R v C

[1995] QCA 404

IN THE COURT OF APPEAL [1995] QCA 404

SUPREME COURT OF QUEENSLAND

C.A. No. 41 of 1995

Brisbane

Before	Macrossan CJ Pincus JA Byrne J
[R v. C]

THE QUEEN

v.

C

Appellant

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Macrossan C.J.
Pincus J.A.
Byrne J.

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Judgment delivered 01/09/1995
Joint reasons for judgment of Pincus J.A. and Byrne J.;
separate concurring reasons of Macrossan C.J.

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS: CRIMINAL LAW - conviction - circumstantial
evidence - "guilty passion" - whether capable
of corroborating complainant - trial judge’s
directions.
McKay [1986] 1 Qd.R. 476
M (C.A. No. 121 of 1993, 14 February 1994,
unreported)

Kerim [1988] 1 Qd.R. 426

Counsel:	Mr T Carmody for the appellant. Mr A Rafter for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date: 24 March 1995.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 01/09/1995

I agree with the conclusions expressed by Pincus J.A. and Byrne J. in their reasons and subject to any qualification which might be thought to result from the observations which follow, I agree with the reasons as stated. The relevant circumstances sufficiently appear in those reasons.

The narrow ground stated in the Notice of Appeal is that the trial judge was wrong in directing the jury that the evidence referred to and contained in Exhibit 5 was capable of corroborating the complainant. However, at the trial the relevance of the evidence in question was not contested and its admission was not objected to. It has to be said that the trial then proceeded on the basis that the evidence could be viewed as supporting the likelihood of the commission of the offences against the child. The reasoning appears to have been accepted that the evidence contained indications of the existence of a sexual interest entertained by the appellant for the complainant, indications which would have become more obvious after his desire to conceal them emerged.
In the trial no application was made to exclude the evidence on any discretionary ground.

If the evidence was admissible as being relevant to proof of the central matters in issue in the Crown case and this was not disputed, it would have to follow that it should be regarded as capable of being corroborative. Accordingly the ground taken fails. It could be added that the direction by the trial judge on the possible use of the evidence as corroboration was not unfavourable to the defence.

On the other peripheral matters argued, there is no need to add anything to what is stated by Pincus J.A. and Byrne J.

The appeal should be dismissed.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND BYRNE J.
Judgment delivered 01/09/1995

The appellant appeals against convictions on a number of counts of sexual offences against his step-daughter. There was uncontradicted evidence before the jury that he repeatedly interfered with her and there is no reason to think that the convictions were unsafe; the appellant was convicted of one count of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years and of eight other counts, seven of which were of indecently dealing with the child under that age, and one of attempting to procure such a child to commit an indecent act.

The only ground taken in the notice of appeal was that the trial judge was wrong in law in directing the jury that the evidence contained in Exhibit 5, tendered as a prior inconsistent statement, was capable of corroborating the complainant. However, in oral argument, counsel for the appellant raised a number of other suggestions. He said that even if the evidence in question was technically corroborative, the judge should not have let it go to the jury as capable of being corroborative; that it should not have been admitted because it was highly prejudicial and of little probative value; that the prior inconsistent statement should not have been in the jury room as a document; and perhaps some other complaints.

The complainant’s mother when called at the trial gave evidence which was held to be inconsistent in relevant respects with that which she had given in the committal proceedings and with what she said in a statement to the police dated 26 April 1994; the judge also relied on demeanour, in giving the prosecution counsel leave to cross- examine her. No complaint is now made of this course. The central point is that as a result of the witness having been cross-examined there was tendered part of the statement the mother had made to the police. It said that at a relevant time:

" C and I were in bed asleep and at about midnight one night he woke me up to have sex. After we had finished having sex he kept calling me S and he also asked me if he had hurt me. The next day I asked him if he recalled what he had said and he said he didn’t. I thought that his comment was strange, however I did not think there was anything happening between himself and S.
After C had been arrested, S didn’t live at home for about 1 month. During this time C kept telling me that I had to stand by him, and for me not to talk to the Police about the incident when he called me S after we had had sex. "

The point of this evidence was said to be that it suggested the existence of a sexual attraction on the part of the appellant (C) towards the complainant (S). The first question is whether this was, as the judge held, worthy of the jury’s consideration as capable of being corroborative. The judge directed the jury in effect that they should proceed in the matter "very very cautiously" because it was an inference of a circumstantial kind which the jury was being asked to draw against the appellant. His Honour also directed the jury that it is "for you and you alone to say whether that amounts to corroboration in fact".

It is possible that if the appellant said what was attributed to him after having sexual intercourse with his de- facto wife, the complainant’s mother, he did so because he entertained a fantasy that it was the complainant and not her mother with whom he had just had intercourse; that notion is supported by the evidence that he asked the mother whether he had hurt her, a question which would be rather incongruous if asked of a de-facto wife rather than of a child. The idea that what was said implied the existence of strong sexual feelings towards the complainant child gains strength from the request, attributed to the appellant, that the complainant’s mother not tell the police about the incident; this suggests that the appellant himself regarded his having called the mother by the child’s name, on the occasion in question, as giving support to the allegation of a subsisting sexual relationship between the child and himself.

It was not, as we understood the appellant’s argument, contested that independent evidence showing the existence of a strong sexual desire in the appellant towards the child complainant - i.e. specifically, a desire to have sexual intercourse with her - may in appropriate circumstances be capable of being corroborative; cf. McKay [1986] 1 Qd.R. 476 at 477. But even if that were not so, the added ingredient here, that the appellant tried to induce the mother not to tell the police about the incident, plainly made it one which the jury were entitled to consider as potentially corroborative. We were referred to authorities dealing with the question whether evidence which may bear upon the question of guilt or innocence, but is susceptible of competing inferences, can be corroborative: Kerim [1988] 1 Qd.R. 426, M (C.A. No. 121 of 1993, 14 February 1994, unreported). M was a rape case, the complainant being a young girl, in which an issue was whether evidence of an "unnatural passion for the complainant" could be corroborative of rape, the contention that it could not was based on the view that, to be corroborative, the evidence had to confirm not only the fact of penetration, but also non-consent. The Court held that the evidence of guilty passion, consisting in evidence of other sexual contacts between the complainant and the appellant, was properly left to the jury as capable of being corroborative, on the basis that it could be regarded as "increasing the probability that the complainant’s entire testimony was truthful". Here, the evidence of "guilty passion" was not of the same kind, but was nevertheless sufficient to be indicative of strong sexual feelings towards the child. In our view the primary judge was right to leave Exhibit 5 to the jury as capable of being corroborative.

The other submissions made about this subject do not appear to have much substance. It was said that the statement in Exhibit 5 was of too slight weight to be let in, having regard to its prejudicial character. The assumption underlying such submissions as this is that the jury might, by some improper process of reasoning, treat the evidence as having considerable strength when rationally it has none. But one of the functions of a jury is to bring its collective experience to bear on the problem before the Court, which here was whether or not the behaviour attributed to the appellant showed the nature of the feelings the appellant had towards the child and tended to support the Crown case that the appellant had interfered with her sexually. The relevance of the evidence could hardly be doubted and its weight was a matter for the jury.

It was also said that the content of Exhibit 5 should not have been let into the jury room in documentary form. The basis of this contention was not made clear. What happened at the trial was that the judge ruled that the prior inconsistent statement could be tendered, with appropriate deletions. There is nothing in the record to suggest that the tendering of the statement, as opposed to oral evidence of its contents, was objected to. Before us the contention was perhaps that s. 18 of the Evidence Act 1977 was not a good ground for the tender of the statement because in the course of her evidence the witness "distinctly admitted" its contents, although it must be said that the precise point being made was not very clear. Assuming that we have correctly understood the argument, reference to the record shows that it is factually incorrect; the mother, in her evidence, claimed not to recall the relevant part of the statement.

The appeal is dismissed.