R. v. H

[1993] QCA 309

IN THE COURT OF APPEAL  [1993] QCA 309

SUPREME COURT OF QUEENSLAND

C.A. No. 110 of 1993

Brisbane

[R. v. H]

THE QUEEN

v.

H

Appellant

THE CHIEF JUSTICE

DAVIES J.A.

LEE J.

Judgment delivered 19/08/1993

JOINT REASONS FOR JUDGMENT OF THE CHIEF JUSTICE AND LEE J.  DAVIES J.A. DISSENTING.

APPEAL AGAINST CONVICTION ALLOWED.  ORDER THAT THE CONVICTION BE SET ASIDE AND A VERDICT OF ACQUITTAL ENTERED.

CATCHWORDS:                CRIMINAL LAW - PROCEDURE - FAIR TRIAL - Whether judge's transmission of private message to jury caused trial to miscarry

CRIMINAL LAW - VERDICTS - UNSAFE AND UNSATISFACTORY - Appellant convicted of indecent dealing with four year-old daughter of de facto wife - Only evidence against appellant given by girl's deaf and mute mother through interpreter - Whether verdict unsafe given inconsistencies in mother's evidence - Whether trial judge sufficiently emphasised need to resolve inconsistencies - Whether new trial warranted given unsatisfactory evidence and previous trial at which jury failed to agree

R. v. Crowe [1985] 2 Qd.R. 389

Morris v. R. (1987) 163 C.L.R. 454
Driscoll v. R. (1977) 137 C.L.R. 517
D.P.P. v. Fowler (1984) 154 C.L.R. 627

Counsel:Mr T. Carmody for the Appellant

Mr W. Clark for the Crown

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Crown

Hearing Date:  19 July 1993

REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND LEE J.

Judgment delivered 19.08.1993.

The circumstances of this trial were unusual.  We need to deal at length only with the first ground taken in the notice of appeal, namely that the verdict of the jury was unsafe and unsatisfactory.  This ground being raised it becomes necessary for the Court to form an assessment for itself of the strength and reliability of the Crown evidence: see Morris v. The Queen (1987) 163 C.L.R. 454.

On the second ground argued, although the course adopted by the learned trial judge in transmitting a private message to the jury was incorrect and had great potential to cause the trial to miscarry, the content of the message, as distinct from the mode of transmitting it, was not improper and if the jury had been given a similar communication in open court no valid complaint could have been made.  At a point about five hours after the jury had commenced their deliberations, and in response to a message from the jury through the bailiff that they were unable to reach a verdict, the judge instructed the bailiff to inform the jury that the judge said they were to keep trying.  In fact, this communication by the bailiff to the jury was overheard by defence counsel who consulted with the prosecutor but about twenty-five minutes later, before any further move had been made by them, the jury came back with their verdict.  We agree with Davies J.A. that no injustice resulted in the circumstances and the ground as a matter for intervention by this Court is not made out.

The appellant, who was being tried a second time because on a previous occasion the jury had failed to agree, was charged with only one offence, that is of indecently dealing with a girl, L, under the age of twelve.  At the time of the trial the girl was six years old.  She was the eldest child of the principal Crown witness, B, but the appellant was not her father.  The appellant and B had been living in a de facto relationship for some five years.  B’s younger daughter, J, aged five and son, M, four, both of whom were the appellant's children, lived in the same house with L, the appellant and B.  The two girls shared one bedroom, the boy slept in another while the appellant and B customarily slept in a third bedroom.

B was deaf and she said that she was not able to read very well.  There were words she would encounter which she did not understand.  In giving her evidence of the relevant event she displayed some uncertainty in fixing the occasion.  While she could not provide a date for it, in the end she agreed that it occurred about one month before a separation took place between the appellant and herself.  In her evidence she also displayed uncertainty whether the alleged event did or did not take place on the same night as one when the appellant had attended a venue to receive a sporting trophy.  These uncertainties were not by themselves of particular importance but they are probably part of the explanation why, in the indictment, the Crown charged the date of the offence in general terms.  The indictment alleged that the offence occurred between 31 October, 1990 and 7 October, 1991.

The real question in the present case is whether B should be taken as having displayed a lack of certainty about critical and central details of the offence itself.  When taxed with having provided a different version on earlier occasions she denied it saying, in effect, that if others took her to be saying something different, then they misunderstood her.  The Crown maintained that this was an acceptable explanation because of her disability and the need for her to communicate with others using sign language.  Indeed, at the trial, the jury would itself have been placed in a situation of some disadvantage in assessing her credibility because the operation of one of their customary advantages was reduced.  Questions addressed to B in the witness box were relayed to her by an interpreter using sign language and relayed back in the same fashion with the interpreter then speaking her replies on her behalf.

B’s evidence was in short compass.  To sustain the allegation there was only the one isolated incident to describe.  She said that on the night in question she had been asleep at home with the three children, the appellant having gone out.  About midnight she awoke alone in her room with the impression that a light was on somewhere in the house, perhaps in the kitchen.  She got up to investigate but the light went out or at least it was no longer apparent.  She went down the hallway to the kitchen but nothing was amiss and was returning along the hall when she noticed that the door into the girls' room was not closed.  She opened the door, switched on the light and said she saw the appellant standing beside L’s bed with the zipper of his jeans open and with his penis erect and in L’s mouth.  She said L was sitting on the bed with her legs extending along it.  B did not intervene or say anything.  She just walked away.  The appellant later joined her in their bedroom but she did not speak to him.  She said that he was drunk.

Following this episode she continued to live with the appellant as "man and wife" for about another month when she left with the two girls.  There were "sometimes" arguments during that month but she did not say what they were about.

Having separated from the appellant, she was concerned to have custody of the children but she had no objection to his having access to them, apparently unsupervised, on Sundays.  To secure her claim for custody she went first to the police but they advised her to go to a solicitor.  The implication was that she did not on this occasion mention to the police the alleged episode of indecent dealing.  She did mention it to her solicitor, however, when material including an affidavit in support of her claim for custody was being prepared.

When she was giving instructions to Mrs Sheehy, her solicitor, she was accompanied by her own mother and a friend "Sonya" who was there to provide assistance.  Her mother, she said, could understand her "very well" and she could communicate "well" with Sonya.  As the interview progressed her solicitor took notes and then the affidavit was typed up.  The interview with the solicitor took place only two days after B and the appellant had parted.  When the affidavit was prepared, B read it to herself and she had to ask about some of the words she encountered in it but then she signed the document.  The version given in this document was that the appellant was sitting on L’s bed (i.e. not standing beside it) and L was bending over him with his penis in her mouth.  B agreed that she had sworn in September, 1992 during the course of the first trial that her solicitor had read the affidavit over to her.

In her evidence in these proceedings, B agreed that she saw a member of the police force, a Detective Binney, about three weeks after she had spoken with her solicitor.  Detective Binney had with him a copy of her affidavit.  Also present on this occasion were a Mr Hillsden, an interpreter from the Queensland Deaf Society and another person, Lorraine, who was there to help B with her explanations.  Once again, B said she told this group that on the night in question she had seen the appellant standing at the side of L’s bed.

The explanation which she gave to the Court when pressed about difference in detail between her account at the trial and her earlier versions was that she was "confused" when speaking with her solicitor and later with Detective Binney, although she did not say what her confusion was about.  Her claim was that she had not told her solicitor or Detective Binney that the appellant was standing and her suggestion seemed to be that through the channels of communication employed at the interviews she may have been misunderstood but she did not detect that there was a misunderstanding on the part of those interviewing her nor did she notice the incorrect account when she read her affidavit.

A feature of the case was that there was no evidence called from B’s mother, or Sonya, or her solicitor, Ms Sheehy, or Lorraine or the interpreter Hillsden but Detective Binney was made available by the Crown for questioning by defence counsel.  There was also no evidence of the content of any version provided by L, although it seems that she had been interviewed and the interview video recorded.  Essentially, B’s version was that the adult witnesses apparently misunderstood her.  On the two separate occasions when it could be expected that the interviews would be conducted with care, no one had apparently detected that an error in transcription was being made or that some failure in communication was occurring.  The Crown called no one other than B to suggest that there was difficulty in communication on these occasions or that the circumstances of the interviews were such as might have led to it or induced some absence of clarity.  In this case then B was recorded as having made a definite statement on a matter central to her allegation but she says that she said no such thing.  The case is not one where she conceded that she may have spoken in the terms recorded but was able to provide an explanation of why she did so.  She simply denied any variation in her own accounts.

When Detective Binney gave his evidence it did not assist B.

Detective Binney said that he took pains to ensure that B understood him when he questioned her.  He said he asked her to give her version of what occurred and he then compared it with the account contained in the affidavit of which he had a copy.  He said she read out and reiterated that in the alleged episode the appellant was sitting on the bed and L was bending over him and that the appellant was not standing beside the bed.

There was, thus, a strong case made out that B had, comparatively close to the time of the alleged offence, provided a conflicting account of a central aspect of it.  She was at that time purporting to describe what the two persons involved in the activity were doing.  Later at the trial she described it differently.  This relates not to a collateral or unimportant matter but to the very action which constituted the alleged offence if she did indeed see what she said she saw.  Such an aspect of the case should not simply have been left to the jury to resolve as best they could, being allowed to think that they were entitled to convict if they considered there was some basis on which B could have given conflicting accounts while still being correct about the precise matter of indecent contact.  The jury should have been told in the clearest terms that if in their minds the possibility remained that B had given the account of the activity on two earlier occasions which varied from her trial testimony, then they should have the gravest doubt about the acceptability of her account at trial and with it the allegation of indecent dealing.  They should at least have been told this (cf. Driscoll v. The Queen (1977) 137 C.L.R. 517 at 536-7) even if they were not told something further, namely that they could not safely convict. In this case they were not given any such instruction and the summing-up did no more in this respect than leave the jury with the generalities of the prosecutor's submission simply repeated, viz. that because of B’s disability there was the possibility of confusion so that she might not in fact have said earlier that the appellant was standing beside L’s bed and further that the conflicts on matters of detail also could be regarded as not vital. The contrary defence claim that the variations were important was also repeated by the trial judge to the jury. However, the jury should have been given precise help on what their approach should be if they were unable to exclude the possibility that B had given the different description earlier. This lack of essential focus in the summing-up was not helped by a further direction, standard enough in other contexts, that the jury could accept part of what a witness said and not other parts. While the summing-up on a separate aspect warned the jury of the danger of convicting on the allegation of a sexual offence without corroboration it did not alert the jury to the particular danger in the situation with which they were confronted by the possibility of variation in B’s accounts. This lack of necessary and precise assistance to the jury in the summing-up means that the verdict should not stand.

Further, the fact is that the Crown case in terms of the witnesses called and not called was so attenuated as to provide no counterweight to the central weakness which has been discussed.  Only some positive support to B’s crucial claim that she must have been misunderstood on the two earlier occasions could have reassured a reasonable jury to the point where they could be regarded as entitled to act with safety on her allegations.  Here, the Crown evidence was of an unsatisfactory nature, there was no evidence from the girl L and there was no corroboration of her mother's account.  In our opinion the verdict should be regarded as unsafe not only because of the deficiency in the summing-up but also because the evidence on which it was obtained is lacking in cogency.  The question whether a new trial should be ordered is a matter of discretion:  see Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627 at 630. Apart from all else, the appellant has already been tried on one previous occasion. It is not part of this Court's function to order a retrial which will provide the Crown with an opportunity to present a stronger case. The appeal should be allowed, the conviction set aside and a verdict of acquittal entered.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND  C.A. No. 110 of 1993

Brisbane

BeforeThe Chief Justice

Mr Justice Davies
Mr Justice Lee

[R. v. H]

THE QUEEN

- and -

H

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 19/08/1993

The appellant was convicted in the District Court on 9 March 1993 of indecent dealing with a child under 12 years, for which he was given a suspended sentence of three years.  He appeals against that conviction.

The child concerned was the appellant's five year old step-daughter.  The offence was alleged to have been committed on a date unknown between 31 December 1990 and 7 October 1991.  The only evidence against him was that of his de facto wife, B.  B has a number of disabilities.  Her main one is that she is deaf.  It is possible that all of the others flow from this.  She can speak only in a garbled fashion and is consequently very hard to understand, and she has some difficulty in reading, the precise extent of which is not clear.  She communicates by means of sign language and lip reading.  Her evidence as to what occurred, both in the form of statements given outside court and of testimony in court was given through an interpreter.

The trial from which this appeal is brought is the second trial of the appellant for the above offence.  In the first, the jury was unable to agree.

There are two grounds of appeal.  The first is that the verdict was unsafe and unsatisfactory.  The second is that there was improper communication between the judge and jury.  It is convenient to deal with the second of those grounds first.

After the jury had been deliberating for about five hours, they privately communicated with the judge, by means of the bailiff, to advise him that they were unable to reach a unanimous decision.  Without re-convening the court or informing either counsel, the trial judge told the bailiff to inform the jury that they should "keep trying".  Counsel for the defence overheard the bailiff's direction to the jury.  The jury returned its verdict of guilty about five minutes later.

Counsel for the appellant concedes that, had the communication been made in open court he could not have complained of it; and that the verdict would undoubtedly have been the same had that communication taken place in open court.  There was therefore no suggestion that the judge put any pressure on the jury or that otherwise what he said was incorrect.  The objection was only to the form which the communication took.  Plainly, no miscarriage of justice, substantial or otherwise, resulted.  There is therefore no substance in this ground: R. v. Crowe [1985] 2 Qd.R. 389.

According to B, the incident which resulted in the appellant's conviction occurred in September or October 1991.  She said she had woken up about midnight and, after seeing a light on and then being switched off, had walked from her bedroom to the kitchen and down the hallway to the girl's bedroom where she observed the appellant in the room with his erect penis in the girl's mouth.  Without saying anything to him, she walked back to her own bedroom.  On one possible view of the case, there were inconsistencies between two versions given by B, in particular of the respective positions of the appellant and her daughter at the time she observed them.  It was this possible inconsistency and the failure of the learned trial judge to give any specific direction to the jury about it, which formed the main basis for the submission that the verdict was unsafe and unsatisfactory.  Other matters which, it was submitted, combined to make the verdict unsafe were that B continued to live with the appellant for at least a month after the alleged incident without making any complaint about his conduct either to him or anyone else;  that her relationship with the appellant terminated apparently as a result of "lots of arguments", rather than specifically because of this incident;  and that she made the allegation of this offence for the first time to a solicitor whom she had retained some days after the separation for the purposes of a custody application.

In her evidence at the trial, B swore that, when the child had the appellant's penis in her mouth she was seated on her bed and the appellant was standing beside the bed.  She had given similar evidence at the earlier trial.  However, in an affidavit filed in the Family Court in a custody proceeding shortly after she and the appellant had separated, and before the earlier trial, she stated that the appellant was sitting on the side of the girl's bed when the girl had his penis in her mouth.  B was cross-examined at some length about this apparent inconsistency.  She maintained throughout her evidence that the statement in the affidavit was an error made in obtaining from her her version of what took place.

One can well understand that such an error could have been made, notwithstanding that she admitted that she read the affidavit before she signed it, given her difficulty in communication and in reading.  But Snr. Constable Binney, who was the only other witness called in the case and who had a copy of her affidavit in his possession when he first interviewed B, said in evidence that B reiterated to him what was in her affidavit and did not ever say that the appellant was standing beside the bed when the alleged offence occurred.  Further, he said that he invited her in a general way to give her version and that her version was that the appellant was sitting on the bed at the relevant time.

On the occasion when instructions were taken for the affidavit, B’s instructions were translated by her mother and a friend, and on the occasion when she spoke to Snr. Constable Binney her instructions were translated by a Mr Hillsden from the Queensland Deaf Society.  None of the persons involved in translation, nor the solicitor to whom instructions were given, were called as witnesses, nor was any complaint made as to their absence.  It does not appear from the material before us whether any statements were obtained by the Crown from any of those persons and, if so, whether they were given to the defence.

Before it could convict the appellant, the jury had to resolve this apparent conflict.  It was explicable by B’s difficulties in communication and reading which the jury would have had an opportunity to observe and assess.  Or the jury may have thought quite reasonably that, for whatever reason, her only clear recollection of what she saw was that her husband had his penis in her daughter's mouth, notwithstanding her categorical evidence that the appellant was standing at the relevant time.  It is important to bear in mind the opportunity which the jury had to observe B in the witness box when she gave evidence.

The real question in this appeal is whether the trial judge made it sufficiently clear to the jury that they could not convict without first resolving this apparent conflict.  It is true that his Honour did not specifically direct the jury that it was necessary to resolve it and that he said that the "critical question" to decide was whether they were satisfied beyond reasonable doubt that the accused was found with his penis in the girl's mouth.  However, throughout the course of his summing up, the learned trial judge repeatedly drew the jury's attention to the apparently conflicting accounts given by B.

In canvassing in detail both the Crown's and the appellant's submissions on the ramifications of the apparent conflict, the trial judge spent a considerable proportion of his summing up discussing the parties' submissions as to the possible explanations for the inconsistencies.  These included the possibility that there was a misunderstanding at the time the affidavit was sworn as a result of difficulties in communication; that B, at the time of witnessing the alleged offence, had concentrated exclusively on what seemed to her the most important thing, that is, that the appellant's penis was in her daughter's mouth, and had overlooked "peripheral" details such as the parties' positions; and, finally, that her allegations were fabricated.  In particular, the trial judge directed the jury that it was for them to decide whether or not, as the defence had submitted, the inconsistencies were "critical" in nature.  It was in this context that his Honour recounted the defence submission that the inconsistencies were so important that they would lead the jury at least to have a reasonable doubt about B’s evidence and therefore the guilt of the accused.

The learned trial judge also repeatedly warned the jury of the danger of acting on B’s uncorroborated testimony because of the risk of fabrication.  His Honour explained that such a risk existed in all cases involving alleged sexual impropriety, but was heightened in this case by the presence of the inconsistencies in B’s accounts and by the other matters (to which I have already referred) which the appellant submitted rendered the verdict unsafe.  Throughout the summing up, his Honour stressed the relevance of the inconsistencies to the risk of fabrication.

In my opinion, the emphasis which the learned trial judge placed on the inconsistency issue in his summing up was such that the jury could have been left in no doubt that the resolution of the apparent conflict was integral to their decision.  This conclusion is reinforced by the heavy emphasis given to the effect of the apparent conflict on B’s credibility by both the Crown and the defence in the presentation of their respective cases at the trial.  Consequently I do not think that the verdict was unsafe and I would therefore dismiss the appeal.