R v Lebhers

[2007] QCA 450

SUPREME COURT OF QUEENSLAND

CITATION:

R v LX [2007] QCA 450

PARTIES:

R
v
LX
(appellant)

FILE NO/S:

CA No 134 of 2007
DC No 175 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

21 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2007

JUDGES:

McMurdo P, Jerrard JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of indecent treatment of a child under 12 who is a lineal descendant and of attempted indecent treatment of a child under 12 who is a lineal descendant – where the mother of the complainant gave evidence – where the appellant contended that the mother's evidence made her an accomplice to the offences – where the judge issued a warning to the mother against self-incrimination – where the appellant contended that the jury should have been warned of the danger of acting on the mother's evidence – where no such warning was requested – whether a warning was required – whether a miscarriage of justice resulted

Criminal Code 1899 (Qld), s 632

Davies v Director of Public Prosecutions [1954] AC 378, cited
Longman v The Queen (1989) 168 CLR 79, distinguished

COUNSEL:

M J Byrne QC for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. PMcMURDO:  The appellant pleaded not guilty on 23 May 2007 in the Ipswich District Court to four counts of attempted indecent treatment of a child under 12 who is a lineal descendant (counts 1, 5, 6 and 7) and three counts of indecent treatment of a child under 12 who is a lineal descendant (counts 2, 3 and 4).  The following day, after the complainant had given evidence, the prosecution entered a nolle prosequi in counts 6 and 7 and the appellant was discharged on those counts.  Later that day, the jury convicted him of two counts of indecent treatment of a child under 12 who is a lineal descendant (counts 2 and 4) and two counts of attempted indecent treatment of a child under 12 who is a lineal descendant (counts 1 and 5).  He was found not guilty of a further count of attempted indecent treatment of a child under 12 who is a lineal descendant (count 3).  He was sentenced to 18 months imprisonment on count 4 and to lesser concurrent sentences on the remaining counts with a parole release date of 25 February 2008.  He now appeals only against his convictions, contending that a miscarriage of justice was occasioned by the failure of the trial judge to warn the jury of the inherent dangers in relation to the evidence of the complainant's mother.

The evidence

1. The determination of that contention first requires an understanding of the relevant evidence.

1. Counts 1, 2 and 3 concerned incidents which occurred on the one occasion charged as a date unknown between April 1990 and April 1992.  The complainant, the appellant's daughter, was then five or six years old.  She gave the following evidence.  Her parents were sunbaking naked in the backyard of the family home, an isolated rural property.  The appellant asked the complainant and her older brother, J, to take off their clothes.  She kept her underwear on because she did not feel comfortable naked.  The appellant asked the mother "to give him oral".  The mother complied.  The appellant then asked the complainant to do the same thing to her brother J.  She refused.  He tried to persuade her to do it but she continued to refuse.  The prosecution relied on this evidence to establish count 1. 

1. The appellant suggested she try it on the appellant.  She shook her head.  He was trying to make her feel more comfortable and said, "How about we send [J] away?"  She said "they" sent J away and "they" said that "they" would keep an eye out.  She felt "sort of, pressured to do it".  She poked out her tongue about a centimetre, kept her lips closed, bent down and fleetingly touched the tip of the appellant's erect penis with her tongue.  The prosecution relied on this to establish count 2.  He said he did not feel anything and asked her to do it again, but she refused.  Her mother then left.  That was the end of her memory of the incidents.

1. In cross-examination she agreed that she could recall the family nude sunbaking on only one occasion.  She denied the suggestion that on that occasion the appellant did nothing improper. Her mother was present at all times during the incidents.  She did not tell anyone what had happened because she was so young and the appellant said, "What happens in this family stays in this family."  Her parents' relationship was not smooth: they argued a lot, drank a lot and the appellant beat up her mother.  She denied the suggestion that the offences did not occur.  She agreed that the only time she had physical contact with the appellant was the count 2 incident. 

1. The complainant's mother gave the following evidence.  She described an incident when the appellant suggested that the complainant, her son J, the appellant and she all strip off and sunbake in the back yard near the mulberry tree.  The complainant was about six years old.  They lay down on a piece of tarpaulin.  The judge then enquired of counsel whether she needed to warn the mother.  Both counsel responded, "Probably."  The judge then told the mother:

"… you don't have to answer any questions that might incriminate you in a criminal offence.  What you are about to give evidence of may incriminate you in the commission of a criminal offence and on a question-by-question basis you have a right to refuse to answer the questions on that ground.  Because it is nearly one o'clock I am happy to stand the matter down so that you can get some legal advice if you want it; do you want me to do that? -- No, I'll be right.
OK.  So do you understand that warning? -- Yes."

1. The mother continued to answer all questions asked.  She said that the appellant placed the complainant's hand on his penis.  The prosecution relied on this evidence to establish count 3.  The mother told the appellant that this was wrong.  She got up and told the children to go inside and get dressed.  The appellant stayed outside.  She went inside to attend to a younger child who had woken up.  Later that afternoon she told the appellant that he had acted wrongly and should not do things like that.  He said he was sorry.  Significantly, the mother did not give evidence directly supporting the complainant's account of counts 1 and 2 whereas the complainant did not give evidence of count 3 occurring.  The mother denied the suggestion put in cross-examination that the incident relied on to prove count 3 did not occur on the only occasion when the four of them sunbaked naked in the back yard.

1. Like count 3, count 4 also turned solely on the evidence of the mother; the complainant did not give evidence of such an incident occurring.  It was charged as taking place on an unknown date between April 1991 and April 1992.  One day she was hand washing clothes in the laundry.  She heard a young child laughing.  She saw the laughing complainant at the window of the matrimonial bedroom.  The mother was concerned that the girl might fall out the open window.  The mother asked, "Where's Dad?"  The complainant pointed down and was laughing a lot.  The mother went upstairs to see what was happening.  Out of the corner of her eye she saw the complainant sitting on the appellant's face on the bed with a knee each side of his head.  The mother was angry and told the complainant to get out.  As the complainant jumped off the bed the mother gave her a slight tap on the bottom and noticed she was not wearing underpants.  The complainant went to her drawer and put on a pair of underpants.  The complainant was then about five years old.  The complainant gave no evidence about this incident occurring.  She denied the suggestion put in cross-examination that the offence did not occur.  It should again be noted that the complainant's evidence in cross-examination was that she only ever physically touched the appellant once, when count 2 occurred.

1. Count 5 turned solely on the complainant's evidence.  It was alleged to have occurred on an unknown date between April 1991 and April 1993.  The complainant remembered an occasion when her mother was out.  The appellant had a stubby in one hand.  He was sitting in the sunroom at the top of the stairs.  He asked her to do him a favour.  He pulled down his track pants and showed her his penis.  She told him he was disgusting, turned away and took off down the stairs.  She denied the suggestion put in cross-examination that the offence did not occur.   

1. The complainant's boyfriend gave evidence that the complainant told him, in terms broadly consistent with her evidence on counts 1 and 2, of an incident which occurred in the back yard with her father and brother. 

1. A social worker-counsellor gave evidence that in 2000 or 2001 when the complainant was a high school student the complainant told her about the appellant's sexual conduct towards her.  This account was broadly consistent with the complainant's evidence on counts 1, 2, 5, 6 and 7.

1. A police officer gave evidence that she contacted the complainant's brother J but he would not provide a statement.

1. The appellant did not give or call evidence.

The appellant's contention

1. Mr M J Byrne QC for the appellant contends that on the complainant's evidence the mother was his accomplice in respect of counts 1 and 2.  The mother's evidence was also critical to establish count 4.  In these circumstances, the judge should have warned the jury in the following terms:

"You should approach your assessment of the evidence of the mother with caution. A person who has been involved in an offence may have reasons of self-interest to lie or to falsely implicate another in the commission of the offence.  The evidence of such a person is of its nature potentially unreliable, and it is therefore necessary for you to scrutinise the evidence carefully before acting on it.  The mother, having been involved in the improper sexual dealings with the complainant, is likely to be a person of bad character.  For this reason, her evidence may be unreliable and untrustworthy.  Moreover the mother may have sought to justify [the appellant's] conduct, or at least to minimise her involvement, by shifting the blame, wholly or partly, to him.

Whilst it is possible to identify some reasons she may have for giving false evidence, there may be other reasons which are known only to her.

The mother's evidence, if not truthful, has an inherent danger.  If it is false in implicating the [appellant], it will nevertheless have a seeming plausibility about it, because she will have familiarity with at least some of the details of the alleged crimes."

1. Mr Byrne emphasises the common law requirements for an accomplice warning as discussed in Davies v Director of Public Prosecutions[1] and contends that s 632(3) Criminal Code 1899 (Qld) allowed and required such a warning here.

   [1][1954] AC 378, 399.

1. Mr Byrne further contends that the failure to warn the jury of the danger of acting on the mother's evidence was exacerbated by two other judicial directions.  The first was the judge's explanation why the mother was warned during her evidence.  The second was when the judge, after warning the jury about the effect of delay in the case, consistent with Longman v The Queen,[2] then tempered this caution by observing that the complainant's evidence was supported in some respects by the mother's evidence.

   [2](1989) 168 CLR 79, 86.

1. Mr Byrne submits that the absence of a warning about the danger of accepting the mother's evidence as an accomplice, especially in the light of these directions, may have given an undesirable or even dangerous boost to her credit such that a miscarriage of justice has occurred.

The relevant directions to the jury

1. The pertinent judge's directions to the jury included the following:

"You should dismiss all feelings of sympathy or prejudice.  Whether it be sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision and you must approach your duty dispassionately deciding the facts on the whole of the evidence.

Now, in this case, obviously, there is some evidence of violence in the home and there is some evidence of the family sunbaking naked, which you may or may not approve of. You're not here to decide whether the home was run in the sort of manner that a home should be run; right? You're just here to decide whether the Crown has proved the charges against the [appellant]; all right?

So, if, for example, you think that violence in the home is a terrible thing. and no doubt violence in the home is a bad thing, that's really not a matter for you to decide for this case. All right? So you've just got to consider the charges.  Whether you approve or disapprove of other aspects of the lifestyle you really need to put that out of your mind and just concentrate on whether the Crown has proved the charges before you."

1. After setting out the elements of the offences to be proved beyond reasonable doubt, her Honour referred to the evidence relevant to each count.  In respect of count 3, her Honour stated:

"Then count 3, and of course, as I've already said, remember the mother says - doesn't say anything about that happening.  Count 3 comes from the evidence of the mother, and she says - remember she gave evidence; she was warned in relation to not having to give evidence about this particular incident. Now, you might've wondered why that happened, but if she was involved in inviting the child to lick or touch the father's penis, then she leaves herself open to prosecution for this very type of offence.

So, under our law, if a witness is liable to prosecution for an offence they don't have to give evidence about it and they're entitled to claim, what we call, privilege against self-incrimination. So they can refuse to answer questions on the basis that it might incriminate them but she, of course, waived that privilege and said that she would give evidence in the case."

1. Later the judge instructed the jury not to speculate about the fact that the brother, J, was not called to give evidence.  Her Honour then gave the following directions about delay:

"The other thing that you need to think about is the fact that there's been a long delay in this case in reporting the incident, or the incidents that the complainant says happened.  That delay has a consequence, ladies and gentlemen, which is of importance, and particularly in relation to counts 4 and 5, and that is that her evidence can't be adequately tested or met after so many years, the accused having lost by reason of that delay means of testing and meeting her allegations that would otherwise have been available because now there's no accuracy as to dates. For example, if she had complained a week after something had happened she could have said on the 14th of February 2006 this happened, and then the defence could try and work out if the accused was somewhere else and that sort of thing, all right.

So by the delay the [appellant] has been denied the chance to assemble soon after the incident is alleged to have occurred evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been known to the [appellant] soon after the alleged event it may have been possible then to explore the pertinent circumstances and detail, and perhaps to gather and to look to call at a trial evidence throwing doubt on the complainant's story, or confirming the [appellant's] denial. So there may have been significant opportunities lost by that delay.

The fairness of the trial therefore has necessarily been impaired by that long delay. So I warn you that it would be dangerous to convict on the complainant's testimony alone unless after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning you are satisfied beyond reasonable doubt of its truth and accuracy.

" Now, in this case of course the Crown says you are not relying on the complainant's evidence alone because there is the very significant evidence of the mother which supports the complainant's evidence. In that she gives evidence of sexual contact between the [appellant]  and the complainant. So the Crown says, well, it's not just her alone, but nonetheless that delay is a matter that you do have to take into consideration.

Now, you will note I said particularly in counts 4 and 5, that is because in relation to counts 1, 2, and 3 the Crown says that they are actually calling a person who was present at that offence, and that is the mother, and the complainant did actually name people who were present at the offence who were possible witnesses; in fact one of them was called and one of them refused to give a statement. Although it has to be said there is still a significant delay into counts 1, 2, and 3 of course."  (my emphasis)

1. Later the judge gave these directions:

"… In addition to the evidence of the complainant concerning the offences you have the evidence of the mother concerning two other offences, and you have also heard evidence of the accused asking her to get involved in sexual activity, and some evidence of some violent acts by the accused.

She was - sorry - those incidents, the ones that were actually counts 6 and 7, are no longer charges for you to consider, but you can use that evidence for one purpose only, and you can also use the evidence of the mother in relation to when you are considering the complainant's evidence in this way – if you accept the evidence it shows, the Prosecution says, the true nature of the relationship between the [appellant] and the complainant, thus placing the events that the complainant talks about in the proper context.

So you can't use them as actually proving the charges, but if you had heard about these acts in isolation you might think it's very strange, but when you hear about the sort of relationship that the mother says she observed, and the other invitations to perform sexual acts the Crown says that shows what the relationship was like, and the fact that there was domestic violence in the house also shows the atmosphere in the house, the Crown says, and the way the family operated.

You should have regard to the evidence of those incidents not now subject of the charges, only if you find them reliable of course, as is the case with any of the evidence in the trial.  If you accept it you can't use it to conclude that the [appellant] is someone who has a tendency to commit the type of offence with which he is charged. It would be wrong for you to reason that you are satisfied that he did the acts in counts – the olds counts 6 and 7, for example, therefore it is likely he has committed counts 1, 2, 3, 4, or 5.

Further, you shouldn’t reason that the accused had done things equivalent to the offences charged on the other occasions, and on that basis could be convicted of the offences charged even though the particular offences charged are not proved beyond reasonable doubt. Remember the evidence of the incidents and not the subject of the charges comes before you only for the limit purpose mentioned, and before you can find the [appellant] guilty of any charge you must be satisfied beyond reasonable doubt that the charge is proved by evidence relating to that charge. 

If you don't accept the complainant's evidence relating to incidents not the subject of charges, take that into account when considering her evidence relating to the alleged events, the subject of the charges before you."  (my emphasis)

1. The judge then began to summarise the prosecution and defence cases.  This included:

"It is really just a matter of deciding if her evidence is accurate and truthful, and whether the mother's evidence is also accurate and truthful. You would be satisfied that her evidence - that is the complainant's evidence of the events under the Mulberry tree are right and accurate, and that the mother's evidence in relation to that incident is perhaps clouded or played down by the fact that she was involved in these incidents that the complainant says occurred.

So in effect, the Crown is saying you would be satisfied that all of those - all three of those incidents occurred, but that the mother is simply not talking about the part that she was involved in. Now, it is a matter for you. The Defence, on the other side, say of course it is a very significant inconsistency. The mother says really that she didn't see anything that the daughter did or says happened, and that something happened that the daughter says can't remember happening."  (my emphasis)
[Errors as in the original transcript]

Conclusion

1. It is relevant and noteworthy that no direction of the type now contended for by the appellant was sought at trial.  As there has been no ruling on a question of law, the appeal will only be successful if the failure to give the warning now sought has resulted in a miscarriage of justice. 

1. The complainant's evidence that the mother was present when counts 1 and 2 occurred did not make her an accomplice on those or other counts.  On the mother's evidence, she was present but not involved in and disapproving of the unlawful conduct said to constitute counts 3 and 4.  The complainant's evidence on counts 1 and 2 was equivocal as to the mother's role in those counts.  The complainant's use of the pronoun "they"[3] was not explored either in evidence-in-chief or in cross-examination.  The complainant did not directly state her mother was involved in the commission of counts 1 and 2 although she clearly stated that the mother was present.  I note, however, that count 1 was left for the jury's consideration on the basis that the overt act relied upon as demonstrating an attempt to unlawfully procure the complainant to commit an indecent act was the mother sucking on the appellant's penis and him then telling the complainant to do the same to her brother.  For present purposes, I am content to proceed on the basis that the mother was in that class of witnesses where an accomplice direction of the type urged on the Court by Mr Byrne is generally considered desirable at common law.

   [3]See these reasons [4].

1. The Criminal Law of Queensland is contained in the Criminal Code and other statutes. The common law as to warnings required about the evidence of an accomplice-type witness has been modified by s 632 Criminal Code which provides:

"(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses."

1. The law in Queensland is that a warning like that now sought by Mr Byrne is required only if it is in the interests of justice.  It must be given in a way that does not warn or suggest that the law regards any class of persons as unreliable. 

1. Mr Byrnes' initially attractive contentions have been formed with the advantage of hindsight.  The appellant was acquitted on count 3 (based on the mother's evidence alone) but convicted on count 4 (also based on the mother's evidence alone).  He was additionally convicted on the counts based on the complainant's allegations, counts 1, 2 and 5.  He received the heaviest sentence on count 4.  With the benefit of that hindsight, it is now tempting to speculate, as Mr Byrne suggests, whether, had an accomplice-type warning been given, the jury may not have accepted the unsupported evidence of the mother on count 4. 

1. It must be remembered that the appellant's case at trial was not that he was guilty of the counts on which the complainant gave direct evidence and not guilty only of the counts on which the mother alone gave evidence.  It was that he was not guilty on all counts. 

1. His defence at trial was conducted on the basis that, because of the significant conflict between the complainant's evidence of counts 1 and 2 on the one hand and the mother's account of counts 3 and 4 on the other, the jury would have a real doubt about the reliability of the evidence of both and would acquit on all counts.[4] 

   [4]See the judge's summation of the defence case set out and emphasised in [22].

1. This approach was a sound enough way in the circumstances to defend all charges.  That defence would have been undermined had the judge given an accomplice-type warning.  The warning would have implied the culpability of the appellant in at least counts 1, 2 and 3.  Such a direction would itself have risked causing a miscarriage of justice. 

1. Mr Byrnes' answer is that, had the warning been given, the jury may have acquitted on count 4 as well as count 3 and, whilst not accepting the mother's evidence, still have used it to raise a doubt about the complainant's reliability on counts 1, 2 and 5.  I suspect the jury would have found that defence less attractive than the one adopted at trial in light of the evidence of the relationship between the mother and the appellant.  But in any case, that was not the way the trial was conducted.

1. The judge's explanation to the jury about the warning to the mother against self-incrimination[5] was appropriate in the context of setting out the evidence on count 3.  It has not caused or contributed to a miscarriage of justice.

   [5]See these reasons [19].

1. The judge's warning about the effect of the complainant's delay in bringing the charges was not undermined so that a miscarriage of justice occurred because of the qualification added about the mother's evidence.[6]  The mother's evidence was capable of supporting the complainant's evidence in a general way.  The difficulties resulting from the delayed complaint were less (but, as the judge said, still significant) in respect of counts 1, 2 and 3 as it was common ground from the cross-examination of the mother and the complainant that there was only ever one occasion when the appellant, the mother, the complainant and J all sunbaked naked in the back yard.  It was not suggested that anyone other than those four was present.  The mother and the complainant gave evidence of the incident and J had refused to give police a statement.

   [6]See these reasons [20] as italicised.

1. The interests of justice did not require the judge to give the warning now sought by the appellant: cf Longman v The Queen.[7]  The failure to give the warning has not caused a miscarriage of justice. 

   [7]Above, 86.

1. The appeal against conviction should be dismissed.

1. JERRARD JA:  I respectfully agree with the reasons, and the order proposed, by the President.

1. DAUBNEY J:  I also respectfully agree with the reasons for judgment of the President and with the order she proposes.