R v Durham

[2000] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v Durham  [2000] QCA 88

PARTIES:

R
v
DURHAM, Reginald Basil
(appellant)

FILE NO/S:

CA No 349 of 1999
DC No 1273 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

21 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2000

JUDGES:

Pincus and McPherson JJA, and Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Appeal allowed.
2.  Conviction set aside. 
3.  New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – EXPRESSION OF JUDGE'S OWN OPINION – GENERALLY

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – whether judge's summing‑up more favourable to Crown than defence

Criminal Code s 132

B v R (1992) 175 CLR 599, considered
Edwards v The Queen (1993) 178 CLR 193, mentioned
Green (1971) 126 CLR 28, discussed
Perera (1986) 1 Qd R 211, considered
Webb v The Queen (1994) 181 CLR 41, considered

COUNSEL:

Mr R A Mulholland QC for the appellant
Mr M J Byrne QC for the respondent

SOLICITORS:

Rees R & Sydney Jones (Rockhampton) for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. PINCUS JA:  The appellant, now aged 83, was convicted of the rape of the complainant, a girl then aged 14 residing in a childrens' home, Neerkol, the rape having been allegedly committed 33 years ago.  The conviction the subject of this appeal was entered after a trial which took place in September 1999;  there had been a previous trial, in May 1999, resulting in a jury disagreement.  Now the appellant argues that the conviction should be set aside on the ground that he did not receive a fair trial.

1. The complainant's evidence was that she was raped by the appellant, a priest, after having been called by the appellant into the priest's residence in the vicinity of the childrens' home.  The appellant did not give evidence at this trial in contradiction of that given by the complainant but, for reasons which need not be explored, evidence given by the appellant at his first trial in denial of the rape was read out to the jury. 

1. Two factual issues which were litigated were the drinking habits of the appellant and whether the complainant had promptly complained about the rape, as she said she did, to a nun, Sister Regis.  The relevance of the first issue was that the complainant said she smelt whisky and beer on the appellant's breath at the time of the rape, but at the first trial the appellant gave evidence that he then drank nothing but a little sacramental wine and drank neither whisky nor beer.  The Crown called evidence designed to show that the appellant lied about that point at the first trial and no complaint is made about that having been done.  As to the second issue I have mentioned, the complainant gave evidence that she told Sister Regis of the rape immediately after it occurred and that she did so in the main dining room of the children's home.  Her evidence was that Sister Regis pushed her out of the dining room, called her a liar and then treated her roughly and unkindly in ways which she specified.  Sister Regis, in her evidence, did not accept these allegations.

1. The factual issues before the jury were not complex, in a case where the evidence was in fairly short compass.  The critical point was whether the jury believed the complainant;  no-one other than the complainant gave any evidence in direct support of her allegation of a rape, many years ago, but her evidence was not contradicted as to the rape, by any witness at this trial.  Her evidence that the rape occurred was, as I have mentioned, denied only by evidence given by the appellant in the first trial.  In assessing the complainant's credit, the conflict between the opposed versions of events given by the complainant and by Sister Regis would, one would have expected, have been regarded by the jury as important and it was so treated by the learned primary judge.

1. The summing-up was an elaborate one occupying 80 pages of transcript, the evidence being 100 pages in length.  The judge repeatedly made general observations of an uncontroversial kind, to the effect that the jury had to approach the evidence carefully and dispassionately, that all questions of fact were for them and that they did not have to take notice of the judge's observations on the facts;  he also, as a result of the gap in time between the alleged rape and the complaint to the police (in 1996), gave a direction in accordance with Longman (1989) 168 CLR 79. No attack is made on the judge's treatment of those matters. But Mr Mulholland QC for the appellant says that the summing-up was unfair because it laid emphasis upon the possibility that there was what the judge described as a "cover-up" of the offence by Church authorities and because the judge advanced, with the authority of his office, a number of specific arguments in favour of acceptance of the Crown case and rejection of that of the defence, without finding it necessary to put forward, with the authority of his office, any arguments having a contrary tendency.

1. Consideration of these issues is complicated by the fact that it is on some occasions not perfectly clear whether the judge, in making remarks unfavourable to the defence, was in fact just attempting to reiterate or expand upon points made by the Crown in address.  But it does not appear to me that this is a point of great significance in the disposition of the appeal;  that is so because the great bulk of the directions complained of were not stated by the learned primary judge to be merely Crown submissions and the jury might well have taken them to be indications of the judge's opinion.

1. I do not propose to explain in full the allegedly tendentious comments in favour of the Crown;  as we were reminded, the propriety of the summing-up can be determined only by reading it as a whole, including the substantial quantity of perfectly valid and orthodox observations which are to be found in the record.  But some examples of what is said to amount, taken as a whole, to unfairness must be given.

1. The jury was told by the judge that the allegations were serious and, in discussing that, said that if the jury acted on the complainant's evidence:

"... [T]here has been that most serious of concerns, a cover-up, a cover‑up by a number of people associated with the church on the complainant's evidence, and if you act on that and look at the other evidence in the case, has there been a disinclination by those associated with the church to say anything favourable to the complainant or the Crown case.

Have you perceived an attitude to jump at an opportunity to attenuate, weaken, destroy the complainant's evidence;  to blacken her at any opportunity ...
...
... a serious question will be asked of you:  did Sister Mary (sic) Francis Regis, who I may refer to as the Sister, did you form a view on her that she would say whatever was necessary to help the accused, volunteer something that would blacken the complainant.  You will consider when referring to the evidence was it her real recollection or was it something that was just too conveniently dropped in to volunteer that the complainant was allegedly a schemer, that she has that specific recollection.  Even with the Bishop of Townsville, did you get the impression – and this is a strong statement to make, members of the jury, I am fully aware of that;  I am not going to side-step any difficult question in this case one way or another – it was like drawing teeth to try to get him to make any comment that might have been adverse to the accused".

The parties to the cover-up mentioned by the judge were not precisely defined, but the reference to the disinclination of "those associated with the Church to say anything favourable to the complainant" implies that the participants were witnesses associated with the Church, the only two in that category being Sister Regis and the Bishop.  The judge's remark must have given the jury the impression that the Bishop was thought to be a very partial witness and that his attitude might have been part of the cover-up.  The attack on the Bishop's credit was, however, odd in one respect;  his evidence was, as the judge recognised, essentially neutral.

1. Shortly after the parts quoted above the judge's summing-up included:

"The complainant in this case, members of the jury, has said there was a very serious offence of rape and there was a cover-up on (sic) serious and very disturbing proportions".

This appears to give the cover-up spoken of a different scope, because the complainant had not given evidence of any events which could be called a cover‑up, except in her evidence about the actions of Sister Regis and those of a priest to whom she complained about the rape, in 1996;  she said the priest told her she was confused and that the appellant was not at Neerkol at the relevant time.

1. The judge went on to discuss the complainant's deprived and abused childhood and added –

"When she went into Neerkol, members of the jury, would you have had a person who you might have understood might be a somewhat or very much so a vulnerable person;  a person who you might think would have very little or no self-esteem;  a person with not overly-much confidence and going into Neerkol who might be the people that she might look to to replace her mother for the tender, loving care that every child deserves and should have;  who is the person or persons she might trust".

If when she entered Neerkol the complainant had the characteristics mentioned, that would make a rape so much more damaging to her;  but her being vulnerable and so forth could hardly help the court towards a conclusion on the only issue which had to be considered at that stage, which was whether the rape occurred, rather than how damaging it would have been if it occurred.

1. When dealing with the evidence of Sister Regis – who was called by the Crown  although plainly of no assistance to the Crown case – the judge emphasised the Crown's disadvantage in not being able to cross-examine her, concluding by saying:

"She was in fact cross-examined by defence counsel, but you might have thought that just about everything she had to say was favourable to the defence and she did not mention too much at all, if anything, that was favourable to the complainant.  You have seen her give evidence;  you have not seen her tested by Crown counsel, because Crown counsel was not permitted to".

1. The complainant's evidence about the rape included statements that she saw a rose when she was walking past the presbytery before being called in by the appellant, that her mother used to grow lots of roses and that she looked at the rose but was not going to steal it.  Then the appellant came out on the front step and yelled, "Come up here" angrily.  This evidence made the existence or non-existence of a rose outside the presbytery of little significance, but Sister Regis in her evidence firmly denied that there was any rose in front of the presbytery.  The judge commented adversely upon that evidence, on the basis that the jury could consider whether the Sister could have had any such reason to remember whether or not there was a rose there as to justify a dogmatic denial.  In contrast, the judge said:

"Did the complainant have a very real reason to notice a rose because it touched a very soft spot, a very tender spot?  Her mother used to grow roses and that was a reminder of her mother.  She said, 'I saw a rose;  I just looked at this rose, and my mother used to grow roses'.

And she said the accused came to the front step of the presbytery and said, 'Come up here' in a very rough sort of voice.  You might have inferred that this rough voice which was not his usual sort of voice – he was usually a jolly sort of person the complainant said, was that seeing him with the rose he might have, in her mind, 'He might think I'm going to take this rose' - steal the rose".

1. After discussing the complainant's evidence further, the judge quoted what she had said about events after her complaint to Sister Regis and added:

"Members of the jury when you are asked if an evaluating question is a credibility or reliability, if that is made up would you suggest that that might be by someone who is rather subtle of wit, that – wit meaning intelligence, that not – 'You don't say terrible lies, say terrible things about the priest doing things that he didn't do', but it was 'You're not supposed to go into that presbytery'". 

The implication appeared to be that it would have required subtle intelligence to devise the evidence just recounted by his Honour, if it were untrue.  Similarly, after explaining more of the complainant's evidence his Honour said:

"Now, members of the jury you might ask yourself with that detail does that give you any help in relation to whether this is a pretty cunning person that's making up this detailed story, has a vivid imagination or has psychopathically convinced herself that this all happened, does it have the ring of truth about it?  Remembering the accused doesn't have to prove or disprove anything on the high test I've told you the Crown has to prove his guilt beyond reasonable doubt".

The judge here contrasts the possibility the complainant is pretty cunning or has a vivid imagination or is a psychopath – on the one hand – with the assessment that the evidence has the ring of truth;  this would tend if heeded by the jury to move them towards acceptance of the complainant's version.  Pointed comments on specific pieces of evidence of this kind are frequently, one might say routinely, interlarded with general observations illustrated by the second of the sentences just quoted, beginning "Remembering ... ".

1. The complainant's evidence was that after the rape she was given some "white stuff" to drink by Sister Regis and that she remembered nothing after that until she was in Rockhampton Base Hospital, where she was an in-patient for some days.  There was also this evidence:

"When you were at hospital was there anyone with you?-- There was a nun.
Okay?--  There was always a nun". 

The judge mentioned this evidence and then asked the jury to consider why that would be so.  He went on –

"There are possibilities, to stop her running away or is it to stop her talking to someone, to stop her repeating this scandalous allegation that the priest had raped her.  Was it because she had a particular illness that required – they wanted a nun there all the time.  If it was there, members of the jury, you might just ask yourself, 'What possible reason could there – for her to be there with a nun'".

This may be part of the "cover-up" theory.  In my view the jury might have thought there was a degree of improbability about the proposition that a nun was on guard (it is unclear, from the evidence, whether she was alleged to be inside or outside the complainant's hospital room) 24 hours a day for some days, to ensure that nothing was said about the rape.  Perhaps the complainant did not intend the word "always" to be taken too literally.

1. The judge spoke of the complainant's evidence that the reason why she did not pursue her complaint, beyond that made to Sister Regis, was that she was being threatened with being sent either to Boys Town or to a mental institution.  Then there was an adjournment, when the judge discussed with the jury the absence of evidence of fresh complaint, other than to Sister Regis, in a way which implied that that was exactly what one would have expected.  His Honour said:

"Can you think of a person in the world other than a priest or nun, a minister of religion to whom any parent would confidently think they could entrust their children.  Would not the complainant think the accused was the one person whom she could trust.  Was the accused in a position of manifest superiority and if you are considering accepting the complainant's evidence you will consider the behaviour in that situation.
That if she did, in fact, complain to Sister Mary (sic) Francis Regis, would you have expected her to complain again at the hospital, particularly if there was a nun present, or would the doctors, when they had their examinations, and checking her in relation to the gastroenteritis, would a conscientious doctor do more than necessary for an efficient examination of each patient in a public hospital – would she be likely to raise the topic and say something that would result in a genital examination".

1. At that point the judge moved to a lengthy explanation of some contentions made by the defence, either in submissions or in cross-examination.  Counsel for the respondent was invited, before us, to point to any passage in which his Honour made an observation commending to the jury, as a point having merit, in the judge's opinion, any factual consideration favourable to the defence.  None was referred to.  It is true that specific criticisms of the Crown case based on factual considerations are included in the summing-up, but each one of them, as far as I can see, is put forward in a context which makes it quite clear the judge is merely recounting defence counsel's arguments.  In some instances the judge mentioned considerations against a particular defence submission which his Honour repeated in the summing‑up, an example being the following.  With respect to the submission, which his Honour said was made by the defence, that the act of rape as alleged would have been a noisy one and would therefore have been a "particularly audacious activity", his Honour remarked:

"What are the possible considerations on that, to use the vernacular, in 1966 with a priest in that situation regard himself as almost sacrosanct as far as he could do what he wanted to.  No one would interfere and would turn a blind eye or dare question him;  that where the presbytery was and if by any chance anyone outside heard it would they want to question or dare question because if it is in the presbytery and the priest, would there be any such questioning.  The defence submits that it is highly improbable that you would get such an audacious act such as that described.
There is another matter to consider:  that if the accused is the sort of person who would commit this most serious breach of trust on this vulnerable little girl and if he were adversely affected by liquor might there be a certain devil may care, so to speak, attitude?".

The first, second and fourth sentences are so expressed as to give the impression that the judge is telling the jury his own opinion about the point;  in contrast the third, putting the opposite view, begins, "The defence submits ...".

1. Next the judge turned to some submissions made by the Crown.  In the course of a substantial discussion of the evidence of Sister Regis, the judge made or implied a number of points against her, without suggesting that they were other than his own opinion.  The passages in question are on pages 195, 196, 198 and 199.  A sentence relating to Sister Regis, an elderly person said not to be well, will suffice to illustrate the line taken:

"As she said, her memory's not really affected, did you get the impression, it's entirely a matter for you, that her memory was such that it was pretty sharp and pretty incisive on the matters that she tuned into that could help the accused and equally to arguably blacken the complainant or to attenuate her story".

1. The remainder of the summing-up included a lengthy recounting of defence submissions, no instance of which, I believe, is accompanied by an indication that the judge himself thought that the submission, insofar as it referred to specific factual points, had any substance.

1. After the verdict, submissions on sentence were taken and the judge set out his view of the case, in sentencing the appellant.  It is clear that his Honour's opinion was strongly against the defence and in favour of the theory of a most lamentable cover‑up by "the Church".  The judge's description of the appellant's character and actions included the expressions: 

"bad man indeed ... evil man ... blinding hypocrisy ... gross and outrageous ... nauseating and reprehensible ... primitive and revolting ...".

The judge's criticism was not confined to the appellant.  His Honour referred to the:

"... accelerating and long-term cover-up ... involving persons as dishonest as yourself and arguably as corrupt as yourself ... cruel, barbaric, insensitive treatment by manifestly unsuitable persons at Neerkol ... the reprehensible attitude of the Church to date in trying to squash the complaint and to cover it up ... the lies, stonewalling, stubbornness and obstructionism of Church representatives ...".

Sister Regis was described as an "unashamed and unabashed liar".  As to the Bishop of Townsville - whose evidence was regarded by the judge as "probably pretty well neutral" – the judge referred to his "unwillingness to give truthful evidence" and said that his evidence and that of Sister Regis "afforded yet another sorry chapter in the Church's seeming determination that justice not be done in this matter".

1. These observations could not have influenced the verdict, because they came after it.  They are relevant only insofar as they may throw light upon the impression which the judge's remarks favourable to the Crown, recorded only in print, may have made on the jury, because of the spirit which animated them.

1. It is clear that the trial judge is entitled to make pointed observations on the facts, but an accused is always entitled to a fair summing-up:  Green (1971) 126 CLR 28 at 34. This case was one in which it was particularly necessary to demonstrate an impartial and objective approach, in view of the possibility that religious divisions or animosity might affect the jury's consideration of the case; " ... the risk of prejudice ... was high" (Green at 34). There has been for some years media discussion of allegations of sexual abuse of the kind in issue here and allegations of lack of candour on the part of Church authorities in dealing with them.

1. This is not to say, of course, that the judge was precluded from criticising defence contentions or raising those favourable to the prosecution.  The question is:  was the summing-up such as to make an observer think that the judge was displaying a too partial attitude, one too favourable to the Crown case? 

1. While I recognise that other minds might reach a different view, I accept the argument for the appellant;  that is, I have reached the regrettable conclusion that the summing-up was lacking in judicial balance:  Perera (1986) 1 Qd R 211. In arriving at that view I have not overlooked that the complainant's evidence as to the occurrence of the rape was not contradicted by anything said in the witness box in this trial, that most of the complainant's version of events reads well and that much of what the judge said in support of the Crown case has substance.

1. Mr Mulholland QC advanced strong criticism of the judge's emphasis on the "cover‑up" theory.  The judge's suggestion that Sister Regis was deliberately covering-up a crime assumes that she knew one had occurred;  it is quite possible that she genuinely believed the contrary and that her evidence, insofar as it slanted in favour of the defence, was so slanted because she thought that otherwise an injustice might be done to the appellant.  The proposition that the Bishop was involved in a deliberate cover-up, by the way he gave his evidence, was not put forward by the Crown, but only by the judge.  More generally, I agree with the appellant's contention that judicial directions on the question of a Church cover-up were unwarranted and could have distracted the jury from the essential factual issue.  But if this were the only defect in the summing-up, I would have been inclined to let the verdict stand. 

1. It is in the highest degree unfortunate that the result of the judge's errors in directing the jury is that, in my opinion, the verdict must be set aside and a third trial ordered;  there have been, as I have mentioned, two trials of this matter.  The case illustrates the unwisdom, in the trial of an alleged offence of an abhorrent character, of a judicial approach calculated to urge the jury towards what the judge regards as the correct verdict, at the cost of creating an impression that the administration of criminal justice in this State is not carried out impartially.

1. I would allow the appeal, set aside the conviction and order a new trial.

1. McPHERSON JA: I agree with the reasons of Pincus JA for allowing this appeal against conviction and ordering a new trial. Because of the seriousness of that  course, I will add some brief remarks of my own.

1. In summing up, the trial judge invited the jury to consider whether there might not have been a "cover-up" by the Church or persons associated with it. The expression "cover-up" in this context can only mean suppression or concealment of evidence known to be or suspected of being true. Because the Church in question is such a large organisation the judge can, in the context of that statement, only have been intending to refer to persons in some way "associated" both with the Church and with the complainant's past efforts to have her complaints about it taken seriously. On any view, it must include at the very least Sister Marie Regis; presumably also the accused himself; possibly the Bishop who gave some evidence about the accused's drinking habits; and perhaps also the persons or persons in the Church in Western Australia whom the complainant said she consulted at a very much more recent date.  If it was no more than one or some of these persons, it is difficult to be sure which of them it was.  They were not identified either at all or with any real degree of specificity in the course of the summing up.

1. A cover-up by two or more of those persons to suppress or conceal evidence would have amounted to a conspiracy and one that, more likely than not, would have been criminal in character as involving an attempt to obstruct, pervert or defeat the course of justice contrary to s 132 of the Criminal Code. There are some well known principles applicable to proof of a charge of conspiracy and to summings up with respect to it. None was given here. The evidence relevant to the possible existence of the conspiracy was never identified as such, nor was its relevance explained to the jury, whether with or without identifying the actual or potential parties to it. It was put to the jury essentially in the general and imprecise form that "there has been that most serious of concerns, a cover‑up by a number of people associated with the Church, on the complainant's evidence …".

1. It is necessary to recall that the matter being tried was not a charge of  pre-trial conspiracy at all, but of rape in 1966 or 1967, as to which the only real issue at the trial in 1999 was whether the complainant's account of events, supported as it was to some extent by the evidence of another ward of the children's home at the time, was reliable. Whether or not it was reliable was readily capable of being dealt with in summing up without  supposing the existence of a conspiracy on the part of other witnesses, including Sister Marie Regis, to suppress or conceal the truth. People naturally tend to defend institutions to which they belong and which they value, but without necessarily conspiring with others to suppress or conceal the truth, or committing perjury. To invite the jury to consider whether or not there had been a cover-up therefore represented a quite unnecessary diversion of attention away from the question the jury were empanelled to try.  Mr Mulholland QC was, in my opinion, correct in his submission on appeal  that the judge's references to a cover-up could only have served to distract the jury from their essential function in the case. 

1. As well as serving as a distraction, the references to a cover-up do, in my opinion, also suffer from another and potentially more damaging defect. Suggesting there might have been a cover-up by persons associated with the Church implies that the parties to it were aware of or at least suspected the truth but decided to conceal it. Even if the accused himself is excluded from the scope of the assertion, statements to that effect invited the conclusion that other persons were conscious of his guilt or had reason to suspect it. An express direction to that effect would have been quite improper; and one that implies or imparts such a suggestion is obviously no better. The accused was entitled to be tried on the evidence presented against him, and not according to what others, however friendly or protective they may have been towards him, might have thought or believed about his guilt or innocence.  If, on the other hand, it was being suggested that the accused was himself associated with the supposed cover-up, his being a party to it would have taken on the character of an implied admission by conduct of his guilt, which should have attracted a direction in accordance with Edwards v The Queen (1993) 178 CLR 193. No such direction was given. On either view of it, the hypothesis of a cover-up in summing up to the jury was prejudicial to the fair trial of the accused.

1. Other justified criticisms of the summing up are given in the reasons of Pincus JA.  I need not repeat them here. I do, however, specifically identify myself with his Honour's strictures on the judge's sentencing remarks in this case. A considerable latitude is necessarily allowed to judges in expressing the outrage of society at offences of this and other kinds; but the judicial function in that regard is in general sufficiently discharged by condemning the conduct involved without appraising and passing upon the moral character of the accused.  In this instance, some of the sentencing remarks were expressed in language so intemperate as to be calculated to arouse or confirm in the mind of the accused suspicions that he may not have received a fair trial. That, it scarcely need be said, defeats one of the essential requirements  of a criminal trial under our system of law.

1. BYRNE J:       Regrettably, there must be a new trial. I agree with the reasons of  Pincus JA for that conclusion but wish to add a few words.

1. A fair, relevant summing-up is essential to a fair trial. And a summing-up, as Brennan J said in B v R (1992) 175 CLR 599, 605:

“must exhibit a judicial balance: Green v R (1971) 126 CLR 28 at 34 so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’: Stokes v R (1960) 105 CLR 279 at 284.”

1. Unhappily, this summing-up lacked the requisite balance and fairness. And far from assisting the jury to a calm assessment of the issues, this charge appreciably risked  distracting the jury into the cover-up hypothesis - something of the judge’s invention.

1. Public “confidence in the integrity, including the impartiality, of those entrusted with the administration of justice” (per Deane J in Webb v The Queen (1994) 181 CLR 41 at 68) is in jeopardy where, as here, a summing-up lacks the balance, moderation and fairness necessary to ensure the proper discharge by the jury of its important function.

1. I agree in the orders Pincus JA proposes.