R v G

[1995] QCA 517

IN THE COURT OF APPEAL	[1995] QCA 517
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 364 of 1994
[R. v. G]

T H E Q U E E N

v.

G

Fitzgerald P
McPherson JA

Thomas J

Judgment delivered 24 November 1995

Joint reasons for judgment by Fitzgerald P and Thomas J; separate concurring reasons by
McPherson JA

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ALLOWED BY ADDING A RECOMMENDATION FOR CONSIDERATION FOR PAROLE AFTER SERVING TWO YEARS OF THE SENTENCE

CATCHWORDS:  CRIMINAL LAW AND PROCEDURE - appeal against conviction - incest - conduct of defence - allegations of improper conduct of trial counsel -need for material that demonstrates miscarriage of justice - exceptional circumstances necessary before tactical decision can satisfy test

SENTENCE - incest - effect of illness of applicant.

Counsel:	Mr G Strachan for the Appellant
Mr M. Byrne QC for the Respondent
Solicitors:	G. Couper for the Appellant
Director of Prosecutions for the Respondent
Hearing Date:	2 February 1995

REASONS FOR JUDGMENT - FITZGERALD P and THOMAS J.

Judgment delivered 24 November 1995 convicted him on the first count of incest and were unable to reach a verdict in respect of the other two counts. He was sentenced to six years' imprisonment.

The only witness was the complainant. The appellant elected not to give evidence.

The complainant is the appellant's daughter. She was twelve years old at the time of the

The complainant's evidence was to the following effect. In 1982 she was a twelve year
old girl living at home with her mother and brothers. Her father (the appellant) had separated
from her mother about three years previously, but was an occasional visitor. She had her first
period a few months before the incident in question. About six weeks prior to her thirteenth
birthday her mother threw a book at her saying, "You better read this, because your father's
coming up tomorrow to teach you about sex." The next day her mother kept her home from
school. Her father arrived and she was taken into her mother's bedroom and told to lie on the
bed. The appellant applied vaseline to her vagina and told her to spread her legs and lie still so it
would not hurt. He pushed himself into her. She screamed and asked him to stop but he
continued. Her mother came into the room and told the appellant to keep the complainant quiet
because a neighbour was downstairs and he would hear her. The complainant asked her mother
to stop him but she left and shut the door. Eventually he removed his penis and showed her how
it ejaculated. Her mother returned and gave her a pad to put in her pants.

first offence. More than ten years passed before any complaint was made to the police. it would be better for her to have sexual intercourse with him first, otherwise if she were raped by someone else that person would kill her if she screamed.

The complainant gave evidence of two other incidents occurring two years later in 1984. It is unnecessary to detail these for the purposes of the appeal. It is perhaps surprising that there were disagreements on counts two and three if the complainant was accepted as a credible witness with respect to count one, but there are points of distinction which could have caused concern to some members of the jury on those counts and not on the first count. For example on the occasion of the second incident her brothers were at home and sleeping in other rooms in the house within easy hearing, and at this stage (at age fourteen) she was having a sexual relationship with a boyfriend named Malone. Her complaint to her mother at that time was motivated by a fear, when she was late with a period, that she might be pregnant. Her complaint to her mother, according to the complainant, was only in relation to her father and not in relation to Malone. The third incident (soon after the second) involved the placing of his hands inside her pants and was said to have been seen by the complainant's mother.

The grounds of appeal did not attack the summing up or any other activity of the learned

Trial Judge. The relevant grounds include:-
"(1)that the verdict of the jury was against the evidence or the weight of the evidence and

would cause a substantial miscarriage of justice if it were allowed to

stand.

.........
(5)that fresh evidence has become available."

The appellant conducted his appeal in person, presenting oral and written argument. His written submission went beyond the stated grounds, and several points in the submission were based upon allegations which were not established by any evidence. These included allegations concerning the manner in which his counsel conducted the trial on his behalf. There was for example a complaint that counsel failed to ask "How did she suddenly remember this after all these years?". The complainant's evidence did not allege a lost or repressed memory, and the real point is whether counsel should have explored her reasons for not complaining to the authorities for so long a time.

It is becoming more common, particularly when an appellant is not legally represented, for counsel who represented the appellant at trial to be criticised for the way the trial was conducted, with allegations of bad advice, disregard of instructions, and failure to ask necessary questions or call necessary witnesses: see, e.g., R. v. Birks (1990) 19 N.S.W.L.R. 677; R. v. Clinton [1993] 1 W.L.R. 1181; Miladinovic v. R. (1993) 124 A.L.R. 698, 706-707; R. v. Zullo (CA No. 343 of 1991; unreported judgment delivered 10 August 1992); R. v. Lee Pearce (CA No. 332 of 1992, unreported decision delivered 13 November 1992); R. v. Koorts (CA No. 394 of 1994; unreported judgment delivered 17 November 1994); cf. Chouman v. Margules (N.S.W.C.A., unreported judgment delivered 24 June 1993 - see 67 A.L.J. 796).

While these complaints are easy to make, considerable time and effort is often necessary to determine whether they have any substance, even when they are baseless. This presents a major problem in an overloaded Court system in which the number of cases to be heard, especially criminal cases, is increasing and trials are growing longer, with a corresponding increase in the appellate workload and, because of the cost of legal representation and perhaps other reasons, more appellants are representing themselves. Almost invariably, the absence of competent legal representation adds to the burden on the Court, which is anxious to ensure that the unrepresented party receives appropriate assistance: cf. MacPherson v. R. (1981) 147 C.L.R. 512.

The mere fact that valid criticisms can be made of counsel's conduct of the trial does not mean that there has been a miscarriage of justice or that an appeal against conviction should be set aside. In Zullo, Pincus J.A. said "that there is a strong disinclination to allow an appeal on the ground that a decision taken by the appellant's counsel as to the mode of conduct of trial was mistaken", and, in Clinton, the English Court of Appeal said at p. 1187 that the circumstances must be "wholly exceptional" and that a conviction should be set aside on this basis only if it is, in all the circumstances, unsafe or unsatisfactory. This approach has since been approved in the Privy Council (Sankar v. Trinidad and Tobago [1995] 1 W.L.R. 194, 200). In Birks, Gleeson C.J. may have gone further, when he said at p. 685:

"1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2.As a general rule an accused person is bound by the way the trial is conducted by Counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by Counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of Counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

In our opinion, the second paragraph in that passage should be read as indicating no more than that such conduct by counsel will not automatically entitle an accused person to a retrial in every case; it does not mean that such conduct will never have that result; whether or not a new trial should be ordered will depend on the circumstances of each case; a new trial will generally not be appropriate unless incompetent or improper conduct by counsel deprived the person convicted of a significant possibility of acquittal, such as for example when the accused is deprived of the opportunity to present his defence (Sankar, above).

This test will not be satisfied, other than in "wholly exceptional circumstances", by reference to decisions made in the conduct of the trial which might have involved both advantages and disadvantages for an accused person; e.g., whether or not to call a particular witness or ask a particular question or follow a particular line of inquiry. Sometimes, the course which should have been followed will be obvious: e.g., Koorts. However, the possibility of an unfair trial is not demonstrated by a guilty verdict or other subsequent event which suggests that the impugned decision or advice by counsel did not produce the hoped-for result; that does not even establish that the decision was erroneous, and even decisions revealed by hindsight to be wrong do not necessarily indicate that the trial miscarried. Whether or not a failure or refusal to follow instructions is a sufficiently exceptional circumstance to entitle a convicted person to a retrial need not be decided on this occasion, but we tentatively incline to the view that it would be necessary for an appellant to prove disobedience of a specific instruction on a matter of substantial importance, i.e., which was directly material to the proper conduct of the defence and might have affected the outcome of the trial.

In the present matter the Court gave the appellant the opportunity to pursue his complaint that the trial had miscarried by reason of the conduct of his counsel, and permitted him to add the following ground: "The trial miscarried due to trial counsel's failure to cross-examine the complainant on her delay in complaining and the reasons for her delay in complaining". Three affidavits were in due course filed, but the appellant indicated his unwillingness to release his former solicitor or his counsel from the obligations of professional privilege. The Crown foreshadowed a submission of waiver and of material in response. Ultimately the appellant's solicitor advised the Court in writing that the appellant would not rely on the affidavits that had been filed, and that "as a result, the issues of privilege and waiver are not relevant".

The question whether there is good reason for counsel's reticence in questioning the complainant as to reasons for her delay in complaining would only be resolved by a proper examination of relevant instructions including any information that might make it risky to do so. Although the Court does not know why counsel did not pursue the point, reasons why it may have been dangerous to do so can readily be envisaged. Proof of the danger of asking such a question was foreshadowed by the Crown in reliance upon what had transpired at the committal. It is not necessary however to refer to such material in order to determine the appeal.

It is enough for present purposes to observe that there is no evidence from which this Court could safely conclude that counsel acted contrary to the interests of the appellant in declining to pursue the lateness of the complaint. A not dissimilar position arose in Batiste v. R (1995) 10 Leg.Rep.C 15-16 where an applicant sought leave to appeal against a refusal to stay her criminal prosecution. She had dismissed her counsel and solicitors, causing legal aid to be withdrawn. She refused to waive privilege to allow the Trial Judge to read her correspondence with the dismissed solicitors. Toohey J noted with approval the observation in the Full Court that the application could only be resolved if the applicant was prepared to indicate the circumstances in which she became unrepresented. There was accordingly no basis upon which the principle in Dietrich could be shown to have been infringed.

It is not necessary to decide whether the privilege has been waived, and to decide whether further evidence should be received. Quite simply there is no material to support the allegation that defence counsel acted imprudently or incompetently, or that there is any reason to think that defence counsel's conduct caused a miscarriage of justice.

It was further submitted that the complaint was the product of an act of imagination of a woman who was experiencing serious problems at the time when she made it. It must be acknowledged that in cases of this kind where complaints are made by mature people many years after the alleged time of an impropriety a close examination is necessary of the circumstances and motivation of the complainant. Sometimes an active imagination can provide a solution to social problems that may be threatening to overwhelm a disturbed person. The Courts need to be particularly vigilant when the community is conditioned to believe in a high level of child molestation and when there exists a prospect of sympathetic support to persons who make such complaints. The concern of the Court is with the truth of such complaints. The situation and motivation of the complainant at the time the complaint is brought forward may be a telling circumstance when there is little more than the conflicting versions of two people. It was suggested in the written submissions that such a situation existed in the present case, but there is no evidence before us that this was so or that this was brought to the attention of the defence solicitor or barrister.

When the matter came back before the Court for final submissions the appellant was represented by Mr Strachan of counsel who presented both written and oral submissions. Whilst disclaiming reliance upon the withdrawn affidavits, and while contending that by pursuing that line the appellant had run the risk of derailing his own appeal, he persisted in the submission that the trial miscarried because of counsel's failure to ask questions concerning the delay. The submissions attribute statements and attitudes to the complainant which are not substantiated in evidence and they do not persuade us that there is any basis for thinking that the trial miscarried on this ground.

We also note an earlier written submission of the appellant complaining that the prosecution had amended and expanded the dates between which the three offences were

alleged to have occurred. The amendment was within the proper discretion of the prosecution in drawing the indictment. Given the age of the complainant when the events happened, and the lapse of time, this particular aspect is not surprising and it does not necessarily reflect upon her credit. This point does not advance the applicant's case on appeal.

In summary, although this was a case devoid of corroboration the evidence was not inherently incredible and it is not of such a character that a reasonable jury should not have accepted it. The Trial Judge gave full and appropriate instructions. There were three points upon which the complainant varied her story between statements originally given and the evidence finally given in court, but these variations were not such as to require the essential story to be rejected. For reasons earlier stated, the jury's disagreement on counts 2 and 3 does not reveal any necessary inconsistency such that the verdict on the first count cannot stand. (R v. Core (CA 222 of 1995), 15 September 1995; R v. B (CA 346 of 1992, 2 September 1993)).

The appeal should be dismissed.

There is also an application for leave to appeal against the sentence of six years. The applicant is fifty-one years old and has for many years been seriously afflicted with asthma. He is subject to life-threatening attacks and has required hospital treatment on a number of occasions, one of these for a period of nine months. In short he is more disadvantaged than most in serving a prison sentence.

He has no previous convictions.

His crime must be treated as an isolated one, but of course it is a very serious example of the crime. This follows from the respective ages of the applicant and the complainant, her virginity, the force (including the consequential bleeding), and the particularly callous and shameful nature of the exercise.

Of course the applicant was not charged with rape and he should therefore not be sentenced as for rape. The commission of uncharged offences may not properly be taken into account for the purposes of punishing an accused person (R v. Dales (CA 12 of 1995, 4 August 1995); cf R v. Cooksley [1982] 2 Qd.R. 405, 417; R v. Jobson [1989] 2 Qd.R. 464, 466, 471) but there is no reason to think that the learned sentencing Judge did so in the present matter in adverting to the physical circumstances of what happened. The evidence shows this act of incest to have been a vigorous and particularly unpleasant example of the offence.

The learned Trial Judge went on to observe "that it would appear that the offence was committed in collaboration with the child's mother" and that this was another factor that he regarded "as being a most serious one". We do not take these remarks to indicate that the sentencing judge proceeded on the footing that there was a conspiracy between the appellant and his wife or that the appellant was to blame for his wife's behaviour; rather to indicate that his Honour had regard to the steps taken by the appellant to deprive his child of the support that would normally be expected from her mother, and his premeditation. It would be wrong to punish the appellant for someone else's misconduct, but we do not think that the Trial Judge did so in this instance.

The learned sentencing Judge was referred to a number of previous sentences including those in Cooksley, Jobson, Draper (CA 106 of 1990, 18 July 1990), Attorney-General v. Baldwin (CA 300 of 1984, 27 February 1985), and Carter (CA 342 of 1985, 6 March 1986). These generally support what his Honour termed an "ordinary range (of) four to five years or maybe three to five years". His Honour however regarded the present case as being beyond the ordinary and as being unusually serious.

In a recent decision of this Court (Cochrane (CA 309 of 1995, 31 October 1995)) this Court upheld a sentence of five and a half years imposed upon a fifty-eight year old man for incest committed upon his fourteen year old daughter sixteen years previously. In some respects Cochrane's conduct was more serious than that of the present appellant, in that the incest produced a child and he was sentenced at the same time for other criminal behaviour including attempted incest and indecent dealing with his grand-daughter twelve years after the offence against his daughter. On the other hand Cochrane's incest was with a more mature girl than that of the appellant, and lacked the forceful features of the present matter. In Cochrane the Court declined to make any early recommendation for parole despite the good work-history, the lack of previous convictions and the ill-health of the appellant. Consistently with Law (CA 176 of 1995, 6 October 1995) the Court refused to regard the lapse of time between commission of the offence and the passing of sentence as a mitigating factor, unless some particular unfairness might be seen to arise towards the appellant by reason of the delay. Examples of such unfairness include delay for which the persons in authority are responsible, and rehabilitation in the meantime. In Law, Cochrane and the present case, such factors are not present, and cannot be regarded as a circumstance of mitigation.

However it was recognised in Cochrane that it may be appropriate for leniency to be extended to persons with particular disabilities or to elderly persons. No special reason was demonstrated for applying that factor in Cochrane, but we think that the medical report of Dr Podagiel demonstrates a life-threatening asthmatic condition that places this appellant under exceptional risk and that he is probably under significant disadvantage in the prison system. Even with maximum medical assistance, he suffers many side-effects of prednisone use, including loss of subcutaneous connective tissue and easy bruising.

In all the circumstances we think that the head sentence of six years should not be disturbed, although it may be thought to be at the upper end of an appropriate range. Cochrane should not be regarded as fixing the maximum limit, and in any event the figure of five and a half years in that case seems to have been fixed after submissions suggesting the appropriate range in that case to be between five and six years. However we regard the present case as one where his severe medical condition and his disadvantage in serving a prison sentence justifies a recommendation for consideration of parole after two years.

The application for leave to appeal against sentence will therefore be allowed by adding that recommendation to the sentence.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 24th day of November 1995

I agree that the appeal against conviction should be dismissed. I do so essentially for the reasons given by Fitzgerald P. and Thomas J., which I have had the advantage of reading, save that I wish to reserve for future consideration the principles that should be applied to cases in which an appellant may successfully found his appeal on shortcomings or deficiencies in the conduct of the defence at the trial. The authorities helpfully collected in the reasons for judgment of Fitzgerald P. and Thomas J. were not referred to or canvassed on this appeal. They raise some difficult questions, about which it is, in my opinion, not prudent to generalise in advance and without the benefit of submissions from counsel for the Crown and the defence.

The procedure governing the conduct of criminal trials is commonly and correctly described as being not inquisitorial but adversarial. That means that a heavy responsibility is necessarily cast on counsel who appears for the accused person. The effective discharge of that function is one that we as judges are not often in a position to supervise, scrutinise or censure. The reason is that, for the most part, we lack the materials on which to base an informed judgment on the question. We do not know what the accused's instructions to his counsel were. We do not have his statement or proof; nor do we have the advantage of a conference with the accused or other witnesses. We do not even have the depositions from the committal hearing. Consistently with the duties of legal representatives, and the privilege which attaches to communications to and from the client, we have no means of discovering what it was that may have dictated a particular course of action or conduct at the trial.

Without having information like that, it is in most cases difficult, if not impossible, to judge whether a particular course or decision taken by counsel at the trial was wise or foolish, prudent or fraught with risk, or hopelessly incompetent. Of this, the present appeal affords a compelling illustration. At the trial the complainant was not cross-examined about why the making of her complaint against the appellant was so long delayed. On the face of it, that is a matter that one might expect counsel to have asked her about. He did not. On the first hearing of the appeal, the appellant was accordingly allowed to amend his notice of appeal to add a ground that the trial miscarried due to counsel's failure to cross-examine the complainant with respect to her delay in complaining and her reasons for that delay.

That hearing was followed by a lengthy interval, in which affidavits of a sort were evidently filed on both sides; but the appellant, as was his right, declined to abandon his claim of privilege as regards communications with his previous legal representatives. For its part, the Crown adopted the stance that the privilege had been waived. The upshot was that the appellant by his solicitor advised that his affidavits would not be relied on, and they have not been.

When the appeal came on again for hearing, counsel who then appeared for the appellant submitted that it was possible from the Crown's material both to identify a letter which may have been the source of counsel's concern at the trial, and also to demonstrate that that concern was misplaced. The letter was, it seems, written long after the events with respect to which the appellant was charged; but it was written by the appellant; and it evidently revealed something that was highly unfavourable to him. The letter is said to have been mentioned in the depositions, presumably those at the committal hearing; but its text or its terms are not before us.

If there was such a letter, and it showed the appellant in a bad light, it does not take much imagination to realise its effect if it found its way into the evidence before the jury. In this Court, counsel for the appellant submitted that it would not have been admissible. He said its contents were hearsay; it was not probative of any facts in issue; and its prejudicial effect far outweighed its probative value. This is to overlook the fact that once a question is asked of a person about why she or he did or failed to do something, there is virtually no limit on the information that may be given in answer to it. In that event the answer to a question about the reasons or motives of a witness is not circumscribed by the protective rules of evidence excluding hearsay, secondary evidence, prejudicial matter, or any other factor that may have led to the action or inaction in question. Counsel who asked such a question might be considered incompetent. One who refrained from doing so cannot readily be censured for not doing so.

Counsel for the appellant submitted that it would have been possible to cross-examine the complainant about her delay in complaining without running the risk that damaging testimony would emerge, or would become admissible in re- examination. In the end, however, he seemed unable to formulate for our benefit an apt question for that purpose, or to demonstrate a way in which the matter could have been approached at the trial without attracting a serious risk that the appellant would probably, if not certainly, thereby have lost any and all chance of acquittal he might otherwise have had. Having read the written submissions which were handed up on the appeal, I am personally satisfied that there was no way in which such a risk would have been incurred by competent counsel.

Putting that question aside, I agree with the reasons of Fitzgerald P. and Thomas J. for concluding that the appeal against conviction in this case should be dismissed. I also agree that the application for leave to appeal should be allowed, and with the order their Honours propose in that regard.