R v D - [1999] QCA 25

[1999] QCA 25

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 209 of 1998

Brisbane

[R v D]

THE QUEEN

(Applicant) Appellant
Pincus JA
Davies JA
Thomas JA

Judgment delivered 23 February 1999

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - appeal against conviction for sexual offences - whether evidence of witness wrongly admitted - availability of new evidence relevant to question litigated at the trial - whether there was a miscarriage of justice - whether further oral evidence required.
CRIMINAL LAW - application for leave to appeal against sentence - whether sentence manifestly excessive.
Condren [1991] 1 Qd. R. 574
Gallagher (1986) 160 C.L.R. 392
Lawless (1979) 142 C.L.R. 659
Mickelberg (1989) 167 C.L.R. 259
R v A (CA No. 55 of 1994, 14 June 1994)
R v P (CA No. 330 of 1997, 19 December 1997)
R v Van Nam Nguyen (Victorian C.A. Nos. 300 and 290 of 1996, 28 November 1997)
Criminal Code, s 671B(1)(b)

Counsel:Mr A J Glynn SC for the applicant/appellant.
Mr M J Byrne QC for the respondent.

Solicitors:Robertson O'Gorman for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 8 February 1999.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23 February 1999

The appellant was convicted after a trial in the District Court of a number of sexual offences against a girl who was, when most of the alleged offences were said to have been committed, a child. Although the notice of appeal says that the appellant desires to appeal against his sentence and does not express a desire to appeal against the conviction, the hearing was treated as if it were both an appeal against conviction and an application for leave to appeal against sentence.
The complainant was born on 7 November 1974. The appellant was at all material times her mother's defacto husband and he adopted the role of parent, in relation to the complainant. The complainant's mother left the complainant's father when the complainant was aged three and shortly after that she began to live with the appellant; she was still in a defacto relationship with him at the date of trial. The Crown case was that the appellant misconducted himself with the complainant sexually from about the age of 11 on numerous occasions, the last of which occurred when she was 21 years of age. The principal but not sole issue in the case was whether the instances of sexual interference of which the complainant gave evidence had occurred; in his evidence the appellant denied them all. Although witnesses other than the complainant and appellant were called, the conflict before the jury was essentially one of word against word.
The jury convicted the appellant on all the counts against him - 38 in number. They did so after a careful summing-up by the trial judge of which no complaint is made before us. There were 18 counts of rape for each of which the appellant was sentenced to a term of 12 years imprisonment; on the other counts the appellant was sentenced to various terms ranging from 3 to 12 years. The arguments advanced for the appellant, with respect to the convictions, were that evidence from two witnesses was wrongly admitted and that a miscarriage of justice had occurred in that evidence had been discovered since the trial giving rise to a significant possibility that the jury would have acquitted if they had heard it.
Ground A
The Crown called one A, a sister of the complainant's mother. Her evidence was to the effect that when the complainant was living in a Central Queensland town she had some contact with the appellant and his family who, according to other evidence, lived at the same town from when the complainant was about five until she was eight or nine. The witness said that the appellant treated the children of the family roughly and she saw the appellant give the complainant what was described as a "flogging". It was said, in substance, that the harsh treatment the complainant and other children received from the appellant was not justified by any misbehaviour on their part. Admission of this evidence, to which no objection was taken at the trial, was criticised by Mr Glynn S.C. for the appellant on the ground that it could only have gone to the issue of consent which was not a "serious issue" but merely a technical one. The evidence of A was, in our opinion, relevant to the question whether it was likely to be true, as the complainant said, that she was in fear of the appellant at times when he sexually abused her; in this connection she referred to having been "flogged". Counsel for the appellant below cross-examined the complainant on this topic at some length and expressly conceded, in answer to a question from the trial judge, that A's evidence went to the issue of consent. This ground appears to us plainly to be one which must fail.
Ground B
A Mrs B, another sister of the complainant's mother, was called to say that when the complainant was in grade 8, the witness was asked to accommodate her at her home so that the complainant could go to a high school in [that town]. The evidence was that the complainant stayed with Mrs B for about three-quarters of a year and during that period was "quiet but happy" and caused no problems; but in the week leading up to school holidays, said Mrs B, the complainant would "go very quiet and I overheard her sobbing in bed at night". Mr Glynn pointed out that, if it were accepted that the complainant was very unhappy before she had to return home and if it were inferred that this was because of something which happened at home, the conclusion that she was being sexually abused did not necessarily follow.
Whatever the position might be in other cases, the issues raised here were such as to make the evidence, although not of great significance, admissible. In cross-examination of the complainant, counsel for the appellant below emphasised that, as the complainant admitted, there were occasions when she could have avoided the risks associated with contact with the appellant, but she would return to her family because she missed them. The judge discussed this topic at some length in his summing-up; it appears that the argument advanced was that if, as she said, the complainant was being sexually abused by her father over a period of years, it was unlikely that, during that period, she would have been happy to return home if there were any other course open to her. The evidence of Mrs B had to do, as it appears to us, with that issue; if accepted, the evidence might have tended to make the jury think that, at least on some occasions, the complainant exhibited distress at the prospect of going home, during the relevant period.
Ground C
A third issue raised by Mr Glynn is based on the availability of new evidence relevant to a question litigated at the trial. We have considered this, up to the present, on the basis of an affidavit of the witness in question, Mr AAD, who is a brother of the appellant, without hearing from the witness. It is clear that this Court may require that the witness in question be called: see s. 671B(1)(b) of the Criminal Code and, as to the exercise of the relevant discretion, Lawless (1979) 142 C.L.R. 659 at 665, 671, 672, 684.
The affidavit relates to an incident which took place at [another place] in 1993 and about which the complainant was cross-examined. Her evidence was to the effect that she was at the time in a relationship with a man called H. The complainant's evidence was that she said in the presence of H, the appellant, her brother T and T's girlfriend S, that the appellant had been sexually abusing her. Following that, the complainant said, she went "inside" and started crying. The complainant agreed that H had been supportive of her complaint but she elected not to continue with it; she said: "I was scared at the time. I just wasn't ready". According to the appellant's evidence about this incident, when the accusation was made, he expressed a desire to have the police called in. When asked how the complainant responded to that request, the appellant said:
"Well, I wasn't allowed to use the phone for a start and after that I went over to the brother's place - well, I was over at the brother's place and I just wasn't allowed to do anything and my wife stepped in and just asked me to settle down and let her sort it out, but I couldn't get the police into it so I just left it up to her".
Subsequently, it was common ground, the appellant obtained from the complainant and H a document which was intended to be a signed retraction of the allegation. This was a letter which said that the complainant and H apologised -
". . . for anything that we said on the night in question, that may have been slanderous".
The reference to slander is explicable by other evidence suggesting that the appellant threatened a defamation suit, and is also related to the evidence about a prospective expensive court battle, which we shall mention now. H's evidence about this matter was that after the complainant said that the appellant had raped her, he confronted the appellant with the allegation and the appellant wished to ring the police; but the complainant would not let him do so. H, who gave a different version as to the persons present from that given by the complainant, said that he asked the complainant why she did not want the matter sorted out and she "used the excuse we didn't have the money and they wouldn't believe us". H gave evidence that he could have obtained $100,000 to support her and also said that if the complainant wanted it he would have backed her. He said that he understood that would have involved a fight in court and quite a lot of money. Although the complainant's mother, whose first name is DE, was present during the incident we have mentioned, she was asked no questions about it.
According to the affidavit of AAD on which reliance is placed by the appellant, an incident occurred "about five years ago"; the date of the affidavit is 28 January 1999. The deponent said that he was living at [another place] where the complainant and H were also living. The affidavit says that the deponent saw the appellant go to the house occupied by H and the complainant and he heard loud angry voices coming from that house but could not distinguish what was being said. There was, he said, subsequent conversation, the content of which was not stated, between the complainant, H and the appellant; the next day, in response from an inquiry of the deponent the complainant denied there was any problem. A few days later, the deponent says, he had a further discussion with H and the complainant at their house. Then follows the critical sentence, which we set out precisely as it appears in the affidavit:
It was during that discussion that [the complainant] said to me that she was "trying to get a plan to split up (D and DE)".
He says that he did not hear of his brother's trial until a few weeks before it began and did not appreciate the seriousness of the charges being brought against him. He told his brother about the conversation early in January 1999.
If the complainant said, in 1993, that she was "trying to get a plan to split up" the appellant and her mother, then a possible implication may be that the plan which the complainant was trying to get was one involving making a false accusation of sexual misconduct. But in the factual context, the expression "trying to get a plan" makes little sense; if the plan consisted of the making of an accusation, it had already been made. Further, the complainant had then decided not to take the accusation further, to the point of discouraging the appellant himself from taking the matter to the police.
It is pointed out by Mr Byrne Q.C., for the respondent, that the new evidence is reminiscent of some evidence given by the complainant's mother; when asked about the relationship between the appellant and the complainant she said among other things that the complainant "just wanted me to split with him". It was common ground that the complainant disliked and resented the appellant; the contention that she exhibited that attitude towards him was pressed in cross‑examination of the complainant and reasons for it were suggested. Of course, if the complainant's version of events, which the jury accepted, was correct, there was ample reason for her disliking the appellant. A girl who has been repeatedly raped by her mother's partner could be expected to hate him on that account and might well desire that her mother cease to live with him. In the circumstances sworn to by the complainant, an expression of such a desire would not be inconsistent with the allegations she made. It is only the implication of the expression "get a plan" which could be argued to be of possible benefit to the appellant. If the jury were satisfied that, some five years later, the appellant's brother remembered the precise words said, the evidence could be relied on as an admission that the complainant proposed to fabricate some means of separating her mother and the appellant.
In Gallagher (1986) 160 C.L.R. 392, where an application of the present kind was made, Gibbs CJ stressed that "the fundamental question is whether a miscarriage of justice has occurred" (395). His Honour also took the view that a matter which has to be taken into account is whether "the evidence might reasonably have led the jury to return a different verdict" (396). Mason and Deane JJ. made a similar observation (402) and said that there would be such a miscarriage if and only if the appellate court -
". . . considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial".
Brennan J favoured the test -
". . . whether or not it is likely, had the fresh evidence been before the court, that a verdict of guilty would not have been returned". (409)
The subject was returned to by the High Court in Mickelberg (1989) 167 C.L.R. 259, but it is not absolutely clear from the reasons given whether the "significant possibility" or "likelihood" test should be adopted: see the reasons of Kelly SPJ in Condren [1991] 1 Qd.R. 574 at 576, 577 and those of the Victorian Court of Appeal in Van Nam Nguyen, 28 November 1997, at p. 7. As one sees from an examination of the High Court cases, the consideration of ensuring that the absence of relevant evidence did not bring about a miscarriage of justice must be set against the consideration that jury verdicts should not be set aside except for a substantial reason. It appears to us that it would be wrong to adopt a practice which could routinely reward the discovery, or claimed discovery, of evidence of a remark said to have been uttered by a complainant and said to throw doubt upon her veracity, by granting a new trial.
A question which has troubled us is whether this Court should deal with the matter without first going into the question further by way of oral evidence; that could involve the calling of other persons, as well as the deponent AAD, and in particular the complainant and H who was said to be party to the relevant discussion. But on the best consideration we can give to the problem, which appears to us to involve questions of degree, the proffered evidence has not sufficient strength or importance, on the face of it, to warrant taking the matter further. In our opinion this third ground, that new evidence has been discovered, should also be rejected and the appeal against conviction should be dismissed.
There was also a challenge to the sentences, the range of which we have mentioned above. The appellant is 39 years of age. He has some criminal history but none of it recent; it consists in two stealing convictions, one conviction for driving when disqualified and another of having unlawful carnal knowledge of a girl under the age of 16. It does not seem necessary to go into full detail about the circumstances of the numerous offences for which he was sentenced, but it should be mentioned that they included a number of instances of sodomy, three of which occurred when the complainant was about 11 years of age. There were as we have mentioned 18 rapes, the first of which occurred about the same time as the acts of sodomy just mentioned and the last when the complainant was 21 years of age. The judge referred to the period of 10 years over which the conduct extended, to the appellant's use of his position of power over the child and to the fact that the offences had had a profound effect upon the complainant's life. His Honour also mentioned the absence of any remorse. In favour of the appellant, the judge recognised that the appellant had worked hard for almost all his life, that he had supported his present wife and children, and that he had contributed to the community in various ways.
The principal argument advanced by Mr Glynn, with respect to sentence, was that the judge's approach was too harsh having regard to decisions of this Court in R v A (CA No. 55 of 1994, 14 June 1994) and R v P (CA No. 330 of 1997, 19 December 1997). In A it was said that a table supplied by the Crown in that case suggested -
". . . that the level of sentence for an offence of this general kind on a helpless complainant, such as the girl in this case, is about the 10 year mark".
But there are differences between A and the present case to which attention should be drawn. In A there were only two rape convictions, although it was held that they were not isolated instances, but examples of a consistent course of conduct. Further, there the offences occurred over a shorter period - 5 years instead of 10 years. A more difficult point is the reference in the principal judgment, that of McPherson JA, to "an offence of this general kind". His Honour did not suggest, of course, that a 10 year sentence is to be imposed whenever there are rapes and other similar offences, committed upon a young girl by a step-father or person in the position of a step-father. The sentence must be fixed having regard to the precise circumstances of the case which can vary widely in a number of ways: as to the damage to the victim, the number and type of offences, the presence or absence of remorse, the period over which the offences extended, the extent to which violence was used or threatened, the offender's criminal history and other ways.
In the other case relied on, R v P, there were no rapes charged; we do not think the facts are sufficiently close to the present to make the decision one meriting discussion.
A reason for reluctance to hold the judge's sentencing discretion to have been wrongly exercised, in the present case, is that his Honour had the advantage of personal observation of the appellant and the complainant when they gave evidence before him. Having conducted the trial the judge was better placed than this Court is to assess the relationship between the appellant and the complainant and the effect of the offences upon the complainant. The judge plainly regarded the case as a bad one and the damage done to the complainant's life, by being repeatedly raped and sodomised in her youth, as serious. In these circumstances the sentences are in our opinion not open to any reasonable criticism and should be upheld.
We would dismiss the appeal and refuse the application for leave to appeal against sentence.