R v F

[1995] QCA 164

IN THE COURT OF APPEAL [1995] QCA 164

SUPREME COURT OF QUEENSLAND

C.A. No. 289 of 1994

Brisbane

Before	Macrossan C.J. McPherson J.A. Byrne J.
[R. v. F]

T H E Q U E E N

v.

F

(Appellant)

Macrossan C.J. McPherson J.A. Byrne J.

Judgment delivered 09/05/95

Joint reasons for judgment by McPherson J.A. and Byrne J.

Separate concurring reasons by Macrossan C.J.

APPEAL DISMISSED.

CATCHWORDS	CRIMINAL LAW - Indecent assault - Fresh evidence - Whether evidence is material or cogent - Whether evidence could have been procured in time to be used at trial - Question of credibility of witnesses.
Counsel:	Appellant in person P.F. Rutledge for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the respondent

Hearing Date: 13 March 1995

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 09/05/1995

I agree with the order which McPherson JA and Byrne J

propose and subject to a minor reservation which I shall
express, I am in full agreement with their reasons.

Although I regard the legal admissibility of the
appellant's letter of 31 December as being at best from his

point of view doubtful, I prefer to refrain from expressing a

concluded view upon that issue. I find that it is not necessary
for me to do so.

The appellant who argued his appeal before this Court was not legally represented and in asking for the letter to be received as significant fresh evidence, he did not relate his argument to any precise formal legal category. His submission, sympathetically viewed, seemed to come down to this: If the events which the complainant claimed had occurred actually did occur, then it was, in the nature of ordinary human affairs, extremely unlikely that the appellant would be found writing him a letter two days later in the terms which the letter actually records. For this reason the appellant suggested that the contents of the letter provide a reason for thinking that the complainant's version is untrue.

If the letter does carry the implication which the appellant suggests, then it may be that a question would arise whether this document, roughly contemporaneous, throws relevant light upon what may truly have transpired on 28 December. The admissibility of the letter regardless of the truth of any individual assertions contained within it might theoretically be

supportable. However, the fact is that when the letter is examined, it does not offer the appellant the support that he claims or serve to diminish whatever force the complainant's oral version of events should be accorded. It does no more than add some minor piece of background to the matter around which the credibility arguments would revolve. In short, for the

purposes for which it is pressed, the letter lacks cogency and

even if formally admissible, it could not affect the outcome of

the appeal and should not be admitted as fresh evidence.

Accordingly I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A. & BYRNE J.

Judgment delivered the 9th day of May 1995

This is an appeal by F against his conviction in the magistrates court at Longreach on a charge of indecently assaulting T at Yanburra on 28 December 1989. The complaint was heard on 3 December 1990 and, after evidence from the

investigating police officer and both the complainant and the

appellant, the magistrate convicted the appellant and fined him $500. On 20 May 1991, time for appealing against the conviction

was extended, and on 1 August 1991, the appeal was heard by a Court of Criminal Appeal consisting of Ryan, de Jersey and Mackenzie JJ. The Court reserved its decision, delivering

reasons on 27 August 1991 dismissing the appeal.

On 24 August 1994, time was again extended for appealing against the conviction on the ground of discovery of fresh evidence. It is fairly arguable that, having previously appealed unsuccessfully against conviction, the appellant's only remedy thereafter was to petition the Governor to exercise the pardoning power, in which event the appellant's petition might

be referred to this Court under s.672A of the Criminal Code.

See R. v. Edwards [1931] S.A.S.R. 376. However, the matter

having now been heard by this Court in full, it is desirable

that we express an opinion on the appeal, in which the appellant

appeared in person before us.

In order to assess the evidence now put forward as fresh material, it is necessary to recount briefly the circumstances leading to the appellant's conviction in 1990. He is a grazier

with a property at Yanburra between Longreach and Winton, and another at Chinchilla. In 1989 he advertised in a Brisbane newspaper for a jackeroo to work on one of these properties. From a number of applicants he selected the complainant, who was

then a 17 year old youth whom he interviewed at the Beenleigh

Showground in about August 1989. It was later arranged that the

complainant should travel by bus to Longreach, where the appellant met him on 28 December 1989. After spending time viewing the sights of Longreach and having lunch, the appellant drove the complainant to the Yanburra property. According to

the complainant's evidence in the magistrates court, shortly

after their arrival at the property, the appellant approached the complainant and, saying that he loved him and wanted to kiss

him, hugged him and made a movement with his hand towards the

complainant's genitals. The complainant pushed his hand away, and began crying and saying that he did not like it there, and wanted to go home. He asked to be taken back to Longreach, where he caught a bus back to Brisbane late that afternoon.

The complaint was made to the police at Beenleigh on about

31 December 1989 or shortly afterwards. The appellant was

interviewed by police on 30 March 1990 in Longreach, and signed

a record of interview on that date. In it he admitted to having hugged the complainant, but denied having attempted to kiss him

or to touch him as alleged. At the hearing the record of interview was admitted in evidence without objection from counsel for the appellant, leaving the magistrate with the task of resolving the resulting conflict of credibility between the complainant and the appellant. After reminding himself of the dangers of convicting on uncorroborated evidence in a case like

this, the magistrate nevertheless decided to accept the

testimony of the complainant. In his reasons he said that,

notwithstanding some minor discrepancies, the complainant's evidence in court was substantially the same as that given to police in Beenleigh shortly after the event, and that he found

him to be substantially "a reliable and honest witness".

It is evident from the magistrate's reasons that his

decision was influenced by his impression of the principal

protagonists in giving their evidence. In particular, he said

that the appellant "did not come across as a totally forthright

and honest witness", and that he had "some doubts about his overall veracity". It the face of credibility findings like these, it is not surprising that on the earlier appeal the Court

decided that there was no proper basis on which the conviction

could be upset. The magistrate had made no error of principle, and an independent assessment of the evidence did not call for a different result to be substituted on appeal.

Before us the appellant relied on four matters as constituting fresh evidence on the present appeal. The first was a letter written by the appellant to the complainant on 31 December 1989, which was three days after the complainant left

Longreach to return home. The second was two letters written by

the appellant to two other boys, D and H, on 26 January 1990.

The third was an attempted reconstruction by the appellant of a

photograph album which he claimed the complainant had shown to

him at Yanburra on the afternoon of the alleged offence on 28

December 1989. Finally, there was an affidavit of H sworn on 8

February 1995, which referred to the first occasion on which he

had met the appellant early in April 1991.

The common feature of all four items of evidence is that, according to the appellant, they demonstrate a knowledge on his part of individuals and personal details of the complainant that

could only have come to him in the course of a conversation which he said had taken place with the complainant at Yanburra on the afternoon of 28 December 1989 before the complainant returned to Brisbane. In his evidence at the hearing in the magistrates court, the appellant said that at Yanburra the complainant had also shown him a photograph album containing photographs of his step father, his natural father, and others.

The complainant, he said, told him about D and H, who were

friends of his and residents of Boystown. This was said to be

how the appellant was able to write and address letters to them

a month or so later. The affidavit of H attests to the latter's surprise, on his first meeting the appellant, that the appellant knew so much about him. The two letters to D and H were

available at the original hearing but through some oversight (which the appellant ascribed to his counsel) they were not made

use of at the hearing in the magistrates court.

Speaking generally, new or additional evidence will not be admitted for the first time at the hearing of a criminal appeal unless it satisfies the tests of materiality and cogency, and unless it is also fresh, in the sense that it was not available and could not, by making reasonable efforts, have been procured in time to be used at the trial. The second, third and fourth

items of new evidence produced on this occasion do not appear to

satisfy any of these tests.

The appellant contended that his conviction resulted from

the magistrate's preference for the testimony of the complainant

at the hearing, and that, on that issue, the new evidence would have made a critical difference to the magistrate's findings.

However, the real difficulty confronting the appellant is that

it would not have been possible to make use of it in any telling

fashion at the hearing. The fact that the appellant knew enough

about the other boys to be able to write letters to them after the incident on 28 December 1989 does not show that the

complainant was telling lies about the incident that took place at Yanburra on the afternoon of that day. Information about others could have been conveyed to the appellant at some other time either on that day, or on some earlier occasion when they

spoke to each other by the telephone, or at the Beenleigh Showground in August 1989. Whether or not the appellant was

shown a photograph album, the contents of which he claims to describe, is not capable of being determined by reference to the

reconstruction of the album which the appellant has now produced. All these matters were, in any event, peripheral to

the issue of who was telling the truth about the incident with

which the appellant was charged.

The letter written by the appellant to the complainant on

31 December 1989 stands in a slightly different position. Its

virtue from the appellant's standpoint, is, he claimed, that it is not the kind of letter one would expect him to have written

to the complainant if he had done the things that were later

charged against him, or if he had parted from the appellant on unfriendly terms after the incident alleged. The letter assumes that the complainant might still wish to work for the appellant,

possibly at Chinchilla, and it suggests that the complainant's

problem is "a lot more than just the heat and the distance". The reference to heat and distance harks back to something that

was said by the complainant when he told the appellant on 28 December that he did not want to stay at Yanburra but wished to

return home. At the trial the complainant denied he had said "heat and distance", claiming that he had referred only to the heat.

The letter of 31 December, which the appellant succeeded in obtaining only some time after the hearing from the police station at Beenleigh through the freedom of information procedure, was not available to him at the hearing. Some

questions were, however, put to the complainant about it in the

course of cross-examination in the magistrate's court, but it was not possible then to take the matter further because the letter was not available in court. Its absence on that occasion

has prompted suspicions on the part of the appellant; but it is

more likely to have been due to a breakdown in communication or administrative arrangements between the police in Beenleigh and Longreach than to anything of a more sinister character.

The appellant naturally views the discovery of the letter as a vindication of his earlier claims and as evidence of his probity. It is equally capable of being considered as an

indication of the truthfulness of the complainant. If the

letter is inconsistent with his testimony in court, then it is

surprising that he should have handed it to the police soon after he received it. In law, the letter would in any event not have been admissible at the hearing of the charge in the

magistrates court. It was a self-serving statement by the appellant, which would have been admissible only to rebut a suggestion of recent fabrication on his part. No suggestion of that kind was ever made by the prosecution. It would not have

been admissible in evidence against the complainant as an

admission by him. He did not write the letter, and it would have been remarkable if under questioning he had been prepared

to admit the accuracy of its contents. In cross-examination the

only use to which it could have been put would have been to show it to the complainant and then to ask if he adhered to the evidence he had already given. His likely response to such a question is fairly predictable.

The letter written on 31 December 1989 by the appellant to

the complainant can thus not be characterised as being either

material or cogent evidence. It would not, if it had been available, have been admissible at the trial of the charge of the offence of which the appellant was convicted. It is not

capable of being considered as fresh evidence that would lead this Court to a conclusion on the question of credibility that

is different from that reached by the magistrate.

The appellant's present appeal must therefore be dismissed.