 28)
In E, where the offences were alleged to have been committed about 19 years before the trial, the Court decided that the case was one in which the jury should have been told:
" . . . that it would be dangerous to convict on the evidence of the complainant unless the jury scrutinised the evidence with great care, considering the circumstances relevant to its evaluation (including the defence evidence) and paying heed to the warning were satisfied of its truth and accuracy . . . ". (para 33)
It is my opinion that the proposition that the necessity for a Longman direction may depend on all the circumstances of the case, particularly where the complainant is corroborated, is at least not inconsistent with the way in which Robinson's case was disposed of in the High Court, as mentioned above. It would appear that where the alleged offences were committed a very long time ago and the complainant is not corroborated, a Longman direction is very likely to be essential; but this is not such a case.
Here, in the context of discussion of failure by the complainant to make fresh complaint the judge told the jury to "scrutinise her evidence very carefully". That was only part of what was said in Longman to be the direction which should have been given in that case:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy". (91)
What marks the present case out from the general run of prosecutions of this sort is the fact that there were admissions of misconduct made, of a kind likely to convince any jury of the appellant's guilt. In the transcript of the phone conversation mentioned above one finds the following passages:
"No, it has and I've just had a really hard time sort of coping with
things that did happen when I was younger?-- Oh, right.
And um, I just need to know why, D, to be honest? Why did it happen?
why did you choose me?-- Oh, K, I really didn't, did I? It was a
terrible - one of those situations.
It's just sort of - it's wrecked my life. You know, it's just made me a bit
of a mess. Especially when I saw you at the airport [indistinct]?--
What airport?"
. . .
Why did it happen?-- I don't know. I really don't know. It shouldn't
have but it did.
Are you sorry for it or-----?-- Yes, of course I am.
Because you molested me, you know that?-- Um-----
What?-- I heard you. I heard you.
[Indistinct]. It has made me a bit stuffed in the head for so many years,
that's all?-- Mmm.
I just wanted to know why?-- I don't have a reason. Um, I don't know
what you expect me to say, K.
I suppose you're at work, you can't really talk anyway but I just - it's
just - I don't know, that's been bugging me for years, just to know why -
why it happened to me and I was an eight year old child?-- Um-----
[Indistinct] I know years ago you told mum it started as a joke - a bad
joke or something like that, you told mum?-- No. I never really told
your mum. Um - mmm."
. . .
"I just thought it might get me out of my misery a bit if I knew why?--
Um, it's a - it's a terrible - terrible hard question to answer. I mean, I
don't know how to answer it. I regret it as much as you do. I do."
. . .
"I've got to ask, [indistinct] got children?-- Ah, yes.
And this isn't happening to them, is it?-- No. No, it's not, K. I'm
surprised you asked that. I really am.
Are you? What I've got to ask because it's made me [indistinct]?--
Mmm. No, it's happening to no one else. It won't happen to anyone
else. I - the situation that developed between you and me was unreal.
It should never have happened.
Well, you're sorry for molesting me as a child?-- If that's what you
want to hear, K, yes.
Well you're not sorry or you are sorry?-- Yes, of course I am. I'm
sorry the whole thing happened. I really am. Okay?
[indistinct] the phone?-- Well I am. I wish to goodness it had never
happened, it wasn't a part of my life but it's happened, there's nothing I
can do about it, K".The corroborative effect of admissions was discussed in Sakail [1993] 1 Qd R 312 and in M [1997] 1 Qd R 404; [1996] QCA 230. Those cases make it clear, a proposition which one would hardly have doubted, that an admission not specifically related to the occasions charged can be corroborative. Here, the appellant had to deal with what appeared on the face of it to be admissions of serious misconduct with respect to the complainant. He said nothing which a jury unaffected by credulity would regard as an adequate answer. The explanations for these apparent admissions were of an unconvincing character. Taxed with the telephone conversation, the appellant said the "young - well, a woman was upset". He denied that he was in that conversation agreeing with the complainant and said "[t]he telephone call was very confusing". It does not appear to me that expressions used by the complainant in the course of the conversation, "you molested me" and "you're sorry for molesting me as a child?" induced any confusion, nor did the appellant's statements "I regret it as much as you do", "It should never have happened", "I'm sorry the whole thing happened. I really am", ". . . it's happened, there's nothing I can do about it" suggest that the speaker had any difficulty in understanding to what conduct the complainant was referring.
In these circumstances, it is my opinion that a Longman direction would not have been appropriate. To suggest to the jury that, despite the strong support given to the complainant by the admissions to which I have referred, it would be dangerous to convict would have seemed to them, rightly, unconvincing. It is my view, also, that this Court is entitled to take into account that the appellant was represented by a senior counsel of very long experience, who did not make any such complaint as is presently put forward, when the trial judge had concluded his directions.
I would dismiss the appeal against conviction.
McPHERSON JA: I agree with what Pincus JA has written in reaching the conclusion that this appeal should be dismissed.
The particular and, it is said, fatal omission in the summing up is the failure of the learned trial judge to direct the jury that, after the passage of so long a time, the evidence of the complainant at the trial could not be adequately tested by the appellant: see Longman v The Queen (1989) 168 CLR 79, 91. But the reason for that requirement was explained by their Honours in the passage immediately preceding the statement of the requirement. It was that:
"Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years, that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay."
If in this case one thing is clear from the statements in the telephone conversation between the complainant and the appellant in 1998, it is that the appellant recollected the event or events (which were alleged to have taken place between 1979 and 1986) about which she was complaining. He made no suggestion in the course of the telephone conversation that he was unable to do so. That being so, it would have been a completely mechanical application of the requirement stated in Longman, as well as potentially confusing to the jury, for the trial judge to have directed them to bear in mind that the appellant's recollection in 1998 of those events was, after so long a delay, now incapable of being "tested" or independently verified.
In my opinion, the appellant has no justifiable cause for complaint about the
summing up.
The appeal should be dismissed.
AMBROSE J: I agree with the reasons for judgment of Pincus JA and with the order which he proposes.
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