R v DCF
[2024] QCA 181
•1 October 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v DCF [2024] QCA 181
PARTIES:
R
v
DCF
(appellant)FILE NO/S:
CA No 224 of 2023
DC No 400 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns – Date of Conviction: 4 November 2023 (Burnett DCJ)
DELIVERED ON:
1 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
17 July 2024
JUDGES:
Bowskill CJ, Mullins P and North J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the evidence included the recording of a s 93A statement by the complainant during a drive by of the street where the offending occurred and the recording of her photoboard identification of the appellant – where the complainant’s evidence included a physical description of the appellant, identified the appellant as living on the same street as the complainant and identified and described the house in which the offending occurred – where the evidence included photographs of the appellant’s injured left arm during the period particularised for the offending and of the appellant’s splint, sling and bandage that he wore during that period – where the state of the appellant’s left arm was not observed by the complainant who gave evidence that the appellant’s arms looked normal – where the trial judge had summed up the inconsistencies in the complainant’s evidence at length before proceeding to give the specific direction on the dangers of identification evidence – whether there were deficiencies in the directions given by the trial judge on the weaknesses in the identification evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the offending conduct for the three counts was sequential and in quick succession but separately identifiable – where the trial judge gave a sexual interest direction – whether a miscarriage of justice occurred by the giving of the sexual interest direction
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
R v Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, consideredCOUNSEL:
J A Greggery KC for the appellant
S L Dennis, with C D Peters, for the respondentSOLICITORS:
Gnech and Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant was convicted after trial in the District Court before a jury of taking a child under 12 for immoral purposes (count 1) and two counts of indecent treatment of a child under 16, under 12 (counts 2-3). The offences occurred in the same incident that was particularised as occurring on a date unknown between 30 September 2020 and 1 January 2021 in a beach suburb north of Cairns (beach suburb). The complainant’s evidence narrowed the period in which the offences were committed to after Halloween and before school finished in December. At the time of the offences the complainant was seven years old and in year 2 at school and lived in the same street as the appellant who was 74 years old. When the complainant lived in that street, she went to a particular school. There was an admission at the trial that she went to that school between 5 October 2020 and 12 December 2020.
Count 1 was particularised as the appellant’s walking the complainant from the street (in which they both lived) into a bedroom in his unit at number 25 in the street. The particulars of count 2 were that the appellant licked the complainant’s vagina with his tongue. The particulars of count 3 were that the appellant touched the complainant’s vagina with his finger or fingers.
The appellant appeals against his conviction on the following grounds which are relied on separately and cumulatively:
1.A miscarriage of justice was occasioned by the directions of the learned trial judge in respect of the complainant’s identification of the appellant, particularly that:
a.the trial judge erred by directing the jury it was permissible for the jury to compare the appearance of the appellant at trial and in photographs tendered during the trial, with the appearance of the appellant in the photoboard; and
b.the trial judge erred by not directing the jury in accordance with the requirements of Domican v The Queen (1992) 173 CLR 555.
2.A miscarriage of justice was occasioned by the direction of the trial judge that proof of one count could be used by the jury as evidence of sexual interest which made it more likely the appellant committed the other counts.
The trial
The complainant’s first s 93A interview recorded on 11 March 2021, her second s 93A interview which was a drive by of the street where she alleged the offending occurred and recorded on 21 March 2021, and her photoboard identification of the appellant recorded on 24 October 2021 were played for the jury. The complainant’s s 21AK evidence pre-recorded on 10 August 2023 was also played for the jury.
In summary, the complainant stated that the incident took place after school. She had gone home and changed into her blue dress and was walking in the street to visit her friend, when the appellant approached her in the street and got her to go into his front yard, then into his house and into his bedroom. The complainant estimated that she was in the yard for 30 seconds and that it took about 30 seconds for the appellant to pull down her pants and lick her vagina and then put his finger or fingers into her vagina. The appellant said his wife was coming back and the complainant went home. The complainant did not see the appellant’s wife on the day the appellant touched her.
The other witnesses called by the prosecution were the complainant’s grandmother with whom the complainant lived at the beach suburb from October 2020 until January 2021, the foster carer with whom the complainant resided from time to time between 2017 and 2021 to whom the complainant had disclosed on 2 March 2021 that a man who lived down the road in the beach suburb had put his index finger in her vagina, and the investigating police officer Detective MacRae. Photographs were adduced into evidence of the appellant’s unit. Detective MacRae described it as a low set dwelling that was attached to another unit. It was referred to in the evidence interchangeably as the appellant’s house or the appellant’s unit.
The appellant gave evidence, as did his wife, his daughter and general medical practitioner.
The main issues at the trial were whether the jury could be satisfied beyond reasonable doubt by the complainant’s evidence that the conduct the subject of each count occurred and, if so, whether the complainant’s identification of the appellant as the offender could be safely acted upon as proof of his guilt beyond reasonable doubt.
Evidence of identification
The complainant stated in her first interview that she did not know the name of the man who took her into his front yard, then into his bed in the bedroom in his house and pulled down her pants. She thought he lived in number 5 in the street in which she was living at the time and that his house had a green gate, flowers on the branch and a top cover at the doorway. (The appellant in his evidence accepted that sometimes the Suzuki vehicle which his wife drove was parked outside under a shade cloth.) The complainant knew what the man looked like. She stated “[h]e got a cut hair around and bit of black on top …Black hair under it, and black eyes”, “[his hair is cut around the] Sides”, “And there’s a bit of hair left overs”, and he was “Skinny” and “white”. At Detective MacRae’s request, the complainant stood up to indicate how tall the man was and, by where she held her hand, Detective MacRae commented that “so he’s quite tall?” and the answer in response was confused, as it was “a little bit tall. He’s kind of short …And kind of tall”. She then said that she “was nearly taller than him”. The following exchange took place between Detective MacRae and the complainant:
“SCON MACRAE: Alright. So, [name of complainant], we’re talking about the man. You said he’s quite tall and you showed me on the wall, compared to you.
[COMPLAINANT]: I think he’s actually this tall [INDISTINCT] I think he’s actually up to here.
SCON MACRAE: Right.
[COMPLAINANT]: Or maybe just a little bit more and yeah, he’s up to here.
SCON MACRAE: Okay. That’s good. So you weren’t sure --
[COMPLAINANT]: [INDISTINCT] --
SCON MACRAE: How old he was.
[COMPLAINANT]: I was nearly taller than him.
SCON MACRAE: Were you?
[COMPLAINANT]: I could touch [INDISTINCT] --
SCON MACRAE: If you had your arms stretched out, for sure.
[COMPLAINANT]: Yeah.”
The complainant did not know how old the man was, but identified that he was an adult as he had a wife, because she had seen him lots of times before with his wife.
In the second interview, the complainant described the offender as having “black short hair”, “he was skinny” and she thought he had black eyes. She confirmed his skin was “a bit peachy’ish white”. She was asked how old the man was and responded that her grandmother was older than the man and she thought he might be 35. She thought her grandmother was 75 years old. The man had a black Jeep and it was “a short car and it was black and there was a little window at the back” and two or three seats at the back and two seats in the front. She thought it was a small car. When the complainant was with her foster carer, the foster carer took a photo of a car that looked like the man’s car. A photograph of the Suzuki vehicle that was registered in the appellant’s wife’s name was tendered at the trial (exhibit 34). Even though the complainant had said in her evidence that to her the colour of the car was black, Detective MacRae accepted that the Suzuki was registered as grey. The complainant’s grandmother’s evidence at the trial was that she was 70 years old and the trial took place about four years after the period particularised for the offences.
The appellant suffered a spiral fracture to the left humerus on 7 August 2020 and his left arm was in a cast or splint for most of the period that was particularised for the offending. From the evidence given by the appellant’s wife and his doctor, three different casts, splints or bandages were applied to the appellant’s left arm. The first was a plaster cast put on 18 days after the injury, but it was too tight and was removed at the hospital a week later. The photograph taken of the appellant on 1 September 2020 (exhibit 33D) shows him wearing a white splint over his upper left arm while using a sling. The photograph taken on 24 September 2020 (exhibit 33F) shows his left arm without any cast, splint or bandage. He then used a compression bandage that was skin coloured on his left arm while using the sling, as shown in exhibit 27D (which was a photograph of the appellant wearing the compression bandage and sling taken on 25 September 2020 where the compression bandage appears to cover something on the upper left arm as noted by the appellant’s doctor when reviewing this photograph). The appellant did accept in cross-examination that he wore the compression bandage which was brown and a sling but with no cast. A removable splint was then applied on 2 October 2020. The photograph on 7 October 2020 (exhibit 33I) shows the arm in a removable splint with Velcro straps that was marked “Orthopaedic Splint Outside”. The appellant’s doctor confirmed it was removable. Even though the appellant’s wife said it was not able to be taken off, she also said it was removed by her on 22 December 2020. It is that splint that was on the appellant’s arm in the photograph taken on 17 December 2020 (exhibit 33K). Sometimes the appellant would rest his left arm in a collar and cuff sling as shown in the photograph taken on 3 October 2020 (exhibit 33H). The appellant’s doctor explained that the purpose of the splint was to keep the arm in a fixed position. The appellant’s doctor’s notes for 5 November 2020 recorded there were signs that the fracture was beginning to heal and the notes for 4 February 2021 recorded that the fracture was fully healed. The appellant’s doctor’s opinion was that the fracture was “still quite fragile and still in the process of healing” between 5 November 2020 and 1 January 2021. The appellant’s wife cut the left sleeves out of the appellant’s shirts, as they did not fit over the splint.
The complainant’s evidence in her second interview was she did not see any marks or tattoos on the man. She did not refer to the splint or cast. The complainant was cross-examined during the s 21AK pre-recording of her evidence on her identification of the appellant. She said she saw the man clearly that day and saw both his arms. She was asked “Did both of the man’s arms look normal?” and responded affirmatively. She was then asked “And did you see anything unusual about the man’s arms?” and responded “No”. She did not remember which of her hands the man grabbed her with or which hand the man used to take hold of her hand. When the man pulled her by the shoulders to take her inside his house, he used one hand but she could not say which hand he used to grab her shoulder.
In the first interview, the complainant described that she got into the man’s house through a glass sliding door and the kitchen was right there and she described that there were two bedrooms and she was taken into one of the bedrooms. (It was of note that the glass sliding door did not face out towards the street.) During the second interview, when Detective MacRae asked the complainant about what the man looked like, she offered “he had a flower, there’s a sunflower”. In her pre-recorded evidence, the complainant said the flower was inside the unit and the photographs of the interior of the unit show an interior door with sunflowers on it. The complainant drew a diagram of the house (exhibit 6) that was broadly consistent with the photographs and walk-through video of the appellant’s house and the evidence led by the appellant in respect of the appearance of the house.
Directions on identification
In explaining to the jury how they assess evidence and take into account inconsistencies within a witness’ evidence and inconsistencies between the witness’ evidence and other evidence, the trial judge pointed out eight possible inconsistencies in respect of the complainant’s evidence. The trial judge dealt at length with each inconsistency. One of the inconsistencies related to the complainant’s description of the appellant:
“Another matter which you might consider as an inconsistency was her description. I will come to her description a little later on but she was asked in particular in cross-examination about the [appellant’s] arms. You may recall – and I will remind you a little later on – she gave a description of the [appellant] or the person who assaulted her, I should say, but she made no reference to the fact that there was anything unusual about [his] arms. Indeed, she was asked:
Did both of the man’s arms look normal?
She said, ‘Yep’:
Did you see anything unusual about the man’s arms?
She said, ‘No’.”
Shortly after dealing in the summing up with the inconsistencies in respect of the complainant’s evidence, the trial judge gave the specific directions on identification:
“Now, let me talk or turn now to the issues of identification and the photo board. The issue of identification is one for you to decide as a question of fact. The case against the [appellant] depends, to a significant degree, on the correctness of the visual identification of the [appellant], which the [appellant] just simply says is mistaken. I must therefore warn you of the special need for caution before convicting in reliance on the correctness of that identification. The reason for this is that it is quite possible for an honest witness to make a mistake in identification. Notorious miscarriages of justice have sometimes occurred in such situations.
A mistaken witness may nonetheless be convincing. Even a number of apparently convincing witnesses may all be mistaken. In general, the powers of observation or the recollection of observation are fallible, and the risk of mistake is especially great with fleeting encounters. You must examine carefully the circumstances in which the identification by the complainant was made. How long did she have the person said to be the [appellant] under observation? It might be from the evidence, perhaps, only a minute or two. At what distance and in what light? Was her observation impeded in any way? Had she seen the [appellant] before? Well, she says she had. She said she had seen him before, and you might infer that she knew who he was by sight. You may recall in her statement – her first statement – she said:
I’ve seen him lots of times before.
Of course, having seen him before, you must question or ponder whether it was occasionally and, if so, whether she had any special reason for remembering the [appellant]. You might also take into account the time that elapsed between the original observation and the subsequent identification to police and whether there was any material discrepancy between the first – between the description given to police by the complainant when she says she first saw him and later evidence. A matter I will turn to when I talk to the evidence as it comes.
The evidence of each individual witness, while important of itself, should not be regarded by you in isolation from other evidence adduced at the trial. Other evidence tending to implicate the [appellant] may be highly relevant and may justify a conviction, while the evidence of identification if it stood alone would be insufficient. Where evidence is given by a stranger to the [appellant] or, indeed, by a casual acquaintance, you should treat the evidence of identification with care. You should be cautious about concluding that identification has been established in such a case and be scrupulous to be satisfied, first, that the identifying witness is not only honest in her evidence but also accurate.
Now, the evidence which supports the visual identification of the [appellant] was as follows. She described him as having short black hair, white skin and being an adult. She was consistent in that description throughout. She did at a later point when asked to describe his height, and you might infer from what you saw in the interview that he was relatively tall; however, I remind you of the following specific weakness that appeared in that identification. In particular, the evidence that the [appellant] had a significant injury to his left arm. I will come a little later on to talk about the time period when this offending is likely to have occurred. Of course, it is entirely a matter for you.”
Even though when giving the warning about the identification evidence, the trial judge did not repeat the complainant’s evidence that both the man’s arms looked normal and she did not see anything unusual about the man’s arms, he had quoted that evidence when highlighting inconsistencies in respect of the complainant’s evidence. When referring to the evidence that the appellant had a significant injury to his left arm as being a “specific weakness” that appeared in the complainant’s identification of the appellant, there was therefore no ambiguity about the trial judge’s reference to the specific weakness in that aspect of the complainant’s identification evidence in relation to the appellant’s arms compared to the evidence adduced by the appellant of the state of his arm and its appearance during the relevant period.
After dealing with the likelihood that the offending conduct could be refined to a period of six weeks between 31 October and 12 December 2020, the trial judge then stated:
“So accepting a window of six weeks, she then can couple that with the evidence that you have before you of the recency of the injury that he had sustained, its presentation in various photographs and the like. Of course, as has been noted in argument already, the complainant’s evidence was that she made no observation about there being any injury to his arm.”
The appellant’s counsel was critical of the use of the phrase by the trial judge “as has been noted in argument already” as diminishing the effect of drawing the jury’s attention to the specific weakness of the complainant’s evidence that “she made no observation about there being any injury to his arm”. Although the trial judge referred to what had been said in argument, it is apparent from that part of the summing up dealing with the issue of identification that the trial judge was making the same point that had been made in argument that there was evidence as to the state of the appellant’s left arm which the complainant had not observed, as she agreed in cross-examination that his arms looked normal and she did not see anything unusual about them.
The trial judge pointed out the difficulties when identification is attempted with the aid of photographs “due to the various ways in which photographic representations differ from nature”. His Honour gave the example of the “two-dimensional and static quality” of photographs on the photoboard and that photographs are often in black and white in contrast with “a clear and well-lit picture of the subject”. He then stated:
“In this instance, you saw the [appellant] himself. He not only gave evidence but there are many photographs of him included in the exhibits before you. You can effect that comparison quite readily.”
The trial judge specifically warned the jury in relation to the photoboard identification that “identification through a photograph is likely to be less reliable than personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used, especially here, where there has been no other identification by the complainant”.
The trial judge noted that a complainant will be likely to assume that the photographs shown by the police are photographs of likely offenders and there may be a subconscious pressure to pick out any photograph of a suspect who looks like the offender. Even though Detective MacRae specifically instructed the complainant during the photoboard identification not to assume that the offender was in the photographs, it was appropriate for the jury to be given the warning about the subconscious pressure on the witness in viewing the photoboard.
As part of the direction given on identification, the trial judge then reminded the jury of other identification features that were relevant, namely the complainant’s evidence of the description and presentation of the appellant’s unit which they could compare to the numerous photographs that had been tendered into evidence of the unit and her evidence of the description of the appellant’s car. The trial judge referred to the prosecution’s submission that the complainant’s description of the interior of the appellant’s house supported her evidence on the basis that she could only have come to know those things, because she had been in the house. The trial judge then directed the jury:
“Now, as the fact of her being in the [appellant’s] house on the occasion alleged or the occasions she alleges that she was offended against is an indispensable link in the logical chain of events leading to conviction, these inferences that you are invited to draw from this corroborative evidence also must satisfy you of that presence beyond reasonable doubt.”
The trial judge also dealt with the other opportunities that the complainant may have had to view inside the appellant’s unit, such as if the complainant had knocked on the door for Halloween.
At the end of the specific directions given on identification, the trial judge emphasised the importance in the trial of the issue of the identity of the offender:
“To conclude that the [appellant] was the person who committed the offences upon the complainant of the acts complained of is, again, an indispensable link in a chain leading to conviction. So you must be satisfied of the identity of the [appellant] as the person who committed the acts complained of beyond reasonable doubt in order to convict.”
During the jury’s deliberations, the Court reconvened and the videos of the first and second interviews and the video of the photoboard viewing by the complainant were replayed for the jury. The trial judge gave further directions to the jury about not being overwhelmed by the material that they had last seen and reminded them of the other evidence in the case, including the cross-examination of the complainant and the defence evidence. Another direction was given in respect of the video relating to the photoboard identification:
“Can I remind you in particular in relation to the photoboard exhibit, remember the directions I gave you in respect of photoboard material however they’re produced and the risks that are associated with use of photoboard material particularly in the context of identification.”
The appellant relies on the requirements endorsed by the majority judgment in Domican v The Queen (1992) 173 CLR 555 at 561-562 for the directions that should be given by a trial judge in relation to identification evidence:
“Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.” (footnotes omitted)
In dealing with ground 1(a), it is apparent that the purpose of the trial judge’s drawing the jury’s attention to the comparison between the photograph of the appellant on the photoboard with the numerous photographs of him that were otherwise included in the exhibits and his appearance in person was to highlight the deficiency of the two-dimensional and static quality of the photoboard photograph. It was a warning by the trial judge of the deficiency in identification by reference to a photograph on a photoboard because of the limitations of such a photograph. It was not for the purpose that is submitted by the appellant to support ground 1(a) of inviting the jury to resolve the limitations inherent in the photoboard identification process by relying on their own observations of the appellant three years after the events and comparing them to the photographs of the appellant at the relevant time. The jury members were not being invited impermissibly to undertake for themselves a form of dock identification.
For the purpose of ground 1(b), the appellant lists seven matters which it is submitted were matters of significance which could reasonably be regarded as undermining the reliability of complainant’s identification and should have been the subject of express warning by the trial judge in the directions on the identification evidence. These matters were:
(i)the long delay between the offending and the photoboard;
(ii)the photoboard did not show the height of the persons depicted within it;
(iii)the failure of the complainant to notice anything unusual about the offender’s arms during the incident;
(iv)the failure of the complainant to notice anything unusual about the offender’s arms on any of the previous occasions that the complainant saw the offender;
(v)the complainant’s mistaken (at least) description of the appellant as about 35 years old by reference to her grandmother who was 75 years old when the appellant was 74 years old;
(vi)the persons in the photoboard were much older than the person described by the complainant; and
(vii)there was a risk that the complainant was selecting the only person she recognised on the photoboard as living in the street.
As the statements in Domican at 561-562 make clear, the sufficiency of the warning about the dangers of identification evidence must relate to the factors which affect the consideration of the identification evidence in the circumstances of the particular case and the warning must be “cogent and effective” and “must be appropriate to the circumstances of the case”.
Matters (i) and (ii) may have been relevant if the photoboard identification was the only means by which the complainant identified the appellant. The complainant had originally identified the offender to the police as the man who lived in the house in which the offending occurred which house she identified for the police on 21 March 2021 and that she knew what the man looked like, because she had seen him prior to the incident. It was therefore not a case where the complainant made the photoboard identification by reference only to a fleeting glimpse of the offender at the time of the offending conduct. For the same reason, the fact that the photoboard did not show the height of the persons whose photographs were on the board was not a matter that required any specific comment by the trial judge, as the complainant was selecting the photograph of the man she was familiar with and someone who lived in the same street at the time of the offences and who she had already identified by reference to his address. It was therefore not necessary for the trial judge to refer specifically to the complainant’s evidence about, and demonstration of, the height of the appellant, when dealing with the photoboard identification. In any case, as set out in the lengthy quote at [16] above from the trial judge’s specific directions on identification, the trial judge expressly referred to “the time that elapsed between the original observation and the subsequent identification to police and whether there was any material discrepancy between … the description given to police by the complainant when she says she first saw him and later evidence”.
Matter (iii) was the subject of the specific directions on identification, as explained in [19] above. It was unnecessary for the trial judge to direct on matter (iv), as the complainant was not asked whether she noticed anything unusual about the appellant on the previous occasions that she said she had seen him. With respect to matter (v), the trial judge did not expressly identify the complainant’s mistaken estimate of the appellant’s age as 35 years old, when he was 74 years old, in the specific directions on identification. The complainant did identify the appellant as an adult with a wife and for the same reason that matters (i) and (ii) have less relevance because of the other means by which the complainant identified the offender to the police as the man who lived in the house which she identified as the place where the offending occurred, the omission to refer expressly to that aspect of the complainant’s identification evidence in the warning about the dangers of identification evidence is insignificant. Commonsense also suggests that the estimate by a seven year old of the age of an adult would not be anything more than a guess. Matter (vi) also has little relevance in the circumstances of the case, because of the other means by which the complainant was able to identify the offender, and assumes that the complainant as a seven year old was able to estimate the age of her offender apart from identifying he was an adult with a wife. With respect to matter (vii), the trial judge did remind the jury, when giving the warning about the identification evidence, that the complainant said that she had seen the appellant “lots of times before”.
The significant aspect of identification in issue at the trial was the appellant’s capacity to commit the offence because of the injury to his left arm and his presentation based on the likelihood of his arm being in a cast, splint or bandage or of his using a sling at the date of the offences. The trial judge had summed up the inconsistencies in the complainant’s evidence at length before proceeding to give the specific direction on the dangers of identification evidence. In the context of the summing up and the issues at the trial, the trial judge’s specific direction on the identification evidence was sufficient to draw the jury’s attention to the weaknesses in the identification evidence and particularly the failure of the complainant to observe the appellant’s left arm injury and that she stated that his arms were normal. The appellant does not succeed in showing there was any relevant deficiency in the directions given by the trial judge on the weaknesses in the identification evidence.
Sexual interest direction
Ground 2 is framed in terms of a miscarriage of justice, as during the trial the prosecutor asked the trial judge to give a sexual interest direction and the appellant’s trial counsel did not argue against that direction being given.
After giving the separate charges direction and the Markuleski direction, the direction by the trial judge given in reliance on R v Bauer (a pseudonym) (2018) 266 CLR 56 at [50] followed:
“Now, here, as I said, the [appellant] is charged with the three offences on the indictment but the Crown also relies upon the evidence of each charged act as evidence that the [appellant] had a sexual interest in the complainant and was willing to give effect to that interest. If you are satisfied beyond reasonable doubt of a particular offence, that finding may make it more likely that the [appellant] committed the other offences charged on the indictment.
If you are satisfied beyond reasonable doubt that the [appellant] committed a particular offence, then you must consider whether you can conclude that the [appellant] had a sexual interest in the complainant. If you are so satisfied, you may use that finding in considering whether the [appellant] committed the other offences charged. The evidence of each charged act must not be used in any other way. It would be completely wrong to reason that because the [appellant] committed one offence, he is generally a person of bad character, and for that reason must have committed the other offences.
If based upon a conclusion that the [appellant] is guilty of a particular offence, you are satisfied that the [appellant] had a sexual interest in the complainant, it does not inevitably follow you would find him guilty of the other counts on the indictment. You must always decide whether, having regard to the evidence relevant to a particular count, whether the offence charged has been established beyond reasonable doubt.”
The appellant submits that there was no scope for a sexual interest direction to be given, as “it was illogical in the circumstance of a single occasion of highly opportunistic offending over a very short period of time that proof of one count could provide evidence of sexual interest which was admissible in proof of the other counts”. The appellant also submitted that the giving of the sexual interest direction immediately following the Markuleski direction had the direct effect of rendering the Markuleski direction of no, or very limited, effect.
The High Court in Bauer clarified the admissibility and use of an accused person’s charged and uncharged acts in proof of sexual offences which the accused is alleged to have committed against the relevant complainant. The Court stated at [49]:
“… it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.” (footnote omitted)
The Court then stated (at [50]-[51]):
“Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the ‘very high probative value’ of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person…” (footnotes omitted)
Relevantly, the Court then observed in relation to a single complainant sexual offences case (at [60]):
“By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. As was established in HML and has since been applied in Victoria under s 97 of the Evidence Act in JLS, MR, PCR and Gentry, and was recognised, too, in Velkoski, evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.”
The issue on ground 2 is whether Bauer permitted a sexual interest direction to be given on the facts of this case. The appellant relies on the complainant’s evidence as to the very short time that was involved, as the complainant’s estimate was that she was in the appellant’s yard for 30 seconds and that, when she was in the appellant’s bedroom, it took about 30 seconds for him to pull down her pants and commit the two sexual acts against her.
Bauer contemplates (at [50]) that where similar sexual offences against a complainant have been committed by an accused and are charged on a single indictment, the evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and does not limit the timing of the charged acts to discrete occasions separated by time or place. The offending conduct for the three counts was sequential and in quick succession but separately identifiable. Count 1 was committed before the complainant was taken into the appellant’s bedroom. Count 2 involved the appellant’s licking the complainant’s vagina and the conduct that constituted count 3 immediately followed when the appellant put his finger or fingers in the complainant’s vagina. To convict the appellant of count 1, the jury had to be satisfied that the appellant took the complainant from the street and into the bedroom of his unit for the purpose of unlawfully and indecently dealing with her. In considering the appellant’s purpose at the time that offence was committed, the sexual interest in the complainant that was proved by the conduct that was the subject of each of counts 2 and 3 (if the jury was satisfied beyond reasonable doubt on the complainant’s evidence that the appellant committed the sexual acts described by the complainant) was therefore relevant circumstantial evidence to the proof of the appellant’s purpose in count 1. Depending on which order the jury considered the counts, if the jury was otherwise satisfied beyond reasonable doubt of the appellant’s purpose in taking the complainant from the street into the bedroom of his unit to indecently deal with her, that was circumstantial evidence that supported the evidence given by the complainant of the offending committed against her that was respectively the subject of counts 2 and 3 and was sexual offending committed in two distinct ways. It was appropriate that the trial judge directed the jury in accordance with Bauer in relation to the three offences to ensure that the jury used a finding on any one of the charges that showed the sexual interest by the appellant in the complainant in a permissible way in the proof of either of the other counts.
Directions are given by a trial judge to cover all possible processes of reasoning undertaken by the jury in the deliberations which depend on the findings made by the jury. Because there were three separate counts, it was essential that a Markuleski direction was given. The Bauer direction was given to cover a different process of reasoning by the jury and facilitate the jury’s use of a finding on one count that the appellant had a sexual interest in the complainant that could be used as circumstantial evidence in the jury’s consideration of the other counts. The Bauer direction also ensured that the jury did not use a finding on one count that the appellant had a sexual interest in the complainant in an impermissible way. Both Markuleski and Bauer directions were required to cover the possible outcomes of the jury’s deliberations. There was no error in the giving of the Bauer direction by the trial judge and the terms in which it was given were appropriate in the circumstances of the trial.
Order
The appellant has failed to establish any of the grounds of appeal. It follows that the order which should be made is: Appeal dismissed.
0
2
0