R v Douglas

Case [2019] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v Douglas [2019] QCA 215

PARTIES:

R
v
DOUGLAS, Dennis Norman
(applicant)

FILE NO/S:

CA No 213 of 2018
DC No 1646 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 26 July 2018 (Rafter SC DCJ)

DELIVERED ON:

15 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of eight counts of child sexual offences – where the appellant appeals his convictions on the ground that the trial judge failed to give an adequate Longman direction – where the offending conduct dated back to when the complainant was ten years old – where the complaint was first made when the complainant was almost 17 – where the trial judge acknowledged the passing of time and directed the jury that they should “carefully scrutinise the complainant’s evidence before arriving at a conclusion of guilt” – where the trial judge did not use the words “dangerous to convict” in accordance with the Longman direction articulated in the Benchbook – whether the direction given by the trial judge was inadequate such that it caused a miscarriage of justice

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, applied
R v MBX[2014] 1 Qd R 438; [2013] QCA 214, considered
R v MCD[2014] QCA 326, considered
R v MCN[2018] QCA 101, considered
R v Said [2009] VSCA 244, considered

COUNSEL:

P J Callaghan SC for the appellant
C N Marco for the respondent

SOLICITORS:

Jasper Fogerty Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with my colleagues’ conclusion that the appellant has not established his contention that a miscarriage of justice was occasioned by the absence from the trial judge’s “Longman[1] warning” of the expression “dangerous to convict”.

  2. The appellants’ core proposition of law is that, where circumstances of the general kind described in Longman exist, a trial judge’s omission to use the expression “dangerous to convict” is a misdirection unless the trial judge articulates the compelling circumstances which justify that expression not being used.  That proposition is based upon a statement by Morrison JA (with whose reasons the President and Atkinson J agreed) in R v MCN[2] that “the Bench Book directions should be followed unless there are compelling reasons not to do so”.  That this is merely a counsel of prudence, rather than a proposition of law, is demonstrated by two matters.  First, although the expression “dangerous to convict” was not used by the trial judge in MCN, Morrison JA held that, “[b]earing in…

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R v Douglas [2019] QCA 215
Case
[2019] QCA 215
Decision Date

CaseChat Overview and Summary

In the case of R v Douglas, the appellant, Douglas, was convicted of eight counts of child sexual offences and sought to appeal the convictions on the basis that the trial judge failed to give an adequate Longman direction to the jury. The complainant's evidence indicated that the offending conduct dated back to when the complainant was ten years old, with the complaint only being made when the complainant was almost 17 years old. The trial judge acknowledged the passing of time and directed the jury to carefully scrutinise the complainant's evidence before arriving at a conclusion of guilt, but did not use the words "dangerous to convict" in accordance with the Longman direction.

The legal issue for the court to decide was whether the trial judge's direction to the jury was inadequate, such that it caused a miscarriage of justice. The Longman direction is a warning to the jury that it would be dangerous to convict on the complainant's evidence alone unless the jury, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, are satisfied beyond reasonable doubt of its truth and accuracy. The court considered the authorities and relevant factors, including the existence of corroboration or support for the complainant's evidence, the length of the delay, the age of the complainant at the time of the offending, and the compliance of the warning otherwise given by the trial judge with Longman.

The court concluded that the trial judge's direction was not inadequate and did not cause a miscarriage of justice. The court found that the risk of a miscarriage of justice identified in Longman is the loss of the means of testing the allegations which would otherwise have been open, and that the Longman direction addresses that risk by means of a warning to which the jury are told to pay heed, rather than a mere comment. The court also found that the warning given by the trial judge was otherwise compliant with Longman independent of the failure to use the words "dangerous to convict". The appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals his convictions on the sole ground that the trial judge failed to adequately direct the jury in terms of the Longman direction[4] and, specifically, that his Honour did not use the words “dangerous to convict” in directing the jury.Evidence[4]Longman v The Queen (1989) 168 CLR 79.The complainant’s evidence The complainant came to know the appellant because his mother was a close friend of the appellant’s sister. The appellant would visit his family from time to time with his sister.[5] There would be general catch ups and events such as Riverfire or New Year’s Eve.[6] Until the complainant was 11, his family lived at Albany Creek, after which they moved to a house with a pool at The Gap.[7][5]AB at 435.11-13.[6]AB at 434.7-10.[7]AB at 224. There were many visits to the Albany Creek residence by the appellant, who showed an increasing interest in the complainant. This began with expressions of general interest in the complainant’s life and progressed to the point where the appellant would come over to the then 10 year old complainant, when his was on the couch watching television, and place a blanket over both of them, then rub the complainant’s leg and progressed to touching his genitalia, which happened “a fair few” times.[8] The complainant described the appellant “slipping his hand underneath my pants and underwear and resting his hand on my genitalia”. He could not recall the clothing he was wearing when the touching occurred.[9] Over the following five years, there were “many occasions where [the appellant] would come over and engage ... in matters such as that”.[10][8]AB at 434.24-47.[9]AB at 435.[10]AB at 436.45-437.1. After the family moved to The Gap, the appellant’s conduct “escalated” to masturbating the complainant and performing oral sex. The masturbation occurred on a “very, very large amount” of occasions, a “minimum once a fortnight”, including times when the appellant would be asked to babysit.[11] It would occur in the bedroom, the living room and “sometimes even the pool”. The complainant said that the appellant performed oral sex on him on “[a]t least 15” different occasions.[12] There were “many instances” of the appellant continuing such conduct.[13][11]AB at 437.[12]AB at 438.[13]AB at 444. The first occasion upon which the complainant made these allegations against the appellant was at a school retreat in July 2013. They arose during a session at which students were encouraged to talk about personal issues.[14][14]AB at 319.25-31. The following eight counts were identified.Count 1 Count 1 related to “[o]ne overwhelming memory”[15] of conduct of a sexual nature. It concerned the complainant’s memory of the first time the appellant touched his genitalia.[16] This occurred at the Albany Creek home when the complainant was around 10 years old. The appellant sat on the couch beside the complainant. The appellant slipped his hands underneath his clothing and cupped his penis with his hands. The complainant could not recall how long the appellant did that. The complainant felt “a little confronted” but the appellant assured him that it was “completely normal”. The complainant did not say anything to anyone about that incident because he was somewhat embarrassed and had been assured it was normal.[17] Conduct of this kind continued for about five years.[15]AB at 461.11-12.[16]AB at 435.4-10.[17]AB at 435-436.Counts 2, 3 and 4

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent submitted that there was ample authority to support the proposition that a trial judge does not need to direct a jury that it would be “dangerous to convict” in all cases where a Longman direction is given. The authorities suggest that relevant considerations include the existence of corroboration or support for the complainant’s evidence, the length of the delay, the age of the complainant at the time of the offending and the compliance of the warning otherwise given by the trial judge with Longman independent of the failure to use the words “dangerous to convict”.Consideration The risk of a miscarriage of justice identified in Longman is that the consequence of delay in prosecution in testing adequately the complainant’s allegations may not be apparent to a jury. The Longman direction addresses that risk by means of a warning to which the jury are told to pay heed, rather than a mere comment. The risk of which the jury is required to be warned is the loss of the means of testing the allegations which would otherwise have been open. These include adequately testing the complainant’s recollection through the possibility of exploring in detail the alleged circumstances of the offending and adducing evidence against the complainant’s account or confirming the accused’s denial. In Longman, it was held by Brennan, Dawson and Toohey JJ that the jury should have been told that:[122]“…as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.”[122](1989) 168 CLR 79 at 91. The Longman direction drafted in Direction No 69 of the Benchbook is as follows:“The complainant’s long delay in reporting the incident she says happened on (insert date) has an important consequence: her evidence cannot be adequately tested or met after the passage of so many years, the defendant having lost by reason of that delay means of testing, and meeting, her allegations that would otherwise have been available.By the delay, the defendant has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been made known to the defendant soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to look to call at a trial, evidence throwing doubt on the complainant’s story [or confirming the defendant’s denial] – opportunities lost by the delay.The fairness of the trial (as the proper way to prove or challenge the accusation) has necessarily been impaired by the long delay.So I warn you that it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.” (footnotes omitted)