R v Kemp

[1995] QCA 386

IN THE COURT OF APPEAL	[1995] QCA 386
SUPREME COURT OF QUEENSLAND	C.A. No. 82 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Shepherdson J.
[R. v. K]

T H E Q U E E N

v.

K Appellant

FITZGERALD P.
DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 29/08/1995

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT,

C ONCURRING AS TO THE ORDER

Appeal allowed and a new trial ordered

CATCHWORDS:	CRIMINAL LAW - unsafe and unsatisfactory verdict - unlawful and indecent dealing with a child in the appellant’s care - evidence against the accused included both specific and generalised evidence - whether the generalised evidence led against the accused presented special risks of unfairness to the accused which had to be addressed in the trial judge’s summing up - proper construction of s. 229B of the Criminal Code - whether trial judge’s directions were inadequate to ensure the accused received a fair trial
Counsel:	F. Connolly for the Appellant D. Bullock for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	30 May 1995

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 29/08/1995

On 8 February 1995, the appellant was convicted after trial on one count of unlawfully and indecently dealing with a female child under the age of 12 years who was at the time in his care, four counts of unlawful carnal knowledge of the girl when she was under the age of 16 years and in his care, and one count of maintaining an unlawful sexual relationship with the girl while she was under the age of 16 years and in his care: it was a circumstance of aggravation that, in the course of that relationship, the appellant had unlawful carnal knowledge of the girl while she was under the age of 12 years and in his care. The offence of maintaining an unlawful sexual relationship was count 1 on the indictment, which also alleged eleven specific offences; counts 2 and 3 charged indecent dealing and counts 4 to 12 charged unlawful carnal knowledge. The jury was unable to agree on count 2, acquitted the appellant on counts 4, 5, 6, 8 and 11 and convicted him on counts 3, 7, 9, 10 and 12. The appellant, who gave evidence denying the offences, has appealed against his convictions.

The appellant was born on 20 September 1946 and, in late 1990, was living at Helidon with at least some of the children of his first marriage; his first wife was dead. The appellant subsequently remarried, and, at the time of his conviction, had five children, ranging in age from 27 to 4 years.

The complainant, who was born on 14 March 1979, was in Grade 6 at school in 1990, and living with her father and some of her siblings at Acacia Ridge. Her parents were divorced. Her sister, P, who was born in 1976, was living at Helidon with the appellant and his family, and subsequently married the appellant.

Because the complainant was rebellious, she went, with her father's consent, to live with the appellant and his family and P at Helidon in November 1990. The offences of which the appellant was convicted occurred between then and late January 1993, during periods when the complainant lived with the appellant and his family. The complainant was under the age of 12 years until 14 March 1991.

Helidon: Counts 2 to 6 - November 1990 to January 1992

According to the complainant, the appellant indecently dealt with her the night she arrived at his home in Helidon. That incident was the subject of count 2 on the indictment, on which the jury was unable to agree.

The indecent dealing count on which the jury convicted the appellant was count 3, which also related to an incident at Helidon a few days after the complainant arrived at the appellant's home. The offence consisted of the digital penetration of the complainant's vagina. According to the complainant, there was similar conduct by the appellant every night for the following two or three weeks.

In his submissions specifically related to the appellant's conviction on count 3, his counsel pointed out that, on the complainant's evidence, the indecent dealing occurred at a location in the house which was visible from a number of other places in the house and easily approached by others living there and "others living in a caravan alongside the house, who also used the toilet and kitchen facilities".

The appellant was acquitted on counts 4, 5 and 6, which alleged offences of unlawful carnal knowledge at Helidon:

- between 30 January and 7 February 1991 - count 4

- between 7 April and 1 May 1991 - count 5

- between 30 April 1991 and 1 January 1992 - count 6.

The complainant also gave evidence that sexual intercourse occurred on other, unspecified occasions at Helidon, but that she could not remember any details: she said that intercourse occurred "first off every couple of nights for a while and then it slowed down to maybe once or twice a week". That was the only evidence upon which the jury could have found the circumstance of aggravation in count 1, i.e., that an act of intercourse occurred before the complainant's twelfth birthday. Before this Court, it was effectively conceded by counsel for the prosecution that the evidence was insufficient to establish that fact; while some of the complainant's testimony might, in a general sense, have indicated an earlier date, her evidence overall suggested that, apart from count 4 which the jury rejected, intercourse only occurred after she had commenced to take a contraceptive pill, which was when she was 12 years old. The appellant, who said that he had had a vasectomy prior to his first wife's death, stated that the complainant and her sister, P, took contraceptives with the consent of their father as a precaution and to alleviate menstrual problems.

Murphy's Creek: Counts 7 and 8 - January to May 1992
The appellant and his family, together with the complainant and her sister, P, moved to their first
house in Murphy's Creek, where, according to the complainant, there were a few acts of sexual
intercourse of which she was unable to give any details. Counsel for the appellant submitted that
such activity was unlikely "in a tiny house of single walls where a large family in the home and
two caravans alongside, all using the facilities, had seen nothing".

The appellant and his family, together with the complainant and her sister, P, moved to a second house prior to the end of January 1992. Another of the appellant's sisters, F, also resided there with them for part of the time. Further, for some months, perhaps March to May 1992, the complainant's father lived in a caravan near the house.

Count 7, on which the appellant was convicted, related to an act of sexual intercourse in the second house between 31 January and 31 March 1992. Count 8, on which the appellant was acquitted, related to intercourse in the caravan between 13 March and 1 April 1992.

A number of criticisms were levelled at the complainant's evidence on count 7, most of which were merely matters for the jury's consideration; it is appropriate, however, to note that the sexual activity which the complainant described in her evidence differed from earlier statements.

Reliance was also placed by the appellant upon the unsatisfactory evidence given by the complainant in relation to count 8.

The complainant described an act of sexual intercourse on the night before the appellant's daughter's wedding, when there were a number of visitors staying in the house and, on the evidence of some witnesses, the caravan. According to the complainant and her sister, F, they both slept in the caravan that night on the instructions of the appellant, but F gave no evidence which otherwise supported the complainant; on the contrary, their accounts differed significantly. On the complainant's account, she went to bed in the caravan, the appellant came in later and intercourse occurred, the appellant left and the complainant remained in the caravan: the complainant's evidence suggests that the appellant would have departed about 10.30 p.m. F gave evidence that, when she went to the caravan to go to bed prior to that time, neither the complainant nor the appellant was there. The complainant came in later, and she and F talked about the forthcoming wedding.

By late May 1992, the complainant and her sisters, P and F, were living with the appellant and his family at the second house in Murphy's Creek. Earlier, F had been residing with another family who wanted to adopt her. While living with them, F told them about photographs taken by P of some girlfriends posing topless in the bedroom and also that she and the complainant were taking a contraceptive pill.

The family complained to the police and, on 23 May 1992, the complainant and F were interviewed at school. Both girls denied any impropriety by the appellant.

Later that day, police officers visited the appellant's home with a warrant and searched it but found no evidence of an incriminating nature. The complainant and F were again interviewed, as was their father who was there at the time. The girls again denied any wrongful conduct on the part of the appellant.

The complainant and F returned with their father where he lived, but both stayed only a very short time. They then returned to the appellant's house at Murphy's Creek, and later went with him and his family to Mt. Morgan, where the complainant expressed a desire to live permanently with the appellant's family.

Rockhampton: Count 9 - May 1992 - guilty

The appellant and his family purchased a house at Mt. Morgan, and he had to go to Rockhampton a few days ahead of the others to complete the purchase, P remained at Murphy's Creek to complete packing and organise the removalist. The complainant went with the appellant to keep him company and keep him awake while driving at night. The appellant obtained one room at a motel, which had two beds in it, because it was cheaper.

Apart from a general contention that the complainant's evidence could not support a guilty verdict, the points made by the appellant's counsel were that the complainant's evidence of the sexual act lacked detail, the appellant was exhausted, and he and P "were living in an engagement situation in a happy home, and there was no suggestion of a rift at any time in their relationship which proceeded on to a happy marriage".

Mt. Morgan:  Count 10 - 31 May to 1 July 1992 - guilty
Count 11 - 31 May to 1 July 1992 - not guilty
Count 12 - 7 January to 29 January 1993 - guilty

Count 10 related to an act of intercourse on a night which the appellant and the complainant spent in the house at Mt. Morgan prior to the arrival of P, F and members of the appellant's family. The appellant's specific criticisms of this part of the complainant's testimony related to differences between her evidence and earlier descriptions of the sexual activity, and conduct which she described which, it was submitted, was "unlikely for a middle-aged man".

The complainant's evidence in relation to count 11 was similarly criticised, and, in addition, it was said that the appellant's activities that day, which involved driving long distances, made it unlikely that he would have had intercourse because "he suffered from a bad back condition". Perhaps more telling were discrepancies in the complainant's evidence of activities that day, and conflicts between her evidence and that of other witnesses.

When their father went to Mt. Morgan to bring them to his home on 16 July 1992, both the complainant and F were very upset and did not want to leave, but the appellant encouraged them to accompany their father, following which they kept in touch with the appellant's household by letter and telephone.

While the complainant and F were living with their father, they were interviewed by police on 20
July 1992, and again denied any misconduct by the appellant. The complaint on that occasion
was laid by F’s Murphy’s Creek family and the complainant's father.
The complainant and F continued to reside with their father, who instructed them not to go near
the appellant. However, in November 1992, in the company of three young men, the
complainant and F visited the appellant's home at Mt. Morgan and stayed for some days.

Although the complainant and F then returned home, the complainant again visited the appellant's home in December 1992 and remained there for about a month, into January 1993. On that occasion, she told the appellant's daughter, T, that, although she loved her father, she was drawn both ways and wanted to live permanently in the appellant's home.

Count 12 related to an incident in January 1993, when the complainant was a visitor to the appellant's home at Mt. Morgan. She said that she accompanied him to the home of a neighbour who was away on holidays: the appellant was permitted to receive messages on the neighbour's answering machine and was generally watching over the neighbour's property. P, who usually went, did not want to accompany the appellant on that occasion and the complainant went in her place. She went willingly although aware of the appellant's likely conduct, and intercourse occurred.

The specific complaint concerning the complainant's evidence of that occasion concerned discrepancies in her accounts at different times and the asserted improbability of one description which she gave of complex sexual acts, especially because of the risk of interruption by a neighbour.

The complainant also alleged that sexual intercourse occurred on four or five other unspecified occasions while she was living at Mt. Morgan with the appellant and his family. The complainant said that she came from the bedroom which she occupied with her sister, F, and had intercourse with the appellant in front of a heater. Other witnesses, the appellant's son, S, and his then girlfriend, C, both agreed that throughout that period they were sleeping in front of the heater each night. Further, it was said that the heater was located opposite the door to P’s room and also visible from a verandah room occupied by two other girls.

After the complainant had finished her evidence but was still in the witness box, the prosecutor sought and was given permission to adduce further evidence from her in relation to the appellant's conduct at Mt. Morgan on the basis that it was relevant to count 1. She said that the appellant often "used to come up to [her] and touch [her] breasts" and "say things like, 'Yep, they are growing.' "

As the appellant's counsel pointed out to the trial judge at the time, if he cross-examined on that evidence after having earlier concluded his cross-examination, it might highlight the evidence and give it importance in the minds of the jury. However, worse for the appellant was to come. F and C gave evidence confirming and expanding the complainant's evidence on this subject, with details of not mere touching, but grabbing and groping and manipulating the complainant's breasts, both outside and inside her clothing: the complainant's evidence contained none of those allegations. That evidence from F and C was the only evidence which confirmed any part of the complainant's allegations of sexual impropriety against the appellant.

After departing from Mt. Morgan in January 1993, the complainant lived with her father and, from time to time, with a woman whom she knew as "Auntie Jackie". During that period, Jackie met the appellant and took an instant dislike to him. Further, she told the complainant's sister, P, that she should report an earlier sexual molestation of both the complainant and P by their de facto stepfather, that is, a man with whom their mother lived after she and their father separated.

Subsequently, Jackie and the complainant's godmother had a conversation with the complainant's father and, following discussion of her molestation by her de facto stepfather, the complainant went upstairs with her godmother and, in a highly emotional state, alleged for the first time that the appellant had engaged in sexual misconduct with her.

Following that, the complaint which led to the appellant's charges and trial was made to police in late August 1993 by the complainant, her father and Auntie Jackie.

Reference has earlier been made to the verdicts at the appellant's trial. After those verdicts were returned by the jury, an unusual colloquy occurred between the trial judge and the jury foreman.

When the jury verdicts were returned, the prosecutor requested the return of the indictment to "check a point ... in respect of count 1", and then asked for the jury to be "tied up for just a few moments" while he raised a matter with the trial judge. The judge requested the jury members, telling them that he could not compel them, to go to the jury room and collect their belongings and return. In their absence, the prosecutor informed the judge that the jury's guilty verdict on count 1, including the circumstance of aggravation that sexual intercourse occurred when the complainant was under 12 years of age, could not be reconciled with the verdict acquitting the appellant on count 4. Discussion between the judge and counsel proceeded on the basis that his Honour could "correct" the verdict on count 1 to make it "accord with law".

Shortly afterwards, the jury returned and the following discussion occurred:

"HIS HONOUR:	Ladies and gentlemen, when you returned your verdict on
count 1, it was guilty.
FOREPERSON:	Yes, Your Honour.
HIS HONOUR:	And I believe I asked you did that include the circumstance
of aggravation.
FOREPERSON:	Yes, Your Honour.
HIS HONOUR:	Now, as we went through the verdicts and took them, with

respect to count 4, your verdict was not guilty.

FOREPERSON:	That's correct, Your Honour.
HIS HONOUR:	Now, count 4 charged carnal knowledge at a time when E

was under the age of 12.

FOREPERSON:	Correct, Your Honour.
HIS HONOUR:	So you found her not guilty of that.
FOREPERSON:	Yes, we did, Your Honour.
HIS HONOUR:	Or found K not guilty of that. Now, essentially, that is the

only charged act of carnal knowledge ---- FOREPERSON: Yes, Your Honour.

HIS HONOUR:  ---- that occurred when she was under 12.

FOREPERSON: Yes, Your Honour, but can I say something? We felt the way you summed up the other day that we could go on - the way we understood part one, the second part of part one, was if ----

HIS HONOUR:  If there was some ----

FOREPERSON: ---- carnal knowledge within that given period happened, if we had reason to believe, enough information to believe that it did happen in that period ----

HIS HONOUR:	If there was some other allegation by her ----
FOREPERSON:	Yes.
HIS HONOUR:	--- of some other act that she couldn't particularise as to
date or place.
FOREPERSON:	Yes. Yes, Your Honour.

HIS HONOUR: Well, I - that requires us to have a look at the first of those. It's rather difficult when a date isn't given in evidence, of course, to ascribe it to any particular period. Essentially, you are saying that you are satisfied that there was another act of carnal knowledge at some time before 13 March in 1992.

FOREPERSON:	Yes, Your Honour.
HIS HONOUR:	I have all sorts of notes and - I'm sorry, 14 March 1991.

That was her twelfth birthday.

[PROSECUTOR]:	Page 83 might be what Your Honour is looking for, at
about line 19.  HIS HONOUR:	Yes. Well, save me time and just read it to me,
[Prosecutor].
[PROSECUTOR]:	Yes. Question by myself to E:

'Now, did his behaviour ever develop past just touching you on
the vagina? -- Yes.
Can you tell us when that happened? -- After we came back from
the holidays. It was on the first day of school, but we didn't go to
school that day. Everybody was tired from the trip.'

And then she went on to explain that that was a day the others went over to T’s place and she and the accused stayed there. Essentially, the Crown case has always been, therefore, that that was the first occasion when unlawful carnal knowledge took place.

Now, that was on 1 January. If the jury ----

HIS HONOUR:  'Just after you came back from this'.

[PROSECUTOR]: Yes, it was the end of January, the beginning of February. If the jury are satisfied beyond reasonable doubt that the other carnal knowledge which she referred to as occurring after that took place before 13 or 14 March, then the verdict can stand, but not otherwise.

HIS HONOUR: Well, the jury's reasoning is on record now and I will record the verdict as it was given. It's clear from what the foreman has said that there is no reliance on facts that were alleged with respect to count 4, that there is reliance on other facts in the evidence. Well, thank you. We just wished to clear that circumstance up. it's a matter of fairness, of course, to the accused.

... 
HIS HONOUR:  I'll treat that as the alternative, really, to a special verdict.

[PROSECUTOR]: Yes, that would - it occurs to me, the way they came back and responded, that that was the other alternative, that Your Honour could have asked them on what basis they found it, whether it was that act or some other act.

[DEFENCE COUNSEL]: Well, with respect, Your Honour, it seems very odd that they can pluck something and when they find it didn't happen in count 4, in my submission, it would be better to ignore the added circumstance of aggravation.

HIS HONOUR:  My view, ... , is that it's better not to engage in an

unseemly or even a seemly argument with them on that. [DEFENCE COUNSEL]: Well, quite, Your Honour.

HIS HONOUR:	And to leave you and K to any remedies that you have in
the Court of Appeal.
[DEFENCE COUNSEL]:	Yes, Your Honour.
HIS HONOUR:	I have some views about reliance on general unstated and

unparticularised and undetailed allegations. I understand that sometimes that is all people cay say, but in any event, I think all the facts of their reasoning are now on the record.

[DEFENCE COUNSEL]:  That's so, Your Honour.

HIS HONOUR: If we all took the trouble to pore through the record, once again, no doubt we'd find a reference or not be able to find a reference that supports their verdict. Yes. Well, just call on K."

As stated earlier, it was effectively conceded before this Court that the jury's finding that there
was an act of intercourse between the appellant and the complainant before her twelfth birthday
cannot be sustained. Not surprisingly, this defect in the jury's verdict on count 1 was emphasised
in submissions for the appellant.
That aside, the appellant's wide-ranging submissions cannot be easily summarised. Some related
to the proper construction of s. 229B of the Code, or to its legitimate use, consistently with the
right of an accused person to a fair trial. In this context, particular reference was made to the
difficulties occasioned an accused person when an offence against sub-s. 229B(1) is not fully
particularised or even limited to other offences joined in the indictment pursuant to sub-s.
229B(2), how those difficulties are magnified when the evidence against the accused includes
both specific allegations and generalised evidence, and how the problem is again exacerbated
when evidence includes both serious and less serious offences and there is corroboration - or
perhaps direct corroboration - only for the less serious offences.

Although sometimes apparently related to the joinder of the charges against the appellant in a single indictment and sometimes to objections to admissibility of evidence (not necessarily taken at trial), these matters can best be considered in relation to the appellant's complaints concerning the trial judge's summing-up, which was one of the two principal bases of appeal; the other, principal contention for the appellant was that his convictions should be quashed and verdicts of acquittal entered because the verdicts are, and any verdicts based on the complainant's evidence would be, unsafe and unsatisfactory.

Counsel for the appellant analysed the evidence in considerable detail, including the evidence in relation to the offences of which the appellant was acquitted, in the course of an attack upon the credibility of the complainant. Attention was drawn to contradictions and other inconsistencies, suggested improbabilities, and conflicts with evidence from other witnesses. Further, it was emphasised that the complainant had exhibited no signs of distress, made no protest and failed to take advantage of many opportunities which she had to complain, instead consistently denying over a considerable period any impropriety by the appellant. Thus, for example, in the period when she was living with the appellant and her sister at Helidon, she had regular contact with her family, including periods when she lived with them, but made no complaint to her father, or gave any indication of any misconduct by the appellant. Nor did she mention what she alleges was occurring to her sister, P, or the appellant's daughter, T, who lived in the appellant's household, with each of whom she shared a close and affectionate relationship.

It was also emphasised that the jury's verdicts generally corresponded with a division of the offences alleged into two categories. Apart from count 2, on which the jury could not agree, the appellant was acquitted on all counts where there was evidence from other persons which contradicted or was inconsistent with the complainant's testimony. The appellant was convicted if the only evidence in relation to an offence was "word against word"; i.e., the complainant's allegation against the appellant's denial. It was submitted that, despite its apparent disbelief of the appellant's evidence, the demonstrated unreliability of the complainant's evidence in relation to the offences of which the appellant was not convicted ought to have raised a reasonable doubt in the jury's mind concerning the reliability of her evidence against the appellant when there were no other witnesses, and no corroboration (except such corroboration as was provided by F and C’s evidence of the appellant touching the complainant sexually).

Some of the appellant's criticisms of the complainant's evidence do not take him very far; thus, for example, the complainant's failure to protest or complain and her initial denials of impropriety by the appellant are quite consistent with her corruption, whether by the appellant or earlier, and her willing participation in sexual activity with the appellant. Further, defects and deficiencies in evidence do not necessarily mean that a witness is untruthful or unreliable; it is a matter of degree. In the end, although there is force in the appellant's submissions and features of the complainant's evidence give cause for concern, I do not consider that a properly instructed jury could not reasonably have arrived at the guilty verdicts against the appellant; the evidence is not such that an appellate court must hold, following convictions on that evidence, that there was a significant possibility that an innocent person had been convicted.

However, the state of the complainant's evidence against the appellant is obviously a matter to be brought to account in considering the sufficiency of the trial judge's summing-up to the jury.

It is unnecessary to discuss each of the many complaints made of the summing-up; a substantial number had not been taken at trial and/or were insignificant. The matters of substance can be discussed by reference to the following three aspects of the summing-up.

1. The trial judge gave considerable emphasis to the importance of the complainant's

testimony; it was pointed out that she and the appellant were the "two key witnesses", and she
and her credibility were " ... the linchpin upon which the case depends".

2. His Honour informed the jury that he did not propose to canvass the evidence relating to counts 2 to 12 which had been discussed at length by counsel and that "... if you do not accept E as a credible witness ... then it would be dangerous for you to reject counts 2 to 12 as having happened, and yet rely upon [her] general statements ..." concerning offences of which she was unable to give detailed evidence. However, he then proceeded to read to the jury all the "... evidence ... in relation to offences that come within the count 1 charge ..." which had "not been the subject of particular evidence ...", including the evidence of the complainant, F and C with respect to the appellant touching the complainant sexually. That generalised evidence assumed importance in the jury's deliberations, as can be seen from the discussion which followed the jury's return of its verdicts.

3. His Honour moved next to the issue of corroboration, which he told the jury " ... looms large in this case, and will no doubt loom large in your deliberations". Further, he said:

"Well, that's the evidence in relation to those particular acts ['touching of the complainant's breasts'] subject to what I'm about to say in relation to corroboration. It will be for you to determine whether you accept E beyond reasonable doubt, with respect to those 'touchings', bearing in mind that she did not speak of touching underneath clothing. That she did not complain about the touching on the bottom as C suggests, so you can put that completely out of count. The touching that she speaks of was not elaborated upon in the way that C or F elaborated by demonstration. In any event, there is that particular body of evidence, all of which, as I say, is denied."

...

To put it shortly, the evidence that corroborates a complainant's evidence is evidence from a source other than the complainant which supports hers by showing or suggesting that the offence complained of has been committed and that the accused is the person who committed the offence. ...

...

... subject to that ruling with respect to the existence of corroboration of the evidence of the touching of the breasts, I will tell you that, for your purposes, you are to proceed on the basis that there is no evidence other than E’s. There is no corroborating evidence. You have to, therefore, bear in mind the dangers of acting on that evidence. That does not mean that you cannot record convictions of guilty, because the law does not make the existence of corroboration essential to a conviction. What it says is I must remind you of the dangers of acting on uncorroborated testimony; I must make you aware of the dangers; I must have you thinking about them at all times.

But if, remaining conscious of that warning that I have given; if, being conscious of the possibility of doing an injustice, then nonetheless you reach the conclusion that E is telling the truth and that the events did occur as she has related them; if you have no doubt about it then you can act upon her evidence. Do you understand what I am saying, that complaints of sexual activity, as I say, sometimes are made for no reason at all, sometimes they are made for a variety of reasons. False stories can be easily fabricated, they can be extremely difficult to refute. None of us wish to do an injustice. If you ponder that warning and come to the conclusion that she is telling the truth, and that you have no real doubt about it you can act on her evidence.

Now that is all that is involved in the law. Of course you will not need to worry yourself about the absence of corroboration if you do not believe E, or if, having looked at all of the evidence and considered the evidence in particular from the defence witnesses, if you are left in some doubt about the accuracy of her evidence, if you are in a position where you do not feel confident at all of acting upon her evidence, of relying upon her evidence, then you will have that reasonable doubt that obliges you to record verdicts of not guilty.

You see you have to be thoroughly convinced of the accuracy of E’s evidence before you can act on it. If you are not, there is no need to look for corroboration. In relation to the touching of the breasts, where as I have said, there is evidence capable of being regarded as corroboration, of course you have to be satisfied that C and F are being truthful and giving a correct account when they describe what I just read to you. Someone whose evidence is unreliable cannot corroborate another person and if E is regarded as unreliable then there is no need to worry about whether she is corroborated or not."

His Honour later redirected twice with respect to corroboration, once following a request by the jury for clarification and once at the request of counsel for the appellant. It is desirable to quote the latter passage:

"Well ladies and gentlemen, I have brought you back because counsel have helpfully suggested that I may be able to assist you by putting this matter of corroboration in the form of a simple proposition. There are 12 charges. Counts 2 to 12; the indecent dealing by digital activity and carnal knowledge are counts with respect to which there is no corroboration.

In so far as the facts involved in counts 2 to 12, also for the factual allegations for count 1, again there is no corroboration, and as I pointed out, that is actually the case, not only with respect to the charged conduct, but with respect to similar conduct referred to in E’s evidence. So there is only one area left, and that is the touching of the breasts aspect, which also falls within count 1, and with respect to that, as I have pointed out, there is for your consideration, C’s and F’s evidence.

Now also it's been suggested that in speaking to you of the danger and the warnings and the question of whether you will act on it that I remind you that the guiding light that controls all the proceedings in this case is reasonable doubt. You have to be satisfied beyond reasonable doubt that the accused is guilty of each of the accounts, and when considering E’s evidence, you have to be satisfied beyond reasonable doubt that she is telling the truth in respect of the matters relevant to each of the counts.

Well we'll leave it at that, but I hope that way it's perhaps a little clearer. We've come from the other direction with a simple proposition. In the main, no corroboration for counts 2 to 12 and none for count 1 save with respect to any touching of the breast that you are satisfied beyond reasonable doubt occurred."

In O'Neill (C.A. No. 435 of 1994, unreported, judgment delivered 4 August 1995), I discussed, at length, the fundamental right of an accused person not to be tried unfairly. One associated principle is that a trial judge has power to exclude admissible evidence to ensure that a trial is fair to an accused, including evidence made "admissible and probative" by sub-s. 229B(1) of the Code. A variety of circumstances can give rise to the need to exercise that power; for example, that the accused was not adequately informed of part of the case against him in time to challenge and meet it properly, that evidence lacks the necessary specificity to enable the accused to challenge and meet it, or that the prejudicial effect of evidence is disproportionate to its probative value, etc. Further, and more importantly in the present case, when evidence with a potential for unfairness to the accused is received, the trial judge's summing-up to the jury must include whatever directions are necessary to ensure that the accused's trial is fair. There are many recent authorities which bear out these propositions; see, for example, Bradley (1989) 41 A.Crim.R. 297; Longman v. R. (1989) 168 C.L.R. 79; S. v. R. (1989) 168 C.L.R. 266; R. v. Turney (S.A. CCA No. 305 of 1989, unreported, judgment delivered 18.1.90); Podirsky v. R. (1990) 3 W.A.R. 128; R. v. Butun (W.A. CCA No. 191 of 1990, unreported, judgment delivered 15.2.91); R. v. Cooper ( Vic. CCA No. 92 of 1991, unreported, judgment delivered 6.12.91); R. v. Beserick (1993) 30 N.S.W.L.R. 511; R. v. O'Brien (N.S.W. CCA No. 60483 of 1992, unreported, judgment delivered 5.11.93); R. v. F (C.A. No. 439 of 1994, unreported, judgment delivered 12.12.94); G. v. R. (S.A. CCA No. 13 of 1995, unreported, judgment delivered 4.4.1995); R. v. Thorne (Vic. CCA No. 33 of 1995, unreported, judgment delivered 9.6.95): cf. R. v. Hamzy (N.S.W. CCA, unreported, judgment delivered 5.8.94).

Of course, the right of an accused person not to be tried unfairly is not concerned only with the reception of evidence and the trial judge's responsibility in summing-up to the jury. Thus, for example, sub-s. 567(2) of the Code permits the joinder in a single indictment of charges for more than one indictable offence "if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose", and specific provision is made in sub-s. 229B(2) for a single indictment to include charges for an offence against sub-s. 229B(1) and any other offences "of a sexual nature alleged to have been committed by [the accused person] in the course of the relationship in issue in the ... offence ..." against sub-s. 229B(1). (Sub-section 229B(2) also states that an accused "... may be convicted of and punished for all or any of the offences so charged ...", although a proviso limits the sentencing discretion.) However, s. 597A empowers the Court to order separate trials in respect of offences joined in the same indictment if "the accused person may be prejudiced or embarrassed in his defence ... or for any other reason it is desirable ..." that there be separate trials, and the special risk of unfairness to an accused against whom sexual offences are joined in one indictment has been authoritatively recognised: e.g., in De Jesus v. R. (1986) 61 A.L.J.R. 1; and R. v. B. [1989] 2 Qd.R. 343. Separate trials can be ordered if the evidence which the prosecution proposes to adduce in relation to a count alleging an offence against sub-s. 229B(1) cannot be satisfactorily restricted to prevent unfairness to an accused person in relation to other counts alleging specific sexual offences; often, all the offences will be able to be tried together on the basis that the prosecution will not offer evidence which would make the trial unfair to the accused.

Ultimately, if all offences are tried together and all evidence tendered by the prosecution is received, it remains the trial judge's duty to ensure that the trial is fair to the accused by his or her summing-up to the jury. It is by reference to that consideration that the present matter falls to be decided. Section 229B of the Code does nothing to lessen a trial judge's responsibility in that regard; on the contrary, it commonly places a significantly increased burden on the trial judge. Thus, for example in a case like the present, the summing-up must take account of the difficulties faced by an accused person when charged not only with specific conduct but with such an inherently broad and imprecise concept as a "relationship" of a particular character; as used in this case, s. 229B involves a significant departure from the traditional requirement that an accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act matter or thing alleged as the foundation of the charge": Johnson v. Miller (1937) 59 C.L.R. 467 at p. 489, per Dixon J.; see also Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at 362, where his Honour said that a person is not to be convicted on "inexact proofs, indefinite testimony, or indirect inferences".

More generally, an accused in a case such as the present faces all the potential unfairness identified in S., including the risks that he will be convicted on the basis of the jury's conclusion that he has a propensity to commit sexual offences and that his conviction on a charge alleging a breach of sub-s. 229B(1) might, in part, depend on different conclusions by different jury members in relation to various parts of the complainant's generalised evidence. Thus, in the present case, it is impossible to determine, for the purpose of sentencing or otherwise, whether the jury was satisfied to the requisite standard of any misconduct by the appellant towards the complainant other than the activities the subject of counts 3, 7, 9, 10 and 12, and, it seems from the trial judge's discussion after the verdict with the jury foreman, an unidentified act of sexual intercourse prior to the complainant's twelfth birthday.

Further, on the approach adopted to s. 229B by the prosecution in this case, not only may a single act be at the one time an offence and an essential element of a different offence, but the latter offence may also consist of other conduct which is not separately charged, which might be either similar or dissimilar to the act specifically charged and of which the only evidence might be generalised and inexact.

In an attempt to facilitate the prosecution and conviction of child molesters, the legislature has, by s. 229B, increased the risk of unfair trial and miscarriage of justice; in consequence, trial judges must be astute to ensure that their rulings and directions are scrupulously correct and that accused persons are tried fairly. In my opinion, prosecutors have a similar responsibility in formulating charges and deciding on the evidence to be called; their role is not to seek to take advantage of every opportunity to secure conviction on the maximum number of the most serious charges in a single trial irrespective of the effect on the fair trial of the accused or any prospect that an innocent person may be unfairly convicted.

The critical issue for the jury in the present case was the truth and accuracy of the complainant's evidence. Preference for her evidence over that of the appellant, and even positive disbelief of his evidence, did not absolve the jury from the duty to acquit the appellant unless satisfied beyond reasonable doubt of the credibility and accuracy of the complainant's evidence, or the trial judge from the obligation to instruct the jury clearly that that was its duty: see Liberato v. R. (1985) 159 C.L.R. 507; e.g., per Brennan J. at p. 515 and Deane J. at p. 519.

Further, the trial judge was obliged to tell the jury that, in evaluating the complainant's evidence in order to decide whether it was so credible and reliable that it satisfied the jury that there was no reasonable doubt but that the appellant was guilty, it must take into account in favour of the appellant:

(1)	the lack of specificity in parts of the complainant's evidence;
(2)	that the complainant's allegations, especially those made in general terms, were difficult for the appellant to test or contest (except by his own testimony) when there was no third person able to give material evidence;
(3)	the general conflict between the complainant's allegations and other evidence from third persons whenever that was available;
(4)	that the significance of those conflicts was not confined to the particular segments of the complainant's evidence which directly conflicted with evidence from third persons, but the pattern of conflicts incrementally eroded the credibility and reliability of her evidence generally.

The generalised evidence which the prosecution led against the accused - generalised allegations of sexual intercourse between the appellant and the complainant and of him penetrating her digitally and otherwise touching her sexually - presented special risks of unfairness to the accused which had to be addressed in the summing-up. The relevance of such evidence in relation to an alleged contravention of sub-s. 229B(1) is clear, and the prosecution submitted that, in any event, the evidence was admissible in relation to all offences alleged against the appellant as evidence of his "guilty passion" for the complainant. Once properly received for any purpose, the evidence was probative of any other matter in relation to which it was also admissible: B. v. R. (1992) 175 C.L.R. 599.

The orthodox view in Queensland is that evidence of "guilty passion" is admissible in prosecutions for sexual offence, subject to the Court's discretion to exclude "unnecessary" evidence in fairness to the accused: see Bradley and Beserick. The admissibility of guilty passion evidence has been based on various grounds, and in particular circumstances it might be probative of specific matters which bear a logical relationship with guilt or innocence; for example, motive. However, the general basis for admissibility of guilty passion is that it is evidence of the relationship between the complainant and the accused and part of the background against which evidence of their conduct, or the accused's conduct, falls to be evaluated; this "true and realistic" context is seen to assist the jury to decide whether a complainant's evidence in support of the charges against the complainant is true.

While that might well be true in some circumstances even when the only evidence of her relationship with the accused comes from the complainant herself, in other circumstances relationship evidence from the complainant will have little or no legitimate probative value; for example, if the relationship evidence does not logically add to or detract from the probability that disputed critical matters occurred.

In this case, for example, effectively referred to by the trial judge as primarily a contest of "word for word", the complainant's generalised evidence had no more than minimal, if any, probative value in relation to her specific allegations against the appellant. The credibility and reliability of the complainant's testimony that she had impermissible (even if consensual) sexual contact with the appellant on a number of specific occasions could not rationally be bolstered - or for that matter undermined - to any significant extent merely by her evidence that sexual activity also occurred on a number of other, unspecified occasions; there is nothing in the complainant's wider account of her relationship with the appellant which throws any light - or shadow - on the truth or accuracy of her evidence overall or in relation to particular matters.

Further, there are obvious problems associated with evidence of the relationship between a complainant and an accused which alleges the commission of other offences by the accused and hence, because of his criminal conduct or character, his propensity to offend, leading in turn to an inference that he committed the offence or offences with which he is charged. As a matter of principle, it is difficult to perceive why the admissibility of such evidence should not be subject to the test for propensity evidence established in Hoch v. R. (1988) 165 C.L.R. 292 and Pfennig v. R. (1995) 127 A.L.R. 99; however, that need not be decided in this case, which is primarily, at least, concerned with the adequacy of the trial judge's summing-up.

In my opinion, it was incumbent on the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong.

Further, the trial judge was required to direct the jury in clear, unequivocal terms that the complainant's generalised evidence could not be used by them in their evaluation of her specific allegations against the appellant except that, if they did not believe, or had a doubt about the credibility or reliability of, her generalised evidence, that was a matter to be brought to account in favour of the appellant in their consideration of the complainant's specific allegations.

It was also necessary for the jury to be told that disbelief or doubt concerning all or any of her specific allegations was a matter to be considered, in favour of the appellant, when evaluating the complainant's generalised evidence.

The evidence with respect to the appellant regularly touching the complainant sexually needs further consideration because evidence of touching was given by F and C as well as the complainant.

The complainant's evidence in relation to count 1 consisted of her specific allegations against the appellant and her generalised evidence of sexual intercourse and digital penetration and her evidence that her breasts were regularly touched by the appellant. F and C’s evidence of sexual touching corroborated the complainant's evidence of touching, allowing the jury to be more comfortably satisfied that the appellant regularly touched the complainant sexually, subject at least to a matter referred to below. In my opinion, particularly in a context in which he had told the jury that corroboration "... looms large in this case and will no doubt loom large in your deliberations", the trial judge was required to spell out in clear terms to the jury what, if any, role their conclusion that the appellant had regularly touched the complainant sexually could play in their consideration of other specific and generalised allegations by the complainant, including the considerably more serious offences involving sexual intercourse and digital penetration.

Further, it was essential for the trial judge to point out to the jury not only the limited support which the complainant's evidence received from the evidence of F and C but also the conflicts between the complainant's evidence and that of the other two girls, and to explain to them that regard should be had to that conflict in assessing the credibility and reliability of the complainant's testimony, not only on the touching issue but generally.

While I do not suggest that the trial judge's directions to the jury failed to meet all of the requirements which I have spelt out, in my opinion, in the difficult situation which the prosecution case presented to both the accused and his Honour, his directions were inadequate to ensure that the appellant had the fair trial to which he was entitled. That entitlement is not qualified by notions of fairness to the complainant or the community, and references to such considerations are meaningless unless as qualifications of an accused person’s right not to be tried unfairly. It is not open to the judiciary, at least at this level, to introduce a new theory of what is in the public interest into this area of the criminal law. The doctrine that an accused person is not to be tried unfairly is entrenched in the common law, which accepts the paramountcy of that public interest over competing interests in the vindication of victims and the conviction of guilty persons.

I can see no possible basis for the operation of the proviso to sub-s. 668E(1) of the Code in this case and, in my opinion, the appeal should be allowed and a new trial ordered. If the charge of an offence against s. 229B of the Code is pursued, the circumstance of aggravation previously alleged must be omitted.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 29th day of August 1995

The facts giving rise to this appeal, and the trial from which it is brought, are set out in the reasons for judgment of the President which I have had the advantage of reading. Subject to what I say below, I am content to adopt his Honour's statement of the facts and of the course which the trial took. The appeal, which is against all six convictions, was substantially on two grounds: the first was that the verdicts were unsafe and unsatisfactory; and the second was on the basis of the inadequacy of the learned trial Judge's directions to the jury.

Subject to the verdict on the charge under s.229B, I agree with the President that a properly instructed jury could reasonably have arrived at the guilty verdicts which they did. The qualification is made because, as was in effect conceded, a verdict on count 1 with the circumstance of aggravation that the appellant had unlawful carnal knowledge of the complainant when she was under the age of 12, was against the weight of the evidence and was unsafe. Subject to that qualification there is no substance in the ground that the verdicts were unsafe and unsatisfactory except to the extent that misdirections referred to below caused that result.

Charges of multiple sexual offences by an adult against a young child living in the same household may create difficulties for a fair trial, that is one which is fair not only to the accused but also to the complainant and to the State representing the community concerned to see justice done according to law. Often the trial takes place a considerable time after the commission of the offence, a common reason being the conduct of the offender or at least his relationship with the complainant, involving a position of dominance over the complainant. For that reason and also because of the frequency of offences over a prolonged period, the complainant may be unable to specify, with the particularity which is commonly required in criminal offences, the time, place and circumstances of any specific offence. Yet the failure to particularise to that extent may result in a mistrial: S. v. The Queen (1989) 168 C.L.R. 266.

Those difficulties, together with the need to provide a more substantial penalty for multiple offences of this kind, appear to have been the reasons for the introduction of s.229B: Second Reading Speech on The Criminal Code Evidence Act and Other Acts Amendment Bill, 21 April 1988, (1988) 308 Qld. Parliamentary Debates 6310; R. v. F (C.A. No. 439 of 1994, 12 December 1994, unreported at 14). However, as this case illustrates, a charge under that section raises additional problems of fairness to an accused in being able to meet it for the very reason that the section appears to permit conviction without the need to particularise the date or exact circumstances of any specific sexual offence. Those problems are increased where, as here, a charge under s.229B is joined with charges of specific sexual offences and where, as also occurred here, evidence is admitted of a continuous sexual relationship. There is then a risk that the jury might convict on one or more of the charges on the basis of a general disposition and that they might convict on the charge under s.229B although they might not be agreed on which acts constituted the three or more offences of a sexual nature required by that section.

Because s.229B plainly envisages that a trial of a charge under it may take place notwithstanding that the evidence does not disclose the dates or the exact circumstances of the occasions and also envisages that a charge under that section may be joined with one for a specific sexual offence, neither those circumstances, either alone or together with the admission of evidence of the whole of a sexual relationship between the accused and the complainant, without more, make the trial unfair. However they do require the exercise of considerable care by the trial judge in directing the jury.

In this case only one specific event of unlawful carnal knowledge, count 4, was alleged to have occurred before the complainant's 12th birthday and the appellant was acquitted on that count. There was then some general evidence of intercourse though, as the President has pointed out and as was effectively conceded, the better view, and perhaps the only reasonable view, of the complainant's evidence was that, apart from count 4, she did not assert intercourse to have occurred until after she attained 12 years of age.

With hindsight it can now be seen that the learned trial Judge should have directed the jury that, if they did not convict on count 4 then they should not convict on count 1 with that circumstance of aggravation. He did not do this. And as appears from the exchange between his Honour and the foreman of the jury after the verdict had been taken, the jury thought themselves entitled to conclude, on the basis of the general evidence to which I have referred, that intercourse had taken place on some occasion or occasions, other than that alleged in count 4, before the complainant's 12th birthday. That verdict, it is now conceded, is unsafe. On the retrial which must be ordered that circumstance of aggravation should be deleted.

For the reasons I have given, the case also required a number of other directions to be given which were not given. First the learned trial Judge, in my view, should have told the jury what use could be made of evidence of sexual conduct other than those particularised in counts 2 to 12. He should have told them that it was admissible on two bases only: the first as evidence of acts which the jury could conclude were offences for the purpose of deciding whether the appellant was guilty of the offence under s.229B; and the second as evidence of similar facts showing the relationship between the appellant and the respondent; S. at 271, 275, 279 and 281. His Honour should have emphasised to the jury that that evidence should not be substituted for the evidence on the specific counts 2 to 12 in order to convict the appellant of any of those specific offences; and he should have told them that that evidence should not be used to convict the appellant in respect of any of the offences of which he was charged on the basis that it showed a general disposition to commit offences of that kind.

Secondly his Honour should have told the jury that, in order to convict the appellant of the offence under s.229B, they must be satisfied that on three or more occasions the appellant had done an act of the defined kind; that those acts could but need not include one or more of the acts the subject of counts 2 to 12; but that whether they did or not the jury should be agreed upon at least three of the acts as constituting the offences of a sexual nature for the purpose of s.229B whether or not they were acts particularised in the evidence as to dates or exact circumstances.

His Honour's failure to direct the jury on these questions, in my view, caused the trial to miscarry. For the reasons I have given I agree with the order proposed by the President that the appeal should be allowed and a new trial ordered on the counts on which the appellant was convicted subject to the qualification which I made earlier with respect to count 1.

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 29 August 1995

I have had the benefit of reading in draft the reasons for

judgment of the President. I agree with him that the appeal

should be allowed and for the reasons he has given and that a new

trial should be ordered.

However, I wish to add the following comments. The decision

in Witham (1962) Qd.R 49 is regularly relied on by prosecutors in

cases of the present type. Its application can cause a trial to become unfair as the present appeal shows. In TJW; ex parte A-G

(1988) 2 Qd.R. 456 the Queensland Court of Criminal Appeal

confirmed the authority of Witham. In Bradley (1989) 41 A Crim R 297 the Queensland Court of Criminal Appeal continued to apply

Witham.

In TJW, the Court, on an Attorney-General's reference was

asked:

"Has the decision in Witham (1962) Qd.R 249 where it was held that evidence of acts of indecency by an accused person upon a complaint before and after the alleged sexual offence is admissible been overruled?"

and the Court answered this question: "No".

In the present case the jury had evidence from the complainant of many incidents of sexual contact or intimacy between the appellant and the complainant of which incidents the complainant was unable to give details.

The present case now before this Court and its outcome should

give prosecutors and persons drawing charges in indictments cause

for concern. I repeat part of my judgment in Bradley (supra) at
p. 302:

"... it is ... not necessary that in every case the whole history of sexual activity between an accused person and the complainant be admitted in evidence. In some cases a trial Judge may have to take care to limit that history to what is sufficient to enable the jury to set in its proper perspective and to understand the acts alleged to constitute a particular offence. In other words, in some cases the 'full story' of which Mr Justice Stable spoke [in Witham] may have to be limited. This is so because, as Gibbs CJ said in De Jesus (1986) 22 A Crim R 375 at 378: 'Sexual cases . . . are peculiarly likely to arouse prejudice. . .'.

In a case such as the present where there are quite a large number of instances of carnal knowledge alleged against the appellant prior to the first of the acts of alleged indecent dealing the prejudice to an accused person may be so great that the sheer number and weight of those instances may well overbear the jury in its consideration of the evidence in each of the three charges and prevent the jury from considering that evidence impartially. This area of the criminal law does pose difficulty. On the one hand the trial judge has a discretion to exclude evidence which is unfair to an accused person (s 130 Evidence Act 1977 (Qld) (as amended)). As against that, evidence which is relevant but otherwise unfair and prejudicial to an accused is prima facie admissible, eg a confession of guilt. Sometimes a trial judge has to walk a very difficult dividing line in cases such as the present where there are as I have already said 11 instances of carnal knowledge alleged against the appellant before one reaches the first of the acts of alleged indecent dealing. The alleged acts of indecent dealing may seem less serious than the acts of carnal knowledge but the appellant could not be charged with those more serious offences because the complainant's evidence was uncorroborated (s 215 of the Criminal Code (Qld))."

At a trial such as the present when Witham is applied, a deal of evidence is allowed in which shows only propensity in an accused person to commit a particular type of offence which evidence is not true similar fact evidence in that it does not have a strong degree of probative force sufficient to outweigh its

prejudicial effect. (Markby v. The Queen (1978) 140 C.L.R 108; Perry v. The Queen (1982) 150 C.L.R. 580 and Sutton and The Queen

(1984) 152 C.L.R. 528); see also Harriman v. The Queen (1989) 167 CLR 590. Propensity evidence (lacking the strong degree of

probative force sufficient to outweigh its prejudicial effect) is generally inadmissible but Witham allows it in as part of the

"full story", in cases such as in the present.

The community has a real interest in seeing persons who commit criminal offences being brought to trial and, if the evidence is sufficient, convicted after a fair trial. In my view a prosecutor presenting the evidence in a case such as the present should be

astute to ensure when he or she proposes to lead evidence in accordance with the principle of Witham, that only such evidence is led as will be sufficient to enable the jury to have the "full

story" of the alleged relationship between the complainant and the accused. In my view a prosecutor must show discernment and commonsense in the quantity of this type of evidence which he proposes to lead in the particular case.

The prosecutor should not, by pressing to include too large a

quantity of evidence under the Witham principle, run the risk that

the judge, on whom falls the burden of seeing that an accused has a fair trial, may be led erroneously to allow into evidence much more than is needed for the "full story" with the result that an accused does not receive a fair trial and any conviction is later set aside.

The learned President has also discussed problems which can arise when a count based on s.229B(1) of the Criminal Code is joined in one indictment with other counts alleging specific

sexual offences. I agree with his comments and particularly his comments as to s.229B increasing the risk of unfair trial and miscarriage of justice. I should have expected that at committal proceedings the prosecution would have statements from a complainant setting out in detail all relevant evidence - including incidents or conduct of a sexual nature involving the

accused and on which the prosecution proposes to rely at trial. If necessary, particulars can later be ordered to be given by the

prosecution so that an accused is properly informed of the case he

has to meet and in sufficient time to enable him to prepare his

defence to the charges or charge.

General allegations of sexual dealings between a complainant and an accused which lack detail and which are sought to be introduced under Witham have the potential to derail an otherwise

fair trial.