R v H

[1994] QCA 503

IN THE COURT OF APPEAL [1994] QCA 503

SUPREME COURT OF QUEENSLAND

C.A. No. 163 of 1994.

Brisbane [R v. H]

T H E Q U E E N

v.

H

Appellant

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Macrossan C.J.
Pincus J.A.

Ambrose J.

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Judgment delivered 24/11/1994
JUDGMENT OF THE COURT

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APPEAL DISMISSED

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CATCHWORDS:	APPEAL AND NEW TRIAL - misdirection or non- direction - incest - indecent dealing - complainant's story uncorroborated - trial judge warned jury as to the dangers of convicting on uncorroborated evidence - whether more specific directions highlighting weaknesses and inconsistencies in complainant's case should have been made, in accordance with Domican (1991) 173 C.L.R. 555 - whether inconsistencies made verdict unsafe and unsatisfactory.
Counsel:	Mr J Jerrard Q.C. for the appellant. Mr D Bullock for the respondent.
Solicitors:	Russo & Associates for the appellant. Director of Prosecutions for the respondent.

Hearing date: 25 August 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24/11/1994

The appellant was convicted on a number of counts charging sexual activity with his daughter, then under 16. There were eight convictions in all: five of unlawful carnal knowledge and one each of unlawful and indecent dealing, attempted carnal knowledge and maintaining an unlawful sexual relationship. Two other charges were brought, but failed; there was an acquittal on one count of unlawful anal intercourse and a nolle prosequi was entered in respect of a count of unlawful carnal knowledge.

The appellant appeals principally on the ground of misdirection, but also says that the verdict was unsafe because of aspects of the complainant's evidence. The trial judge held that there was no evidence capable of amounting to corroboration of that evidence.

The two grounds are inter-related because the misdirection is said to be that the trial judge should have given what was described as a "Domican direction" in respect of deficiencies in the complainant's evidence, and to determine the correctness of that submission, being the one on which the appellant principally relied, it is necessary to look at those deficiencies. But the question does not depend upon a detailed knowledge of the character of the evidence given by the complainant. It is sufficient to mention but one example of the matters which, according to the appellant's evidence, should have been the subject of a Domican direction. It was said by Mr Jerrard Q.C. for the appellant that the jury should have been told that the complainant's motive for making an accusation should be taken into account in determining whether they should rely upon her testimony, which was held to be uncorroborated. The evidence with respect to motive came from the complainant alone; the appellant neither gave nor called any evidence in the case. The appellant, the complainant's father, had once been married to her mother, but that marriage ended in divorce; the appellant remarried. The complainant agreed in cross- examination that she would very much have liked her father to come back "into the family fold". It was suggested to her that she tried to make that happen and tried to break up "your father and his new wife". She rejected both these suggestions. The evidence on the point proceeded little further, except that later in the cross-examination the complainant admitted that in May 1993 she would not have liked to hear news that the appellant and her mother were never going to get back together again.

It was also suggested, in argument to this Court, that another possible motive was discernible from evidence concerning an argument the complainant had with her aunt. The evidence was that the aunt reprimanded the complainant for having slept on the lounge room floor with a boy, and that during the course of that reprimand the complainant told the aunt about her father's misconduct. The complainant said that when that allegation was made her aunt's attitude changed a little bit, and it was argued in this Court that a motive for the complainant having made, as was said, false allegations, was constituted by her desire to get out of the trouble she was in with her aunt.

As we understood the submission, it was that the judge erred in not telling the jury, with the authority of her office, that these possible motives for fabrication of the story told by the complainant should be taken into consideration when determining whether they would rely upon her uncorroborated testimony.

Domican (1992) 173 C.L.R. 555 deals with the directions which should be given when identification evidence is a substantial part of the case put forward by the Crown. Domican says that the judge must give directions as to the dangers of convicting on the evidence as to identification, where its reliability is disputed (561). The court held that:

"Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it...It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

If Domican applies in such a case as the present, it is at least arguable that the judge's directions were inadequate. The complainant gave evidence of a character which seems not uncommon, where there is a story of sexual dealings with a child over a substantial period of time; there were, as is explained in more detail below, inconsistencies in the evidence and the complainant claimed not to be able to recall or was vague about important details which some might have expected her to recall.

The complainant added substantial elements to her allegations after the matter was originally taken to the police, and the complainant claimed that dreams which she had had brought back to her mind some incidents of sexual misconduct which had been forgotten. These and other points would, as it seems to us, have had to be pointed out to the jury, with the authority of the judge's office, as weaknesses in the complainant's case, not merely as arguments put forward by counsel, if Domican governed the matter. Further, Mr Jerrard argued that the judge's references in summing-up to weaknesses in the Crown case should have included references to matters other than those which were there mentioned.

The principal question in the case, then, is whether directions of the Domican type must be given in prosecutions of this sort - i.e. where there are allegations of sexual misconduct, held not to be corroborated. In such cases it is still the practice to give a direction as to the danger of convicting on uncorroborated testimony, the nature of the appropriate direction being discussed in Longman (1989) 168 C.L.R. 79. Mr Jerrard argued that there is no logical reason why the consideration which makes a direction of the Domican type necessary, namely, the acknowledged risk of mistakes in identification, should not apply equally to the mischief dealt with in Longman.

It has to be said that some of the dicta in the principal judgment in Longman hint at a lack of enthusiasm for the practice of casting an adverse reflection "indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women" (86); see also the strictures of Deane J at pp. 91 et seq. But there is no doubt that the law in Queensland - uniquely, so far as Australian States are concerned - remains that however strong or weak a complainant's evidence in a sexual case appears to be, unless it be held to be corroborated, a warning must be given.

Mr Jerrard suggested that dicta in McKinney (1991) 171 C.L.R. 468 at 475-476, and in Black (1993) 179 C.L.R. 44 at 54- 55, point in the direction in which acceptance of his submission would take the law. We can find nothing in those passages which helps the appellant; unless the Court is prepared to make what Mr Jerrard would no doubt describe as an enlightened change in the accepted practice, the argument must be rejected.

Looking at the matter broadly, one can see potential advantages in acceptance of the submission made for the appellant. In the absence of directions from the judge, pointing to specific substantial weaknesses in the complainant's evidence, in addition to those dealing generally with the danger of convicting on uncorroborated evidence, such weaknesses may be overlooked or given insufficient weight by the jury. But as against that, it has to be said that prescribing what must be said by judges as to the facts is not an attractive process. Traditionally, judges have been accorded a wide discretion as to the extent to which directions should be put before a criminal jury with respect to the strengths and weaknesses of the parties' respective cases. Ordinarily a judge will not be regarded as having transgressed merely because the summing-up contains little or nothing of the judge's own opinions on such topics. Acceptance of Mr Jerrard's contention would create a substantial additional area in which a judge is not free to adopt the course taken by the primary judge in the present case, namely to draw the jury's attention to important factual arguments advanced by counsel on each side, without necessarily giving any of those arguments judicial endorsement.

As to Mr Jerrard's contention that there is no logical stopping place short of extending the rule in Domican to sexual offence cases, the stopping place is not so much a logical as a factual one. The justification for the doctrine of Domican must be the theory that miscarriages of justice because of mistaken identification evidence are particularly common (Domican at 561). It must have been this circumstance which produced the result that Domican directions must be given whatever the defence and however the case is conducted (ibid) - and however strong or weak the identification case appears to the judge to be.

There is perhaps a difficulty, illustrated in the present case, in requiring the judge authoritatively to tell the jury what are the significant weaknesses in the complainant's version. Rational opinions may differ on that point, and where the judge disagrees with defence counsel's analysis of the facts of the case, presumably he or she is free to express a view about where the weaknesses lie differing sharply from that put forward on behalf of the accused. That would not necessarily assist the accused.

For these reasons we do not accept the submission based on Domican's case; no other point about the judge's summing-up was pressed.

It remains to consider the principal attacks upon the complainant's credibility.

The course of argument makes it hardly necessary to deal comprehensively with the complaints made about inconsistencies and the like in the complainant's evidence; the argument that the verdict was unsafe focused mainly upon evidence given with respect to the complainant's dreams about being abused by the appellant. That subject is dealt with below, but since the other complaints were not abandoned it is necessary to discuss examples of them. As will appear, we consider some of them are significant and others are not.

It was submitted that there was an inconsistency in that the complainant first swore that the appellant had placed a towel over her head on an occasion which was not the first occasion of sexual abuse, and later said that the towel was placed over her head on the first occasion of sexual abuse. The critical questions and answers are the following:

"And on each of these occasions - the first time he came in

and rubbed his penis between your thighs?-- Yes.

And on a subsequent occasion it was - he did a similar sort of thing and also put a towel over your head?-- That was the first time he put the towel over my head.
That was the first time, was it?-- Yes."
It is possible to read this evidence as asserting that the towel
was placed over her head on the first occasion of sexual abuse,
but in our view the answer 'That was the first time he put the
towel over my head" is at least equally capable of referring to
the "subsequent occasion" mentioned in the question.

Then it is said that the complainant gave inconsistent evidence about the number of times the appellant attempted to have intercourse with her. In our opinion the evidence does not support this argument. Initially the complainant described an incident in which the appellant came into the bathroom and tried to put his penis into her vagina - "...and he couldn't get it. So he tried that every time". Later, when being asked about another occasion of alleged sexual abuse she gave the answer which is allegedly inconsistent:

"I take it that his penis didn't go into your vagina that time?-- No, he tried a couple of times and he just couldn't get it."

In our view the evidence is quite consistent, on this point. The answer which has just been quoted plainly refers only to one single occasion.

By way of contrast to the two examples of weaknesses in the evidence which we have given, it is desirable to mention some which appear to have substance, of greater or less degree. In relation to the last alleged act of intercourse, said to have taken place only a year before the trial, the complainant swore that she provided the appellant with a condom which she had in her purse. When asked how she came to have one, she explained that when she was living at a womens' shelter -

"...every woman had to have a condom for protection so that they would not fall pregnant and I knew that Dad and I were having sex and he wouldn't stop unless I said something like this, so I carried it with me."

But when the police took her first statement they recorded the complainant as having said that she always carried condoms with her in case she needed them.

Next, there is what seems to be an inconsistency, with respect to the location of the appellant's wife when there occurred an act of intercourse between the complainant and the appellant in March 1992. In court, the complainant said that the wife was away in the Philippines on that occasion, but she had initially said, in her statement to the police, that the wife was at work on that occasion.

The complainant also admitted to shoplifting on one occasion, apparently when she was about 11 years old; before that admission she had said that she had never shoplifted. Again, in one of her statements the complainant said that her father would buy her lollies so that she would not tell people what he had done to her. She had not initially told the police that and when taxed with that omission she gave various explanations for it, saying that she was scared when she gave the statement, that she was embarrassed and that she did not want to tell the police.

More general criticisms of the complainant's evidence were that she had voluntary contacts with her father during the period when he was, according to her evidence, sexually abusing her. Her story was that she retained a love for her father; it appears to us that this was a question of credibility for the jury. Then, it was pointed out that she was admittedly in error about the year in which certain of the incidents in question occurred; it appears unnecessary to discuss that aspect.

To come now to the main point of the attack on the safety of the verdict, it is to the effect that the evidence the complainant gave about dreams she had had discredited her.

The complainant said that some of the allegations of sexual abuse of which she gave evidence - including one the subject of a count in the indictment - were initially not remembered and came back to her memory after she had dreamt about them. Subject to the possibility that a certain piece of evidence should be read as saying that all her allegations were first dreamt of, then complained about, it appears that none of the counts on which the appellant was found guilty were connected with these dreams. The piece of evidence relied on by Mr Jerrard as possibly meaning that all the allegations were first the subject of dreams occurs in a passage when the complainant was being cross-examined about what were described as addendum statements. These statements were taken in March 1994 and dealt with supplementary allegations of sexual abuse - in addition to the matters on which the appellant was convicted. The critical sentence is the third answer in the following passage:

"In that same addendum statement dated 22 March you also refer to oral sex, him licking you on the vagina and you having your mouth on his penis?-- True.

That's the first time you had mentioned those things?--

Same thing. Had a dream.

So you dreamt about that as well?-- I dreamt about all the

things."

Mr Jerrard drew attention to the possibility that "all the things" referred not to "those things", mentioned in the preceding question, but to "those things" and all the other allegations. The more natural reading of "all the things", in the context in which it occurs, is that the witness was referring to the matters the subject of the addendum statement or statements. But still there appears to be substance in the criticism of the complainant's evidence about the dreams, as weakening her credibility. There were some inconsistencies in what she said about the dreams. An example, connected with the passage just quoted, is that having said in effect that one of the things she had dreamt about was the oral sex incident, she shortly afterwards corrected that, saying that she had not dreamt it.

It seems likely that the jury had reservations about the evidence concerning the dreams; the only count which went to the jury on which the appellant was acquitted was that of anal intercourse, an allegation of an incident which she said she had forgotten, but subsequently remembered after she dreamt of it. The jury might perhaps have taken the view that, although there was no evidence that any of the matters charged, other than the anal intercourse, were allegations prompted by dreams, the complainant's evidence about the dreams made her whole story incapable of acceptance. But we are far from thinking that they were obliged to reach that conclusion. They seem to have acted on the basis that they should have a doubt about the allegation of anal intercourse, recollection of which was said to have been prompted by a dream or dreams, but otherwise were satisfied of the substantial correctness of the complainant's evidence.

On the complainant's evidence, the history of these events was a fairly complex one, and it would be a little surprising, and perhaps grounds for suspicion, if so young an alleged victim of sexual abuse had been able to give an impeccable account, free from inconsistencies and substantial uncertainties. As was suggested by counsel during the hearing, the complainant's account, read as a whole, does not strike one as being unusually confused or inconsistent. Although some of the points made by Mr Jerrard with respect to the credibility of the complainant have weight, we are by no means persuaded that the case is one in which this Court would be justified in concluding that the jury's verdict is unsatisfactory and should be set aside.

We would dismiss the appeal.