R v B
[2003] QCA 447
•17 October 2003
SUPREME COURT OF QUEENSLAND
CITATION:
R v B [2003] QCA 447
PARTIES:
R
v
B
(appellant)FILE NO/S:
CA No 65 of 2003
DC No 1412 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
17 October 2003
DELIVERED AT:
Brisbane
HEARING DATE:
17 June 2003
JUDGES:
McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal against conviction dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted of rape of his daughter – where appellant challenged the presumption that he knew the complainant was his daughter – where this fact was established during the trial by DNA evidence – where prosecutor attempted to demonstrate the appellant’s knowledge and acceptance of parenthood in cross-examination – where documents used to establish this knowledge not revealed during the Crown case – whether production of documents at this time led to miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – PARTICULAR OFFENCES – where appellant complains that the learned trial judge erred in law in failing to direct the jury on corroboration – where appellant’s counsel did not ask the learned trial judge to make any comment pursuant to s 632(3) Criminal Code (Qld) on the lack of corroboration – where Crown contends this case did not comprise factors to necessitate such a warning – whether absence of such a direction resulted in miscarriage of justice
Criminal Code (Qld), s 222, s 578(1), s 632, s 636
Dhanhoa v R [2003] HCA 40; S No 236 of 2002, 5 August 2003, applied
Longman v R (1989) 168 CLR 79, referred to
R v Soma (2003) 196 ALR 421, referred to
Shaw v R (1952) 85 CLR 365, considered
Simic v R (1979-1980) 144 CLR 319, citedCOUNSEL:
The appellant appeared on his own behalf
S Bain for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: I have read and agree with the reasons of Jerrard JA for dismissing the appeal against conviction.
JERRARD JA: On 28 February 2003 B was convicted of having raped M on or about 23 August 2001, and sentenced to seven years imprisonment. He was acquitted on a second count of having indecently assaulted her on the same date. He has appealed his conviction for rape.
M is B’s daughter and by reason of s 578(1) of the Criminal Code it was open to the jury considering the charge of rape on the indictment to find B guilty of the offence of incest provided for by s 222 of the Code, provided that the evidence proved sexual intercourse and both the blood relationship of father and daughter between B and M, and knowledge by him of that relationship. As to the last matter, by reason of s 636 of the Code upon proof of the blood relationship, B was presumed to have known of it until he proved the contrary on the balance of probabilities. As the trial proceeded, it became clear that B was challenging the presumption made by s 636 of knowledge of that relationsip with M. How that challenge developed, and the prosecution response to it, form an essential part of what is probably his principal ground of appeal. In the final result, no verdict was taken on that potential count of incest, once the verdict of guilty of rape was given.
Agreed matters
The following matters were common ground between B and the prosecution. B was living at all relevant times in 2001 in a suburb at the Sunshine Coast, and M was living with her mother L in a northern Brisbane suburb. L and B had met in about 1979, when each was married to another person. They had had an affair which had resulted in their “seeing each other on and off for a lot of years, actually.” as described by L.[1] They did not ever live together. When told of the pregnancy by L, B had then denied to her that he was the father of the child she was carrying. M was about 12 years old when told by her mother that B, whom she had known up to then as a family friend, was her natural father. Thereafter she called B “dad”, and he did not correct her or challenge her when she did. He described himself by the term “dad” in some of the limited written correspondence they had.
[1]At AR 66
It was also common ground that at L’s prompting, B sent M a 21st birthday card. That birthday was on 20 August 2001, and by arrangement between B and M she drove to B’s residence in her car on 23 August to visit him. She had previously visited him at least once at his residence with her mother, apparently earlier in 2001, and on that occasion she and her mother stayed over night at B’s home. L and B shared the double bed in B’s bedroom on that occasion, and M went to bed in a different bedroom.
Continuing with the matters that are common ground, on 23 August 2001 B showed his daughter around his house, they went for lunch at the local RSL (travelling there on B’s motorcycle), and M drank a number of glasses of rum and Coke. B drank less alcohol. She spent some time playing the “pokies” and keno, and they then returned to his home. Not long after arriving there, they left and went to a hotel and bought a bottle of rum. At his home she drank some of that rum with Coke, by which stage she was “very, very drunk” (her evidence at AR 29). She vomited, showered, and later that evening sexual intercourse between them occurred in his double bed. Subsequently she got out of that bed, later returned to it, and remained in it for the rest of the night. The next morning they had breakfast, he gave her her clothes which he had washed, they travelled together to premises from which he obtained a nail gun and returned to his home, and after an apparently affectionate farewell, she left.
In the following days they communicated via text messages sent by the mobile telephone network, with more messages emanating from her than from him. Those from her were at first affectionately expressed, and then contained more anxiety, and then anger; and those from him (at least two of which ended with “love dad”) were cool in tone, if not reproving.
These were exchanged in the period 23rd August to 10 September 2001. On 27th August M made a complaint to police (presumably of rape and indecent assault), and on the afternoon of 3rd September detectives executed a search warrant at his home and spoke with him. He was arrested on 11 September 2001.
M and B gave very different accounts of the circumstances leading to the sexual intercourse which occurred. Each swore that it was forced upon them by the other while they slept. On his account she was sexually predatory towards him, and her account implied the same behaviour by him towards her.
Her story
Her description of their general relationship in her evidence in chief was that when she was first told he was her father “we didn’t know how to handle the father/daughter relationship, but it became good. He became my father.” (AR 22); and that after finding out their true relationship, they had contact “every now and again”. That last description is questionable in its accuracy, if only because he was sentenced to 10 years imprisonment on 11 July 1994 for the offence of doing grievous bodily harm with intent. The sentencing judge declared 351 days of pre-sentence custody as imprisonment already served under that sentence, so it is likely that B was in prison on M’s 13th birthday on 20 August 1993; and he was only released on parole on 29 November 1999 (AR 281) after her 19th. The only meetings between them clearly disclosed in the evidence between that release on parole and their meeting on 23rd August 2001 were the occasion of his father’s funeral in March 2001, the occasion of the visit by M and L to B’s home, also in early 2001, and a visit by him to her mother’s home around the same date.
M agreed in cross-examination that she had not had much contact with her father at all “in the time leading up to March 2001”, and that his father’s funeral was the first involvement M had had with B for some time. She recalled the occasion of the overnight visit, and said that:
“Mum and I together just stopping around having a visit saying hello.” (AR 45)
and appeared to agree that overnight occasion was some two to three nights after Mr B had been to her mother’s place for dinner. She also appeared to agree with the suggestion that she and her mother had simply “turned up at his place” on that overnight occasion. M swore she had gone to sleep in the spare room, and gone to bed before the two others did, and she did not know where her mother slept that night.
She disagreed with the suggestion put to her that during that night she had joined her mother and B in the double bed, and had been naked when she got into that bed. She denied that her mother had said to B:
“Oh, she’s just showing that she loves you.”
Her answer to that suggestion was:
“No, no, no. My mother is not like that, neither am I.”
She also denied that after that incident, B had sent a message to her mother saying that he did not want to see either of them again. L also denied the same suggestions made in cross-examination about M joining B and herself in his bed, or any message being sent declining to see them again.
Regarding her visit on 23 August 2001, she agreed that on that day they hugged when she arrived. Her evidence, not challenged in this point in cross-examination, was that his card to her had said “I am not working Monday, Tuesday, Wednesday, can I see you?” which had resulted in the arrangement to visit on the 23rd. Despite his suggestion put to her that she was told some months earlier she would not be seen again, it was not suggested to her that her visit on 23 August was other than as a result of an arrangement following his invitation.
She described his showing her around the house on 23 August, and his describing the plans he had made for it, and her later having about six drinks of rum and Coke at the RSL. She said that when they returned to his home they opened a bottle of champagne “and we cheered”, and she thought they had a glass of it. They then went and got the bottle of rum, and after drinking a glass she felt “all dizzy and I threw up everywhere”. Her account of the day conveys an implication that B was somewhat plying her with alcohol.
After vomiting on both her jumper and his carpet, she described being hoisted up by her father because “I couldn’t really walk on my own”, his walking her down a hallway into the bathroom, his stripping off her clothing whilst still holding her up, and his putting her in his shower and washing “me all over and, like, he must have got in because he was washing my body all over”. She did not suggest she objected to any of that. Her evidence was that the next thing she recalled was waking up and seeing his face two centimetres away from hers. She could feel that they were both naked and that his penis, whilst not inserted in her vagina, could be felt down between her legs and:
“I don’t think he had his hearing aid in because I was saying ‘No, no, get off, no,’ and he inserted his penis into my vagina.”
The evidence and proceedings of the trial and appeal established that B has a serious hearing deficiency, and M said she often had to repeat everything she said to him, but that he could lip-read. Returning to her account of that night, she swore that when he inserted his penis her body she just froze and could not move, and intercourse occurred for about 40 seconds. She felt moist between her legs, “like he ejaculated”, and then she felt him “groping my breasts”. She pushed his hand away, rolled over as far as she could, and pretended to go to sleep. Asked if she had spoken at all with him about sexual matters when they were in the lounge room (apparently before she vomited), she replied that “He’s my father”, and “no”.
Her evidence was that about an hour or so later she woke up again, and felt B grabbing her right hand and putting it down towards his penis, and she then pulled her hand away. That act was the basis of the count of indecent assault upon which he was acquitted. She said “no, no, stop it”, got up and motioned to him that she was getting a drink, saw a dressing gown and put it on, and went into the hallway and then wiped herself between the legs with that dressing gown. She did this because she could not see any “tissues or anything”. (AR 32).
She then drank some grapefruit juice and returned to the bedroom and bed where her father was, because “I didn’t have any where else to go but back to that bed”, and lay on it as far away from him as she could. Eventually she fell asleep. In the morning she awoke with a hangover and was offered breakfast. She was still wearing the dressing gown, and while having breakfast asked him where her clothes were. He told her he had washed them, and he had. She changed from the dressing gown, they got the nail gun, he asked what she wanted for her birthday and she suggested a TV, and he said he would see “what we can do”.
As she was preparing to leave he asked when he was going to see her again. She suggested that would be some time during the week or soon, and he asked:
“Okay, well, what are you going to tell your mother?”
and she replied:
”What do you mean?”
To which he said:
“Well, you can’t tell her we got that drunk last night. We’ll just tell her we went out to dinner or something”:
and they agreed upon the account that they had gone to dinner at the RSL (AR 35).
The text messages
Her evidence was that that afternoon when she arrived home she sent a text message which read “I’ve been thinking, dad, I love you heaps. Don’t ever touch me again because I love you so much.” She received no reply, and sent another message on 25 (or 26) August which said, “Can I come see you soon love M” and got no reply. On the night of 26 August she sent a message that said “I’m losing it”; and the next day made a complaint to police. Possibly that same day she received a reply to her earlier messages, which said “I just found my phone and got your messages”.
On 31 August she received a message from her father which said “Hi blossom, let me know if you can come up today, love dad”, and on 2 September a second message reading “Hi M, when are you coming up for the TV? Love dad.” She made no reply, and on 3rd September, the date police officers visited her father, received at 5.39p.m. a message reading, “M, I don’t know what you are trying to do but remember it was not me, it was you.”; to which she replied “You’d be surprised, Doug. I skipped my period.” He in turn responded by message “is that why you came to see me today?” (She denied ever having gone to visit him on that date, but her answers in cross-examination revealed an awareness that police officers had).
At 10.31p.m. that same day she received a message saying that “M, you know it did not happen as you said. I only need to get police to check your messages to me on 25 and 26 where you said you love me and you want to come see me.”, and a further message a few minutes later that read “So please come see me before it gets out of hand.” The next day she received a message reading “M, I did not rape you and you know it so please tell the truth. If I don’t hear from you I will have police track your calls from me after 22nd,” and a request on 5 September reading “M please tell the truth and drop the charge.” On 7 September he sent a message reading “M, please tell the truth. Talk to me. This would kill mum.” That same day when picking up her niece from day care, she met (not by arrangement) B and his brother; and B said to her whilst she sat in her car:
“M, drop the charge. This – I didn’t do anything to you. Like, why are you doing this?”;
to which she responded by screaming at him. He told her he would give her what she wanted, and she said she didn’t want a thing. He said:
“I woke up and you were there”;
to which she responded:
“I am not dropping the charge. You raped me.”
After that incident she received a further message from him reading “M, want to talk to you. Please answer.” (on 7 September); and another that day reading “M, tell the truth or I will do a lot of years in gaol for no reason. Please answer.” The last message was on 10 September, which read “M, come talk to me. You can have what you want.” She had not made any reply to any message of his since advising him she had missed a period. Asked in evidence in chief if she had given him permission to place his penis into her vagina, she replied “he is blood, no,”; and asked if she consented she replied “no, never”.
The evidence in common of incapacity to consent
That was M’s evidence in chief. It revealed a good deal of both ambivalence and change in her feelings towards B expressed in those messages she sent, features of her mother’s relationship with B that might appear unusual, conduct by M before and after the sexual intercourse which might seem inconsistent with rape having occurred and more suggestive of consensual intercourse, and repeated communications from B after he was aware of her complaint to police and which communications were consistent with his account in evidence that she forced herself upon him. Nevertheless, for all that her evidence in chief provided grounds for attacking the Crown case, that evidence included that she was to his knowledge too intoxicated to stand unaided and shower herself, that she had not known in the morning where her clothes were, that he had known that night she was very drunk, and that he had volunteered next morning that they could not tell her mother what had happened that night.
The proposition that her evidence necessarily implied, namely that to his knowledge she was probably too stupefied by alcohol to be capable of giving consent to intercourse,[2] was actually also implied by questions asked of her in cross-examination (at AR 60), and which accorded with evidence that B gave in his own case (at AR 106/7). This was that when they had breakfast the next morning he had asked her if she remembered “what you did last night?” to which question B swore that she replied “shush, don’t tell anyone, it is our secret”. Although the answer necessarily implies she did have a recollection, the question conveys an expectation he held that she may have been too intoxicated during their sexual dealings to recall them. That expectation the next morning is consistent with the clear understanding the night before that sexual intercourse with her would have been with a woman incapable of giving knowing consent.
[2]Section 348 of the Code provides that “consent” to intercourse means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
B’s story
B’s account in evidence, largely consistent with what was put in cross-examination, was that he was the one who was really raped. He swore that they went to the RSL Club at her suggestion because she liked playing the machines, and this was after they had gone for ride on his motorcycle, also at her suggestion. On his description, she had surprised him at the speed with which she consumed rum and Coke, and had persistently asked him to buy more of it for her throughout the whole time they were at that RSL. She had wanted him to buy more rum when they returned to his home, and they had shared the cost of the bottle between them. After she drank some of it, they sat on a couch and she put her head on his shoulder and kissed him, and then started rubbing his leg. It was suggested to her in cross-examination that at that stage she had said “I love you” (she denied that), and soon after that she vomited. His evidence was that she undressed herself with no assistance from him and showered herself, and that when she was undressed he entered the room, removed her clothes, and gave her the dressing gown. He put her clothes in the washing machine, put a kettle on for coffee, and when she emerged from the shower room she had the dressing gown on. While waiting for the coffee she kissed him on the lips, told him “you’re cool”, and had some more rum rather than coffee. During this time on his evidence she was “just jumping around, the dressing gown was falling half open and I told her, you know, behave herself, do it up and that”.
He swore she ignored that request, exposed herself to him by deliberately opening the dressing gown wide open, tried to dance with him, and rubbed herself against him. He lost his temper with her, told her to “bloody sit down and behave herself”[3], and eventually he walked her to the spare bedroom and put her to sleep. This was after she had started crying. His evidence was that she then had that dressing gown on.
[3]His evidence about all this is at AR 103 and 104
Thereafter he described cleaning up, having a shower and going to his bed. He woke to find her “performing oral sex” (AR 105); and he just did not know what to do. While he lay on his back, she climbed up, straddled him and he could feel himself “building up and things were on their way” (AR 105), which appears to be a description by him of intercourse actually occurring. This is because it was specifically put to her in cross-examination that she had gotten on top of B “and had sex with him” (at AR 54), and further suggested that “he pushed you off”; and that at about that point he ejaculated. His evidence about that was: (at AR 105)
“Like I am only guessing but I think this is what happened, I grabbed M by each side and would have been somewhere around the top of her legs and pulled her up as I pulled me self down, and when that happened I came back out and that’s when it all went all over the place.” (Presumably his ejaculation).
He described her leaving the bed, perhaps to go the toilet, and returning to it and his then snuggling into the back of her. They then went to sleep. On his account when she got into bed the second time she was naked, but she had been wearing the dressing gown when he first woke to find her performing fellatio. That proposition, that she was wearing the dressing gown then, was different from what was suggested in cross-examination to her, namely that she had been naked at the time she first went into his bedroom.
He swore and she denied in cross-examination that later that night they both awoke and each performed “oral sex” upon the other (AR 106), in “the 69 position”. When she was asked in cross-examination why she returned to his bed as she described, she said she did so because there was no single room with the bed made up and “they all had shit everywhere”; and in response to the suggestion that she had both consented to sexual actual activity and initiated it she replied:
“What female would to her father? God. No. You make me sick.”
On the other hand B’s account was that:
“I say I am the victim, not M.”
These were very different versions of who instigated the intercourse. B’s evidence included a description of how M had visited his home on 3 September at 1.30p.m. before the police arrived (at 2.09p.m.), and although he saw her and heard her knock on the front door, he “just made out that I wasn’t home”. (AR 110) His evidence did not really explain why.
The grounds of appeal
The jury who heard all the evidence, convicted B. He has four grounds of appeal against that conviction. The first is that he was ambushed by late evidence brought in by the prosecution, and the second that the learned trial judge failed to warn the jury, or explain in any way, about corroboration. The third is that the Crown Prosecutor made a misstatement of fact of crucial evidence in his final address to the jury, which misled that jury on a matter vital for the Crown in securing a conviction. The fourth ground of appeal was that he had not received a fair trial, because the computer read out system (transcribing the evidence in real time) made available to him (because of his hearing disability) was faulty, and this did not allow him to see at all times whether his own counsel was putting matters appropriately before the jury.
The ambush argument
Turing to the first ground of appeal, it derives from the manner in which B challenged the presumption that he knew M was his daughter. That she was, was established as an unchallenged fact during the trial by scientific evidence of DNA analysis. M had not been challenged in cross-examination on her description that a good father/daughter relationship had developed, in which she called him “dad”. When L gave evidence, she agreed that B had originally denied being the father when told of the pregnancy. That was as far as the cross-examination went in suggesting that B challenged parenthood. It was not put to L that B had made any challenge to that fact after M was told, when aged 12, that he was her father. Indeed, L’s evidence in cross-examination was that: (at AR 66)
“once I told her that he was her father – I mean, she was keen to get to know him and he used to come and visit. He always knew where I was living, he used to come and visit even before she knew that he was her father.” (I note that visits by him could hardly have occurred when B was in prison).
However, after L had left the witness box and in response to a question from the learned trial judge about whether paternity was in dispute, B’s counsel advised that as a scientific fact it was not, but that “my client’s state of knowledge about it is in dispute, as you have heard me put to the last witness and she accepted that he denied paternity originally”. The learned trial judge pressed further, and established that paternity was in dispute.
B’s evidence in chief was that when told of L’s pregnancy and the birth of M, he had told L “I didn’t believe I was the father” (AR 98); and that while he knew that M regarded him as her father (and that L had told M that he was), he had “just went along with it, I have never believed it over all the years, but in all honesty I guess I thought about it and wondered at times.” (At AR 98).
That evidence, of apparent public acceptance of being M’s father while privately disbelieving, was repeated in evidence in chief (at AR 106), and led to the Crown Prosecutor attempting in cross-examination to establish that B had in fact actually believed he was M’s father. It was put that M had called him “dad” from the age of 11 or 12 (at AR 113), and B replied that he didn’t “really know” about that; and then put that he had played the role of her father. B replied that “I’ve never played the role of father between M and me”. He agreed that he had never told M that he was not.
The prosecutor then apparently set about establishing conduct by B consistent with belief in parenthood. He extracted the agreement in cross-examination that the 21st birthday card had been signed “dad” (AR 116), which B said he had done, because “maybe I am too soft”. The prosecutor suggested this was because he knew deep down she was his daughter, and B repeated that he had never believed it but often wondered. This led to cross-examination about why she had been invited to come up and see him after her 21st birthday, to B’s responded that (although evidence from M of his invitation to her had been unchallenged in cross-examination) he was not sure if he had actually invited her to come. He agreed that he would “probably have to go along with” the proposition that he knew she was coming up to celebrate her 21st birthday because she believed he was her father.
After an overnight adjournment the prosecutor returned to the attack, in which he attempted to demonstrate knowledge and acceptance of parenthood. When B said that that 21st birthday card was the only card he could recall having sent M, it was put that he had told his own parents she was his daughter. B said he had told his parents she could be (AR 124). It was put that he had sent her a 13th birthday card signed “lots of love, dad”, and he agreed he could have. He was then shown a card, (apparently for her 13th birthday) and he identified his writing, and agreed that he had written on it “lots of love, dad”.
The cross-examination continued along that line, with the cross-examiner presenting other birthday cards also signed “lots of love dad”, and some Christmas cards. The thrust of B’s answers continued to be that he had been told she was his daughter, and that he simply went along with it. Letters were read to him which he had written to her and in which he had referred to her as “dad’s girl”, and his answers continued to the same effect, adding that occasionally he wrote in such terms because L had asked him to. The few letters quoted in cross-examination did express unambiguous feelings of apparent love for his acknowledged daughter and regret for what he described the “past lost years”, and he explained those expressions by saying:
“I’m writing these letters because I’m way up north working….you get bored so you write letters.”
That answer apparently referred to his time in prison, which by agreement between counsel was not disclosed to the jury; and the answers and evidence of B, M, and L by that agreement were careful not to disclose where Mr B had really been.
At the end of the day the proposition from the prosecution was that there were some 12 items of correspondence addressed to M over the years, being eight letters and four cards (AR 169-170) expressing love from him for M and apparent acceptance of fatherhood. At no stage did the Crown succeed in moving him from his repeatedly expressed position that he was uncertain of parenthood but willing to go along with what M had been told, rather than hurt her.
The complaint about being ambushed is that some of those documents were put to him in cross-examination as described, and were otherwise referred to in cross-examination by the prosecutor, when their existence had not been revealed during the Crown case. Because of that B had incorrectly described that 21st birthday card as the only one he sent M, and also inaccurately sworn that he had never celebrated her birthday (that was said at AR 98). He complains on the appeal that his credit was unfairly damaged before the jury by his being contradicted by those other cards and letters, which ought to have been introduced during the prosecution case rather than in cross-examination.
Those letters and cards were admissible on the alternative count of incest open to the jury, being relevant to proof of B’s knowledge and acceptance of the fact of paternity of his daughter. It seems likely they were garnered by the prosecution during the overnight adjournment occurring after B’s cross-examination commenced, and would not have been available to the Crown at the start of this case. It is obvious from what occurred that they could have been obtained, and could have been tendered during M’s evidence.
In R v Soma (2003) 196 ALR 421 the joint reasons for judgment of Gleeson CJ, Gummow, Kirby, and Hayne JJ reaffirm[4] the general principle, described as one of long standing, that the prosecution must offer all its proof before an accused person is called upon to his or her defence. Those joint reasons in Soma made particular reference to the joint reasons in Shaw v R[5]. The joint reasons in Shaw make two important observations (at CLR 379), in the following passage referred to by McHugh J in Soma at [64]. That passage in Shaw holds:
“Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity…But the prosecution may not split its case on any issue”.
[4]At [28] and [36]
[5](1952) 85 CLR 365 at 380
As things fell out, the course of the trial did not provide B with legitimate grounds for complaint of a miscarriage of justice by reason of the non-production of those cards and letters earlier in the trial. The prosecution led the evidence described herein from M about her relationship with B, which included evidence of his use of the term “dad” in some of those text messages from him after 23 August 2001. That evidence would have justified the inference of his knowing acceptance of fatherhood, and no challenge was made during her cross-examination to those facts or the proposition that they supported that inference. That knowledge of parenthood was put in issue emerged only after L had been cross-examined on 25 February 2003, and emerged with clarity only during B’s own evidence in chief that same day.
His evidence, which challenged the presumption provided by s 636 of the Code, was a matter on which he bore the onus of proof, and cross-examination on those cards and letters was the prosecution’s legitimate response made at the appropriate time to his evidence on that issue. If one ignores entirely the fact that he bore that onus, and focuses only on the fact that the Crown might by extra industry have obtained and put in those cards in its own case, that would have appeared a somewhat unnecessary exercise when the evidence already available was apparently sufficient to establish independently of s 636 the rebuttable presumption of fact that section also provided. Since B did in fact carry the onus, the Crown was entitled to reply in the manner it did to B’s evidence. The position is no different from that applying when a person accused of murder raises a defence of diminished responsibility, proof of which rests on such an accused, and in which situation the Crown is permitted to call medical evidence in rebuttal of that defence.[6]
[6]See R v Files [1983] 2 Qd R 153 at 154 (Campbell CJ and Kelly J), and at 158 – 159 (Shepherdson J)
Had those cards and letters been tendered in evidence, or their contents referred to, during the Crown case, B undoubtedly would not have denied sending them in his evidence, but presumably would still have said he had always wondered if he was really was her father, he had not wanted to hurt her, and he had written to her in the terms he did because he was lonely. If the evidence had fallen out that way, there would still have been an issue of credit as to whether the existence of such now asserted doubts should be accepted; but the circumstances would have favoured B a little more. What B lost by what occurred was the opportunity to avoid making a denial, false in fact, of having sent other cards and letters, when it is difficult to believe that he had forgotten he had done so. Although his credit on the potential incest count did suffer by reason of his being exposed as one who might be opportunistically untruthful, that really could have but minimal effect on the charge of rape. M was adamant in her evidence that she had not consented to intercourse and would not because B was her father; and his expressed doubts about that last matter could not affect her clear understanding that he was. The jury may well both have accepted that his doubts were genuine, and also noticed that he had tried to support their existence by statements that were not truthful. Giving that evidence denying sending such letters and cards was a choice he made, and the injury to his credit done by disproof of his denial was not itself an error or an unfair consequence of an error in the trial process. That ground of appeal fails.
Failure to warn about corroboration
B’s argument on this ground can be understood as a complaint that the learned judge erred in law in failing to direct the jury that M’s evidence that intercourse took place without her consent was uncorroborated. B was represented by counsel at the trial and no request for any such direction was made. Had such a request been made the provisions of s 632 of the Code would have been relevant. They provide:
“(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”
The fact that the appellant’s counsel did not ask the learned trial judge to make any comment pursuant to s 632(3) on the lack of corroboration of the complainant’s evidence means that this appeal answers the description given in the joint judgment of McHugh and Gummow JJ in Dhanhoa v R [2003] HCA 40 at [37] and [38] wherein their Honours wrote:
“[37] This is another appeal in which a convicted person seeks to quash a conviction on the ground that the trial judge failed to direct the jury concerning some part of the evidence in the trial even though his or her counsel did not apply for any such direction or indeed any re-direction.
[38] When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict...”[7]
[7]Citing from Simic v R (1979-1980) 144 CLR 319 at 331-332
Applying those principles, B fails to demonstrate that any such direction should have been given. As counsel for the Crown submitted, the case had none of the usual factors present which might call for a warning. It was not, for example, a case calling for a “Longman” direction.[8] The learned trial judge had informed the parties at the commencement of the trial that he would direct the jury that there had been no fresh complaint in the case[9], and he did so direct the jury (at AR 238-9). Those directions included that as a matter of law there was no fresh or recent complaint, that the jury might think a failure to complain when M lived with her mother was unreasonable, and that this might cause them to entertain reservations about her reliability. The learned judge gave the jury extensive directions concerning the assessment of witness; the issue and nature of consent, and the necessity for the prosecution to establish its absence beyond reasonable doubt (at AR 224-231); and on the need for disproof of an honest but mistaken belief as to consent (AR 232-233 and 240-241). In those circumstances it is not shown that it is reasonably possible that failure to direct the jury concerning an absence of corroboration may have affected the verdict.
[8]Longman v R (1989) 168 CLR 79; and see Crampton v R (2000) 176 ALR 369 at [45], and Doggett v R (2001) 182 ALR 1 at [45]-[54] and [115]-[142]
[9]At AR 5 and 6
The prosecutor’s misstatement offact
B is correct in his complaint that the Crown Prosecutor misstated an important fact to the jury in his final address, but his complaint ignores that the learned judge corrected that misstatement. The misstatement concerned the effect of the evidence given by a scientist called to describe the results of a laboratory analysis of a dressing grown seized from B’s premises on 3 September 2001, and which M swore resembled the one she put on after the act of intercourse, and with which she said she had wiped herself between her legs. That analysis demonstrated the presence of semen on four separate areas of the inside back panel of that dressing gown. Spermatozoa was present and on two of those areas of semen staining the DNA analysis demonstrated a mixture of DNA profiles in that semen, that mixture being about 990 million times more likely to have come from B and M as opposed to B and one person chosen at random from the Queensland Caucasian population (AR 77). The expert’s opinion evidence was that the cells present from that person other than B could have been any type of cells from the body, being possibly either skin cells, or saliva cells, nasal secretion, or vaginal secretion (at AR 83). The staining was described by the analyst as being consistent with M having had intercourse with B, having then worn that dressing gown, and having sat down and had material leak from her. It also seems consistent with her evidence of wiping herself.
The misstatement made by the prosecutor was to describe the expert evidence as being that those stains contained M’s vaginal cells and B’s spermatozoa, which the prosecutor submitted was “exactly” consistent with her evidence, rather than his (at AR 203). The prosecutor reminded the jury that B had been “at pains to tell us” that he had not ejaculated inside M, and the prosecutor submitted to them that the dressing gown was a “forensic fingerprint” (AR 203) in the case demonstrating whether M was telling the truth or not.
The weakness in those arguments was that the witness had not said the cells were necessarily vaginal, although the evidence certainly supported that as an obvious possibility. The learned judge corrected that error in re-directions (at AR 251) and that correction would have robbed the submission of any false force that it had. There remained a valid argument that that evidence was more consistent with M’s narrative than with B’s; although wiping herself with a dressing gown could equally occur after consensual intercourse.
Faults in the computer read out system
Whether that evidence was inconsistent with B’s is relevant to his final ground of appeal. B complains in this last ground of delays in receipt on the screen of the print out of the trial transcript which was to be immediately available to him, such that the delay hindered his capacity to observe that his defence was not being placed accurately before the court by his counsel.
The appeal record does demonstrate that on at least one topic his counsel put a matter inaccurately to the court. That inaccuracy was corrected by agreement between counsel for B and the Crown Prosecutor, and did not result in any disadvantage to B. It seems to have occurred quite independently of any difficulty in the immediate production of real time transcript on a screen for B. The appeal record shows that there were occasional “glitches”, and that the presiding judge intervened to ensure at those points that all proceedings were halted until B could read an available transcript. One such occasion occurred during his arraignment (AR 8), and another during the opening of the defence case (AR 93).
Examples of human error causing confusion in apparently immediately available transcription did occur. One is at AR 147, where the prosecutor had asked “you gave her no admonition at all?” during cross-examination of B, who protested that he did not understand the “last bit”, which as transcribed asked “you gave her no add up in addition to it all?” That misunderstanding by the transcribers was immediately corrected, and it actually demonstrates generally how promptly and efficiently the system was otherwise working. B was recorded in cross-examination, when asked by the prosecutor “everything that has been said in court, you have been following by looking at the screen, is that correct?”, as answering:
“Yes, that is correct. Part of it. I haven’t been able to keep up with everything”.
An example of what was occurring in practice is at AR 120, where the prosecutor was promoted by the trial judge to continue questioning, and replied that:
“I am just waiting for it to come up”,
implying that he was waiting for the answer to be transcribed and appear on the screen before asking the next question. Another is at AR 123 where the prosecutor was pressing B in cross-examination as to whether he recalled M giving certain evidence in chief, and B said:
“I’d better read that again”.
apparently referring to the transcript of the question then being asked of him.
It appears that all present soon became familiar with the process of reading a transcript, rather than following the usual procedure. At AR 137 the prosecutor, when pressing a point and quoting what B himself had just said in evidence, said “I’ll read it back to you, B”, and then re-read his own question. The record also records B on one occasion telling the prosecutor “don’t yell”, and that “I can hear you then”. (AR 117).
The appeal record does not support the proposition that transcription difficulties or delays caused B particular difficulties in communicating his case to his counsel, or his counsel putting what were B’s actual instructions. The admitted occasion on which that occurred concerned the issue of whether M had had any champagne in B’s home that night. Her evidence in chief was that she thought she had, and in cross-examination B agreed that he knew she said she had had champagne at his premises (AR 144). B was then being cross-examined about his evidence in chief that the bottle of champagne had not even been opened; and it was put to him that that evidence was a recent invention by him. It was also put to him that his own barrister had told the jury when opening the defence case that “they had a glass of champagne” (which was said at AR 95), which statement B could not recall.
The prosecutor corrected what was agreed by counsel to be an error by B’s counsel at AR 169, at the conclusion of B’s cross-examination. Counsel for the Crown told B in the jury’s presence that he had spoken with defence counsel, and it was not B’s “mistake at all”, it was a mistake by defence counsel, and that the prosecution was withdrawing any imputation that B had made up any evidence about champagne.
B’s submissions on appeal relied on that admitted misunderstanding by his own counsel in support of a submission that there had been a further misunderstanding, which concerned the dressing gown which at two places had deposits of his spermatozoa mixed with M’s cells. He contended that although his counsel had both put to M that she had been naked when she first got into B’s bed that night, and had as well opened that account to the jury, the true position was that when she got into bed with him for the first time she was actually wearing that dressing gown. The Crown Prosecutor suggested in cross-examination of B that that account was also a recent invention intended to offer a late possible explanation for the deposits on the dressing gown. B ascribed the problem to his counsel’s misunderstanding.
It appears significant that there was no concession from the Crown Prosecutor that he and counsel for B had agreed that that particular item of cross-examination and evidence opened had been the result of any misunderstanding of B’s instructions. B’s counsel did not complain to the trial judge that the prosecutor ought to have made any such concession in addition to the concession actually made. Further, when B argued his case on appeal, he offered to read to the court his original instructions which he said he had with him about champagne, but made no similar offer about publishing his instructions on the dressing gown.
That was the only example advanced by B in his argument of any disadvantage caused to him by reason of his being unable to hear what was going on, as opposed to his reading a transcript of it. Even if counsel did misunderstand B’s instructions about the dressing gown, it would still be a matter for the jury whether they believed that M was naked, as she said, when she awoke to find intercourse occurring, or clothed (as B says) in the dressing gown when she initiated the intercourse. The latter situation would still provide a far less adequate explanation for what was revealed by the scientific analysis than does M B’s evidence, of her having wiped herself after intercourse with that gown, and having worn it when sitting down.
In my opinion none of the grounds of appeal have merit and the appeal against conviction should be dismissed. There was no application for leave to appeal against sentence.
FRYBERG J: The rules of procedure do not exist to enable accused persons (or anyone else) to give false evidence in safety. As Jerrard JA demonstrates in his reasons for judgment, the appellant’s trial was not affected by procedural unfairness; nor have the other grounds of appeal been made out. For the reasons given by his Honour, the appeal should be dismissed.
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