R. v. F

[1993] QCA 305

IN THE COURT OF APPEAL  [1993] QCA 305

SUPREME COURT OF QUEENSLAND

C.A. No. 208 of 1993

Brisbane

[R. v. F]

BETWEEN:

THE QUEEN

v.

F

(Appellant)

The President

Mr Justice Ambrose

Mr Justice White

Judgment delivered 20/08/93

Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED, THE CONVICTION AND SENTENCE SET ASIDE AND A NEW TRIAL ORDERED.

CATCHWORDS:                  CRIMINAL LAW - Evidence - Admission on taped interview tended to reveal appellant's prior convictions - Whether admissible - Whether trial miscarried.

Counsel:Appellant conducted his own case

Mr J. Henry for the respondent

Solicitors:Director of Prosecutions for the respondent

Hearing Date:  17/08/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.208 of 1993

BeforeThe President

Mr Justice Ambrose
Mr Justice White

[R. v. F]

BETWEEN:

THE QUEEN

v.

F

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/08/93

The applicant has appealed against his conviction in the District Court at Ipswich on 2 June 1993 on two charges of incest between 6 June and 27 December 1991.  He has also applied for leave to appeal against a sentence of ten years' imprisonment imposed on him on 4 June 1993.

The appellant was born on 10 June 1957 and was about 34 years of age at the time of the offences.  The complainant was his 12 year old daughter, C.  The prosecution case was that on two occasions about a month apart the appellant had sexual intercourse with his daughter in the marital bed early in the morning after his wife had gone to work.  The complainant's evidence as to sexual intercourse was uncorroborated.  However, in taped police interviews, the appellant admitted having placed his penis between her legs on two occasions apparently consistent in time and place with the occasions nominated by the complainant.

The appellant, who did not call or give evidence, has a criminal history involving other sexual offences.  He had been sentenced on 30 September 1988 to six years' imprisonment on one charge of attempted rape, one charge of rape, one charge of incest and one charge of dealing with a girl under the age of fourteen years.  Those charges related to his step-daughter, D.  He was still on parole at the time of the offences the subject of the convictions which are presently under appeal.

Ground 2 of the appellant's notice of appeal relates to his application for leave to appeal against sentence and simply contends that the sentence imposed was manifestly excessive.  Grounds 1 and 3 provide as follows:

"1.I was unjustly dealt with in ... regards to prior conviction being mentioned in a video tape submitted to the jury for hearing prior to sentencing by the trial Judge.   This evidence was supposed to be removed from video tape.

...

3.That the learned trial Judge erred in allowing extraneous evidence to be admitted before the Jury."

Those grounds relate to a passage in a taped interview of the appellant by police.  Counsel had quite properly agreed that passages implicating him in other offences should not be played to the jury.  A transcript purporting to be a written record of what was on the material tape contained the following question and answer:

"F, can you give me any reason why your daughter C would make a complaint of this nature against you ? -- Not really, but it might ... UI" (that is, unintelligible)" my wife and me were going back to Queensland ... UI"

That was inaccurate.  Before this Court, the applicant and counsel for the Director of Prosecutions agreed that the relevant segment of the tape, which was played to the jury, contained the following question and answer:

"Q:F can you give me any reason why your daughter C would make a complaint of this nature against you?

A:Not really, but one is that she never wanted to come back to Queensland when me wife said we're going back to Queensland. She knows what D did years ago. That's the only thing I can think of. She thought by putting me away again might be able to stay back up there in the Territory."

Counsel who appeared for the appellant at the trial applied for the discharge of the jury "on the basis they have heard evidence that they should not have heard".  At that point, the prosecutor's submission was that "there is no reasonable interpretation that could be placed on those words to infer any prejudice against the accused".  The attitude of the trial judge appears from the following passage:

"HIS HONOUR:  It's not clear to me. You are saying the jury should infer that he has been convicted for interfering with D?

[Counsel for the appellant]

MR GODSALL:  Yes.

HIS HONOUR:  From what we heard there?

MR GODSALL:  Yes.

HIS HONOUR:  I fail to see it, I'm sorry. I don't want to hear it. I've heard it before. How anyone could draw such an inference from that garbled gobbledygook, I wouldn't really understand. It certainly went over my head, and I've got to take notice of my own reaction to that because I've got to decide whether there is any danger of the jury so interpreting it, and I can't see it. ... ."

His Honour shortly afterwards went on to say:

"You have got a recourse elsewhere."

It seems that the point was not dealt with in the trial judge's summing-up, but it is less clear that it was not referred to by the prosecutor.  A copy of counsels' addresses is not available to this Court, but some insight may be gleaned from an exchange which followed the summing-up.  Counsel for the appellant again adverted to the objectionable section of the tape in the course of his application for redirections.  The following exchange then took place:

"HIS HONOUR:  I didn't think anybody could understand what he was talking about let alone draw an inference. Since you have raised that I am curious to know, in the event it was discernible, do you say - lest he made an admission to the police he had a previous conviction, why isn't that admissible. It is said here, after numerous cautions ----

MR GODSALL:  It was not admissible on this basis, because my learned friend and I agreed that none of that would go before the jury. Let me put it this way, in addition to that, the fact it goes before the jury without my knowing it is going before the jury prevents me from the very argument that Your Honour is now inviting.

YOUR HONOUR:  No, I'm not inviting an argument. I'm simply wondering why you made the application.

MR GODSALL:  Or pose it rhetorically.

YOUR HONOUR:  Mr Ryan, what do you say about the second point?

[Prosecutor]

MR RYAN:  I wasn't seeking to use that evidence really as consciousness of guilt. It was a matter which went to the credibility of the accused's version.

HIS HONOUR:  There will be no redirections."

The prosecutor's statement in the passage quoted suggested that, contrary to what had been agreed, the prosecution sought to rely upon the section of the tape of which complaint had been made on behalf of the appellant to persuade the jury to accept the complainant's version of events in preference to the version given by the appellant in the course of his interview by police.  That dispute was, in a practical sense, the central issue in the trial.

We have listened to the tape and consider that the critical section is both audible and materially adverse to the appellant.  It was not available, and should not have been used, for the purpose suggested by the prosecutor or any other purpose.  Further, it is impossible to decide whether it had any, and if so what, impact on the jury.  It quite possibly caused it to think of the appellant as a man who had previously been convicted and sentenced to imprisonment, perhaps in conjunction with offences against his step-daughter.

In these circumstances, the trial judge's discretion miscarried and the appellant has not had a fair trial, see R v. Knape [1965] VR 469, 472-474; R v. Waring (No.2) [1972] Qd.R. 263, 269-271.

The appeal against conviction is therefore allowed, the conviction and sentence set aside and a new trial ordered.