R. v. Carmichael

[1993] QCA 550

IN THE COURT OF APPEAL  [1993] QCA 550

SUPREME COURT OF QUEENSLAND

C.A. No. 373 of 1993

Brisbane

[R. v. Carmichael]

THE QUEEN

- v -

ANDREW DAVID CARMICHAEL

(Appellant)

Mr Justice Pincus

Mr Justice McPherson
Mr Justice Williams

Judgment delivered 16/12/93

Joint reasons for judgment by Pincus J.A. & Williams J.  Separate reasons by McPherson J.A.  All agreeing as to the order

APPEAL AGAINST CONVICTION ALLOWED. CONVICTION SET ASIDE.  JUDGMENT OF ACQUITTAL ENTERED IN RESPECT OF COUNTS 2 AND 3.

CATCHWORDS                  CRIMINAL LAW - Whether verdict unsafe and unsatisfactory - Indecent dealing with girl under 14 years of age - Reliability of child witness - Lengthy period since alleged crime took place - Whether evidence of alleged rape admissible - Whether prejudicial effect outweighed probative value - Whether admissible as similar fact evidence - Whether Judge should have warned that complainant's disturbed personality might affect the reliability of her evidence.

Counsel:T. Rafter for the appellant

B. Butler for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:  2 December 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 373 of 1993.

Brisbane

BeforeMcPherson J.A.

Pincus J.A.

Williams J.

[R v. Carmichael]

THE QUEEN

v.

ANDREW DAVID CARMICHAEL

(Appellant)

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND WILLIAMS J.

Judgment delivered 16/12/93

We have read the reasons of McPherson JA.  As his Honour points out, the complainant's story was uncorroborated.  Not only that, but in so far as evidence of matters other than the alleged sexual acts had any bearing on the likelihood of the complainant's story being true, that evidence tended against the Crown case.

The complainant was born on 27 June 1973 and gave her evidence when she was 20 years of age.  She began with an incident that she claimed to recall as having occurred in July 1976 when she was just three years of age.  One would not expect a girl of 20 to have any but perhaps obscure and hazy recollection of events in her life when she was only three.  Here, the complainant claimed to recall events which occurred at that age, as follows; the sexual acts are not included:

The appellant came and stayed with the complainant's family for a couple of weeks.

That came about because the complainant's mother, the appellant and others had gone on holiday and the appellant stayed with the family for a while after that trip.
The appellant then stayed in a shed at the back of the complainant's family's house.
On a week day the complainant's mother hurt her leg and had to go to the doctor; the complainant's siblings were at school and her father at work, so the mother, the appellant and the complainant drove in the appellant's car to drop the mother off at the doctor's - "she had to have X-rays or something done on her leg".
When the complainant and the appellant arrived home they walked around the back of the house and the appellant said 'Why don't you come down and we'll play some games?"  He said it would be interesting.
The complainant walked upstairs and a couple of minutes later she walked down to the shed where the appellant, lying on his bed, said "Why don't you come here and I will read you some stories?"

The complainant wanted to play games; the appellant sat with her on the floor and started to tickle her with his right hand, his left hand holding the complainant's hands above her head.

At this time the complainant was wearing a t-shirt and shorts.

During the act of sexual intercourse the appellant was lying on top of the complainant leaning to one side on his left leg.

One could go on, but it is clear enough that no reasonable jury could have been satisfied, to the requisite standard, that the completely unsupported account of this sequence of events, claimed to have occurred in July 1976, was true.  Further, such an improbable story could not assist the jury towards a conclusion that the later instances of sexual interference alleged against the appellant occurred; it should rather have tended to make the jury think that the complainant was inclined to claim to recall events and detailed circumstances which were not in truth stored in memory.

One would have expected the evidence concerning sexual interference when the complainant was three years old to damage the Crown case and perhaps destroy it; but the evidence was inadmissible for the reasons explained by McPherson JA, and the defence was entitled to have it kept out.  Although its probative value so far as the events charged were concerned was negative, the admission of that evidence vitiated the trial; at the least, it was a substantial distraction from the more arguable questions in the case.

McPherson JA has drawn attention to weaknesses in the Crown case of which the principal ones are, to our minds, that the various incidents relied on by the Crown are described in suspiciously similar ways by the complainant; that the complainant is admittedly inclined to behave in a very odd way; that the complainant, when she saw an experienced counsellor last year, told her that she could not identify the person who had abused her and said she thought it might have been a man across the road; and that the appellant was picked out by the complainant as the abuser from a series of photographs.  Obviously, this Court must be careful not to usurp the jury's role as the tribunal of fact, but no matter how impressive the complainant's demeanour, or how unimpressive that of the appellant, it seems to us impossible to conclude that the verdicts arrived at are adequately supported by the evidence given.

Like McPherson JA, we are of opinion that they must be thought to be unsafe.  The appeal should be allowed and convictions quashed.  We agree with the orders his Honour proposes.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 373 of 1993

Brisbane

BeforeMr Justice Pincus

Mr Justice McPherson
Mr Justice Williams

[R. v. Carmichael]

THE QUEEN

- v -

ANDREW DAVID CARMICHAEL

(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 16th day of December 1993

Andrew David Carmichael appeals against convictions sustained at his trial in the District Court in September this year.  He was charged with a single count of rape committed at Toombul between December 1981 and March 1982.  It was count 1 in the indictment.  Counts 2 and 3 were charges of indecently dealing with a girl under 14 years of age.  They were both alleged to have been committed at Brighton, the first on a date also during the period December 1981 and March 1982, and the second between December 1983 and March 1984.  The jury found him not guilty of the charge of rape but guilty of the other two offences.

The appellant is a married man, now aged 42 years, with a wife and two children who lives in South Australia.  The complainant in all three charges is a young woman born on 27 June 1973, so that she was aged 8½ years at the time of the offences alleged in counts 1 and 2, and 11½ at the time of the offence in the third count.  By the date of the trial she was 20 years old.  She has a brother and a sister, who are a little older than she.  They all came to Queensland from Adelaide when the family moved here in 1981.  They and the appellant belong to the same church, which appears to have been what brought them together many years ago.

Since adolescence, if not before, the complainant has been prone to what she acknowledged in her evidence was "quite bizarre" behaviour.  She has mutilated herself by burning and inflicting injuries which have left scars on her arms, legs, stomach, and face.  On one occasion she injected a fluid into her eye because she wanted to hurt herself.  She has twice attempted suicide.  She admits to emotional outbursts and to bouts of attention-seeking behaviour.  She suffers from bulimia and has frequent stomach cramps.  At the age of 15, she was referred to a psychiatrist, whom she refused to consult, and at the time of the trial she was receiving therapy for psychiatric problems.

Some time ago the complainant's mother became convinced that the complainant had been sexually abused.  At the trial she gave evidence:

"... as a mother I knew there was something - there was something seriously worrying her and I had a feeling that there had been a few things unusual happen, and in my heart I felt she had been abused and I didn't know how to get her to bring it out to me, because I knew she was trying to protect whoever it was."

The complainant confirmed that her mother began asking her if she had been abused; but, the complainant insisted, she did so only "spasmodically, just every now and then.  It wasn't all the time".

The next step was to identify the perpetrator.  The mother said that when the complainant was finally willing to bring it out that she had been abused, the mother knew she could not tell her his name.  She gave the complainant a photograph album containing pictures of every person who had ever stayed in their house, and suggested that the complainant bring her the photograph of the man in question without needing to say the name.  That, her mother said, was what the complainant did.  By this means the appellant was at last identified as the wrongdoer.

The complainant agreed that she had used the photograph album in that way but denied she did so at the suggestion of her mother, or that she needed it in order to identify the appellant.  He is, however, not the only or even the first person she selected.  In 1992, on her mother's advice, she consulted Ms. Sharon Ward at Teen Challenge.  Ms. Ward, who saw the complainant on three occasions in April and May 1992, gave evidence for the defendant at the trial.  She holds degrees in arts and social work and has had four years experience in counselling; some 18 months of it has involved counselling young girls who were victims of sexual abuse.

Ms. Ward, who believed she established a "very good rapport" with the complainant, said that at the first interview on 16 April 1992 the complainant claimed that she had been sexually abused as a child.  According to Ms. Ward's account, the complainant was -

"very distressed that she could not remember who the offender was ... She thought perhaps it might have been a neighbour across the road; but at the time she could not recall who the offender was".

It was not until 6 May, after a visit to South Australia, that the complainant advised Ms. Ward that she had identified the offender and had also confronted him.  The confrontation took the form of a telephone call in fact made by the complainant's father to the appellant on 24 April 1992.

The complainant was adamant that she always knew who it was that had sexually abused her, and so was able to identify him when she first saw Ms. Ward in April 1992.  She did, however, agree that she had in fact told Ms. Ward she was not able to do so.  That, she said, was because "I didn't like the lady", and was afraid of being laughed at by her.  She denied telling Ms. Ward it might have been the man across the road.  In cross‑examination she said she was "positive" she knew who the offender was at the time when she complained to the police, which she claimed was in March 1992.  That would be consistent with her assertion that she knew his identity at the time of the first interview with Ms. Ward in April 1992.  However, Mr Butler, who appeared for the Crown on the appeal, candidly informed the Court that the police statements indicated that the complaint had been made in May 1992.  To this, it may be added that Ms. Ward appears to have kept written notes of her appointments, to which she referred on at least one occasion while giving her evidence.

The only evidence about the matters in the three counts of the indictment came from the complainant.  It was denied by the appellant when he gave evidence at the trial, and it was not corroborated.  As regards the charge of rape in count 1, the complainant said that in January 1982 she was living with her family in Brighton, when the appellant and his friend Eric came to stay with them.  They were there for about two weeks.  One day in January 1982, the appellant, Eric, the complainant, her brother and sister went to Toombul Shopping Town.  The appellant, who drove them in his car, dropped the others at the shops and went to find a parking place.  The complainant went with him.  She said they travelled some distance away from other cars, and parked near the creek.  He told her that he loved her and laid her down on the back seat.  He ran his fingers through her hair, around her vagina, and "round my breasts" on the outside of her clothes.  He pulled her shorts down, unzipped his pants, pulled out his penis, which was soft but became erect straight away, and then guided it into her vagina. Afterwards, he told her that this was "our little secret".

They then drove back to the shopping centre entrance, where the others were waiting.  According to the complainant, the appellant explained to Eric they had had to park "over there" because it was difficult to find a place.  Her brother in his testimony confirmed that part of her evidence, and added that the complainant was crying at the time she returned.  That was something the complainant herself had not mentioned, and it was denied by the appellant's friend Eric.  If the complainant was crying, no one seems to have thought to ask her why, and she made no complaint to anyone about what she claimed had happened to her.

The appellant denied the rape.  He remembered taking everyone to Toombul but did not recall much more about the occasion itself.  The complainant was, it will be recalled, 8½ years old at the time.  The jury may have thought it improbable that anyone would have chosen to rape her in a car, parked near a busy shopping centre, with the windows wound up at about midday on what everyone except the complainant agreed was an extremely hot day.  The appellant would have had to have been very confident that no one would chance to see them, and that she would not tell.  Whatever the reason, the jury found the appellant not guilty of count 1.

They took a different view of count 2, which was a charge of indecent dealing alleged to have been committed during the same two-week period when the appellant and Eric were staying at Brighton, where they were sharing a room.  A few days after the alleged rape at Toombul, the complainant said she saw the appellant lying on his bed fully clothed.  He talked to her for a while, and then said to her "Why don't you touch me?".  She said he sat up, unzipped his pants, started touching his penis, and then held her hand on it making her masturbate him. 

By the time of the offence alleged in count 3, which was said to have taken place in January 1984, the complainant was 11½ years old and the family had moved to a second house in Brighton. The appellant stayed there for a couple of days with his friend Eric and another friend named Adam.  The complainant said that one night the appellant came quietly to her bed, saying "Shush, it's only me".  She moved over and he came in and lay beside her.  He ran his hands through her hair, kissed her with his open mouth, and ran his hand round her breasts.  He had just started to move his hand down her body when the floorboards creaked.  The appellant jumped out of bed and grabbed a tissue from the kitchen.  He then returned briefly to her bedroom and said "They're trying to find out our little secret".  The appellant admitted that he had stayed in the house for about three days.  He denied he was ever in her room.

This was essentially all the evidence there was of the offences charged in counts 1, 2 and 3.  At the trial, however, the prosecution tendered evidence of an even earlier incident alleged to have taken place in July 1976, when the complainant was just one month over three years old, and the appellant was about 25.  According to the complainant, the appellant, who at the time was staying with her family in Adelaide, drove her mother to see the doctor about an injury to her leg.  He and the complainant returned to the house alone.  On arrival he walked toward the shed at the rear where he slept, saying to her "Why don't you come down and play some games?".  He told her it would be "interesting", so she later went to the shed, where he was lying on a bed.  They sat on the floor together and he started to tickle her under the arms holding her hands above her head.

Then, the complainant said, "he moved his hand under my shirt and started to touch me around my breast".  He unzipped his pants, pulled out his penis and masturbated; it was soft at first, and then after a while it was erect.  At this stage, the complainant said, she was "crying and screaming, telling him to stop", whereas he was "reassuring" her that it was all right.  He moved on top of her and guided his penis into her vagina, while continuing with his right hand to touch her on the breast under her clothes.  With his penis inside her, he moved up and down on top of her, while she screamed out "No, no, get off me".  When he was finished he pulled up her shorts and his own and told her to go and wash her face.  When she went to the toilet he knocked on the door and asked her if she was alright.  She said "No, it hurts to go to the toilet", to which he responded saying "Don't worry.  It's okay; the pain will stop".

It was about this time the complainant started having terrifying nightmares.  Yet she complained to no one about what the appellant had done to her, and did not mention to her mother the pain she was having, which lasted for a couple of days and which she described as "excruciating" when she went to the toilet.  In addition to recalling that it was July 1976 when this incident happened and repeating viva voce details of what was said, the complainant claimed to remember the clothes that each of them was wearing at the time.  He had on shorts and a shirt; she a T-shirt and shorts.  Five years later in the course of the alleged Toombul rape in 1982, he said to her (or so she claimed) "you remember I love you, don't you?"  This seems to have been intended as a reference to his raping her in 1976.  The appellant recalled staying at the complainant's home in August (not July) 1976, but he denied raping her.

Her prodigious feat of memory of the 1976 incident is not matched by her recollection of events that are closer in time, or even of other matters that happened in 1976.  She does not know how long the appellant stayed with them then, nor whether he ever again played games with her, or tickled her, or did anything else to her before he left their home.  She cannot say whether the Toombul rape (count 1) took place on a very hot day, nor whether the incident a few days later (count 2) occurred in the morning or the afternoon.  She cannot now remember whether at the time of count 3 in 1984 she was having trouble with her school work.  Nor was she able to recall whether or not at the second interview in April 1992 she gave Ms. Ward details of the alleged sexual abuse she claimed to have suffered.

There are sound reasons for doubting the accuracy and veracity of much of the complainant's evidence about the incidents she alleges.  The most recent studies suggest that pre‑school children do sometimes make false claims about central events, particularly those involving their own bodies.  See Ceci & Bruck: The Suggestibility of the Child Witness (1993) vol. 113, Bulletin of the American Psychological Association, 403, 432-434.  Here the doubts are compounded by the lengthy time that has elapsed since the events in question, which raises additional problems: ibid, at 417.  The extreme improbability of the complainant's being able to recall many of the details she recounted of the first incident in 1976 argues strongly for a considerable element of conscious or unconscious reconstruction in the evidence she gave concerning all four incidents.  There are some marked similarities suggestive of repetition in the way different incidents are described, even though they were separated by many years in time.  The appellant is consistently described as "unzipping" his pants, and producing his penis, always soft at first and then becoming hard as he touches it or masturbates.  That is so of the first three incidents described; the fourth (which was also the most recent) was interrupted and never completed.  In both of the alleged rapes the appellant is recalled as "guiding" his penis into her vagina, and there is repeated emphasis on his touching her "breasts" despite her being then only 8½ years old in 1982, and only 3 in 1976.

Various inconsistencies in her evidence have already been identified.  In addition there is the unsatisfactory way in which the claim of sexual abuse came to light, and the means adopted to identify the appellant as the culprit.  It was natural that the complainant's mother should have been searching for an explanation for the disturbed behaviour of her daughter; in doing so she arrived at the hypothesis that it was caused by sexual abuse.  There may possibly be a scientific basis for such a conclusion; if so, there was certainly no evidence to support it at the trial.  Maternal instinct is not an acceptable substitute.  The mother's answer, which is set out above, came as the response to an incautiously framed question in cross‑examination; but she ought not to have been telling the jury that she knew "in my heart" that her daughter had been abused.  There may have been some who were persuaded by such an assertion.  The way in which the photographs were used as an aid to identifying or nominating the appellant is open to many of the criticisms which are levelled against the use of tainted identification evidence in more mundane cases.  According to what the mother said, the complainant was provided with a series of photographs and set the task of selecting the offender from among them.  It appears that only visitors were suggested; male members of the family were excluded.  In this way, a cause was found for the complainant's unhappy condition that was external to both her and the family.

Apart from these considerations, which go directly to whether the guilty verdicts can safely stand, some questions of law were also raised on appeal.  The first was whether evidence of the alleged 1976 rape should have been admitted at the trial.  The defence objected that the prejudicial effect of the evidence outweighed any probative value it might have; see Evidence Act 1977, s.131; but the trial judge admitted it. On appeal, it was submitted both that the evidence was not admissible in law, and that his Honour had exercised his discretion wrongly in receiving it despite its prejudicial effect.

For the respondent reliance on appeal was placed on the statement that "in cases involving sexual activity between two persons the whole history of their sexual relationship may be relevant": see R. v. T.J.W., ex parte Attorney-General [1988] 2 Qd.R. 456, 457, per Thomas J. A somewhat similar statement is found in McConville v. Bayley (1914) 17 C.L.R. 509, 512, per Griffith C.J. However, it would not accord with common usage to speak of a "relationship" in sexual matters of a man and a little girl of 3 years of age, who met again some 5½ years later in 1982, and thereafter only after a further two years in 1984. In B. v. The Queen (1992) 175 C.L.R. 599, 610, Dean J. referred to evidence of indecent acts committed by a father against his young daughter "as the key to an assessment of the relationship between the applicant and the daughter, and, as such ... part of the essential background against which [their] evidence of the alleged offences necessarily fell to be evaluated". Both the reasons of his Honour (at 610), those of Mason C.J. (at 602), and of Brennan J. (at 605) emphasised the potential of the evidence in that case to demonstrate the appellant's unnatural passion towards his daughter.

The present case does not readily fit those specifications.  It is certainly unnatural for a man of 25 to feel sexual passion for a girl aged 3 years; but it is difficult to see why his having raped her at that age should make it more likely that he would wish to have sexual intercourse with her again, or why it would facilitate his indecent assault upon her some 5 years later.  The common experience on which juries are traditionally expected to act suggests that girls of such a tender age as 3 do not inspire lasting passion or lusts in grown men.  There was nothing about the appellant himself, or the method he is alleged to have used in 1976, that was so striking or distinctive as to show either that the later sexual acts were done, or, if they were, that he was the perpetrator.  It is thus not easy to see how this case can be brought within any of the recognised exceptions to the general prohibition in Makin v. Attorney‑General for N.S.W. [1894] A.C. 57, so as to justify the reception of alleged similar acts on other occasions in order to prove an element in the prosecution case : see Hoch v. The Queen (1988) 165 C.L.R. 292, 295-296. The incident in 1976 was really too remote in time or potential relevance to supply any rational link to or explanation for the acts alleged to have been done in 1982 or 1984. It served to do no more than enlarge the area of dispute and thus distract the attention of the jury from the issues on counts 1, 2 and 3 that they were empanelled to try.

Evidence of the 1976 incident ought therefore not to have been admitted.  In his directions to the jury, his Honour tried to explain the use to which evidence of similar facts might be put in deciding whether the subject offences had been committed.  In doing so he chose the illustration of someone who admitted to having committed six burglaries but denied he was responsible for a seventh.  The details of the illustration employed were more sophisticated than this simple account suggests; but we think that Mr Rafter for the appellant was correct in submitting that the example was probably not well chosen.  The appellant here had not admitted to doing any of the acts alleged including that of 1976.  The position in this case was therefore very different from that of the appellant in B. v. The Queen (1992) 175 C.L.R. 599, who at the trial himself adduced evidence of his prior conviction for indecent acts.

His Honour gave the jury the standard direction on the subject of corroboration in cases of this kind.  He warned of the dangers of acting on the complainant's testimony without having evidence from an independent source tending to confirm her account in some material particular.  He emphasised there was no such evidence in the case before them.  He dwelt on the weaknesses of human recollection after the lapse of so long a period of time.  It is not suggested that his directions in these respects were in any way inadequate.  It is however, submitted that he ought, consistently with the decision in Bromley v. The Queen (1986) 161 C.L.R. 315, to have given a specific warning to the jury about the danger of acting on the complainant's evidence when, having regard to her admittedly disturbed personality, it ought to have been seen as potentially unreliable. The witness under consideration in Bromley v. The Queen was suffering from schizophrenia, and the formulation that appears (161 C.L.R. 315, 319) in the judgment of Gibbs C.J. (with whom Mason, Wilson and Dawson JJ. agreed) refers to a witness having "some mental disability which may affect his or her capacity to give reliable evidence". Without suggesting that the principle of Bromley is necessarily confined to recognised mental disability strictly so called, there is here no direct evidence of the nature of the psychiatric problems from which the complainant is suffering or of their possible impact on her veracity.  We consequently prefer to approach the evidence of her disturbed background as tending with other matters to support the submission that the two verdicts of guilty returned by the jury may be considered unsatisfactory.

It might be thought that the various weaknesses in the Crown case and particularly the testimony of the complainant should have been so obvious to a jury as to make them reluctant to return a verdict of guilty against the appellant.  The fact is that they, or at least some of them, evidently did feel a sense of disquiet.  They first retired at the end of the summing up at 2.40 p.m. on Day 3 of the trial.  By 7.25 p.m. they had not succeeded in reaching a verdict, and were consequently kept together overnight.  When the court reconvened on the following morning, the trial judge had received a note from the jury saying they were "having trouble reaching a unanimous decision".  His Honour then gave them the direction from Shoukatallie v. The Queen [1962] A.C. 81. Shortly before the luncheon adjournment they returned with verdicts of not guilty of the more serious offence and guilty of the two less serious offences. The fact that the prosecution case rested throughout solely on the evidence of the complainant is not enough to condemn those verdicts as inconsistent; but a suspicion inevitably arises that in the particular circumstances of the case the result may have been the outcome of a compromise.

The case is thus one in which the appellant, a person with no prior convictions and of apparent good standing in the community has been convicted of two quite unsavoury offences alleged to have been committed between 9 and 11 years ago.  The only evidence against him, which is contradicted by his own sworn testimony at the trial, is that of the complainant, whose admitted behaviour in recent years displays symptoms of a seriously disturbed personality.  What the complainant said at the trial is, in some important particulars, inconsistent with the evidence of a wholly independent and, we think, not unsympathetic witness Ms. Sharon Ward.  In other equally important respects, it is contrary to general experience of human capacity very early in life to recall actions and statements with the degree of accuracy she claimed.  The circumstances in which she came to believe that she had been sexually abused and that the appellant was the perpetrator are obviously vulnerable to the suggestion of reconstruction and of prompting from sources other than her own unaided recollection.  In addition, at the trial of the appellant, evidence was admitted that was not only not probative but liable to have had a disproportionately prejudicial effect on the fair conduct of the trial.

When all these matters are considered in combination, it is we think clear that the verdicts of guilty against the appellant cannot be allowed to stand.  They are unsafe and unreliable.  There is real risk that a serious injustice may have been done to an innocent man.  The appeal should be allowed; and the convictions and verdicts of guilty should be set aside.  In view of what we have said of the quality of the prosecution evidence, a new trial should not be ordered.  Instead, judgment of acquittal should be entered in respect of counts 2 and 3.