R v Luck
[2000] QCA 74
•17 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Luck [2000] QCA 74 PARTIES: R
v
LUCK, Lawrence Robin
(appellant)FILE NO/S: CA No 350 of 1999
DC No 247 of 1998DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: District Court at Maryborough
DELIVERED ON: 17 March 2000 DELIVERED AT: Brisbane HEARING DATE: 1 March 2000 JUDGES: McPherson and Pincus JJA, Williams J
Separate reasons for judgment of each member of the Court;
McPherson JA and Williams J concurring as to the order made, Pincus JA dissenting.ORDER: Appeal against conviction dismissed CATCHWORDS: CRIMINAL LAW- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION- APPEAL AND NEW TRIAL - appeal against conviction- where appellant convicted of rape - whether fact that complainant’s account was incomplete evidenced complaint was false - onus of proof
CRIMINAL LAW- PARTICULAR OFFENCES -OFFENCES AGAINST THE PERSON - rape
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING-UP - whether summing up contained misdirection as to onus of proof- whether summing up contained adequate direction in relation to alleged prior inconsistent statements made by complainant- pedantic scrutiny of summing up inappropriate
CRIMINAL LAW EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - prior inconsistent statements - for jury to determine whether inconsistency exists and to give such weight to consequence of such inconsistency as it sees fit
Evidence Act 1977
Demirok (1976) 50 ALJT 550, approved
COUNSEL: Mr D A Lynch for the appellant
Mr T Winn for the respondentSOLICITORS: Morton and Morton for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: I agree with the reasons of Williams J. Specifically I would add only that the learned trial judge correctly left to the jury the question whether the complainant's prior statement was inconsistent with her testimony at the trial. The settled distinction is that interpretation of spoken words is a matter of fact for the jury, whereas, interpretation of words in a written instrument is a matter of law for the judge to determine. The complainant's earlier statement consisted of spoken words, even though they may have been recorded or reproduced in the official transcript of the committal proceedings. It was therefore for the jury to determine whether there was any inconsistency between the two statements, and the judge left it to them.
PINCUS JA: I have had the advantage of reading the reasons of Williams J in which the circumstances giving rise to this appeal are set out. I agree with the reasons of Williams J with respect to the appellant's argument that there was a misdirection as to onus of proof. The other ground argued by Mr Lynch was that the judge wrongly directed the jury, in terms which suggested that perhaps prior inconsistent statements put to the complainant had not been established. Mr Lynch made two points about that. One related to evidence given by the complainant as to what it was that penetrated her vagina; that argument has in my opinion no real substance.
A matter which has concerned me, however, is the contention advanced about the time of disclosure of the complainant's allegations to her mother. Early in her cross-examination she gave evidence that, before the complainant spoke to the police concerning her allegations against the appellant, she and her mother had gone to a counsellor. The complainant also gave evidence, at that stage, to the effect that her mother knew of the allegations in question before they went to the counsellor. In later cross-examination it was put to the complainant that she made no "complaint of anything of a sexual nature to anyone until after you received this counselling". She responded that she had spoken to her sister before she went to counselling. She was then asked about evidence which was said by counsel to have been given at the committal hearing. It was put to the complainant, in effect, that she had then given evidence that she had not told her mother about "these things" when she went to see the counsellor and that she had said –
" ... they found out approximately one and a half to two weeks after I started seeing Carol".
In the context "they" is a reference to the complainant's mother and father; "Carol" was the counsellor. Then it was put to the complainant that she was asked:
"So, it's as a result of having these conversations or going to Carol that these allegations came to light?"
and that she answered "Yes". Further cross-examination put committal evidence which was capable of meaning that the reasons for going to see the counsellor were matters other than the allegations against the appellant.
Lastly, there was cross-examination in the course of which the same question from the committal appears to have been put twice. On the first occasion it appears in the record as:
"You didn't tell anyone about any of these things until last year, was it?"
On the second occasion the word "year" is omitted. It was put that the answer given to the question was "Yes". In my view it is likely that the word "year" where the question secondly appears was spoken but not heard. The response to the question put was "Yes" and the complainant appeared to agree that the question and answer were as put. Then the cross-examiner went on to put the following question and answer, supposedly from the committal:
"And that's after you'd been talking to a counsellor? And you responded, 'yes' ".
If one accepts that the evidence at the committal accorded with what was put to the witness by counsel, then the line of cross-examination was at least capable of being fairly damaging to the Crown case. The jury might have concluded that the complainant had, perhaps deliberately, equivocated about the subject of the order of events: which came first, the time when she saw the counsellor, or the time when she first made her mother aware of the allegations against the appellant? In addition, the jury might have been of the opinion that there was an odd discrepancy in the evidence as to the reason for seeing the counsellor: on one version, it was all about the allegations against the appellant and, on another, it related to quite different subjects.
In answering what was put to her from, counsel said, the evidence at committal, the complainant did not, in general, say specifically whether or not she agreed that the evidence she gave at committal accorded with what was being put to her. It would have been surprising if she had a good enough recollection of the evidence then given to be able confidently to agree or disagree. The judge's directions to the jury about this aspect of the case, set out in the reasons of Williams J, must have given the impression that there was good reason to doubt whether counsel's quotations from what he said was evidence at committal were true or accurate. The judge's directions invited the jury to do more than compare the committal evidence with the trial evidence; they clearly suggested that there was a real doubt about what the former was.
As a practical matter, there is I think no reason to doubt that what counsel put as having been said at committal was substantially accurate. One may deduce this from the fact that, at the beginning of his cross-examination on the committal evidence, one finds in the transcript the following:
"[MR BROWN:] But you see – at the bottom of page 17, Your Honour.
HIS HONOUR: Yes.
MR BROWN: This was asked at line 55. 'Now, whereabouts were...' ".
One should infer from this that the judge had, as one would have expected, a copy of the committal transcript and was able to check what was being put. I assume the prosecution was also able to do so. Although the content of the prior allegedly inconsistent statements put to the complainant was not (in general) proved, counsel was no doubt proceeding on the assumption that if anything he put was inaccurate or incomplete, his attention would be drawn to the discrepancy. Had he given any consideration to the problem, he might well have assumed that formal proof was being waived.
In these circumstances, I am not satisfied that the appellant has been treated fairly, in the judge's discussion of the allegedly inconsistent statements. It is likely that if defence counsel had thought to ask the Crown for an admission that the statements he put as having been made previously had in fact been made, that would have been forthcoming. But he followed the loose practice which has developed, of treating formal proof of prior inconsistent statements, when derived from court transcripts, as needing no attention. Perhaps one advantage of the practice, from the defence point of view, is to preserve the right of last address and it might be said that there is a price to be paid for that.
But although the system is adversary, it is necessary to ensure that the accused, who presumably knows nothing of these refinements of the law, gets a fair trial. Even if all the rules for trial are observed, the resultant trial may still be unfair, bringing about a miscarriage of justice: Demirok (1976) 50 ALJR 550. Here it appears to me counsel proceeded on the, fairly natural, assumption that there was no dispute about what was in the transcript of the committal hearing. One would have expected that if that were not so, he might have been warned about the point, for example, by the prosecutor announcing that he did not waive proper proof. I do not, in saying this, intend to suggest any improper conduct on the part of either counsel.
The question remains whether what I have concluded was an unfair aspect of the judge's directions could have made a difference to the verdict. The Crown case was uncontradicted and, leaving aside the inconsistencies referred to above, the complainant's evidence reads well. But this cannot justify the Court's holding that the judge's discouragement of consideration of the complainant's inconsistent statements could not have made a difference to the verdict. I would allow the appeal and order a new trial.
WILLIAMS J: The appellant appeals against his conviction for rape recorded after a trial in the Maryborough District Court. The charge was that on a date between 1 January and 14 January 1993 at Fraser Island he raped a girl who was then aged 12. No complaint was made until 1997 and the trial took place in September 1999. The prosecution case depended entirely on the evidence of the complainant. The appellant made no admissions to police, and did not give evidence at the trial.
The appellant relied on two grounds in support of his appeal against conviction. Firstly, it was said the summing up contained a misdirection as to the onus of proof, and secondly it was said that the learned trial judge erred in his summing up in dealing with the issue of prior inconsistent statements by the complainant.
In support of the first ground counsel relied entirely on one sentence taken from the summing up; that was to the following effect:
“Now, the question for you to determine, was the incompleteness of the complainant’s account, caused by her making a false complaint, or was it because of her reaction to something which truly happened.”
This court has consistently criticised attacks on a summing up by extracting a particular passage and analysing it minutely in isolation from the context in which it appeared. Here the context in which the quoted sentence occurred is of vital importance.
In the preceding paragraph of the summing up the learned trial judge referred to the address of defence counsel and observed: “He said, in effect, the complainant’s account was like a book containing paragraph headings and nothing in between. But, you heard from the complainant. She has described the circumstances as she recalled them and she described how she was affected by the incident from the time it started.”
Then he went on:
“If you accept her, that’s a matter which you can take into account, explaining the absence of detail. Now, the question for you to determine, was the incompleteness of the complainant’s account, caused by her making a false complaint, or was it because of her reaction to something which truly happened. I’ll deal with her reaction shortly, but you will recall that she used words like, “shocked” and “stunned”.”
A little later in the summing up his Honour referred to the presumption of innocence and to the fact that the onus of proof to establish guilt was on the Crown. Much later on after dealing with the evidence the following passage appears:
“Now, on behalf of the accused it is alleged that the complainant was not truthful. It is argued that she totally fabricated her evidence against the accused. Now it is not for the accused to explain why she might make such a false allegation against him. He does not have the onus of proof.”
The final passage relevant for present purposes came a little later; the learned trial judge said:
“Mr Brown [defence counsel] does not have to convince you that his arguments are good and sound. It is sufficient if you find an argument reasonably possible so as to create a reasonable doubt about the guilt of the accused. If that happens, then you must find him not guilty because you have to reject the complainant’s evidence. Now, on the other hand, if the Crown has convinced you that her account is an honest and reliable one, you may find the accused guilty, and of course, if you are unable to decide one way or the other, you must again, find him not guilty.”
It seems clear that the sentence relied on by the appellant in support of his appeal related to a particular issue which had arisen during the trial, and was not directly related to the ultimate issue whether or not the jury was satisfied beyond reasonable doubt of the appellant’s guilt. Given the defence submission that there was “incompleteness” in the complainant’s evidence (a proposition which the jury may or may not have accepted) it was appropriate for the learned trial judge in his summing up to deal with that. Such incompleteness could be due to the fact that her evidence was fabricated (the defence case) or be a result of the trauma associated with the relevant events (the prosecution case); there may even be other explanations. When the passage in question is read in context the learned trial judge was doing no more than drawing such matters to the attention of the members of the jury and indicating that it was for them to determine which explanation, if any, was accepted. But it is clear that such was no more than a step in the reasoning process. The summing up in no way suggested that the answer would provide the jury’s ultimate verdict.
As was pointed out during argument if the learned trial judge had said “a question for you to determine in that context” rather than “the question for you to determine”, there would be no basis at all for the argument advanced by the appellant. In my view it is inappropriate to subject a summing up to such pedantic scrutiny.
When the summing up is read as a whole it is clear that the learned trial judge told the jury that they could only convict if they accepted the essential parts of the complainant’s evidence beyond reasonable doubt. They were clearly told that if they were left with a reasonable doubt as to any part of her evidence which was essential to the prosecution case then they should acquit. They were clearly told that if they were in a state of mind where they were unable to decide one way or the other then the appropriate verdict was not guilty. There was no misdirection as to the onus of proof.
In the circumstances there is no substance in the first ground of appeal.
In order to deal with the second ground of appeal it is necessary to quote the relevant passage from the summing up; it is in the following terms:
“Now, there has been argument addressed to you based upon a previous inconsistent statement by the complainant. Now, when the witness is proven to have given evidence on an earlier occasion which is inconsistent with what is given on the occasion in question, there are three options open to the jury.
You may accept what she said here, because it is said on oath in front of you. You may prefer the evidence given on the earlier occasion, because it was made closer to the events to which it relates. Or you may simply decide that because there are two conflicting versions you cannot accept either. That is a matter for you to determine.
But of course you must first be satisfied that there was a previous inconsistent statement. You will recall counsel referring to the committal depositions in the course of the evidence and he reminded you of that in his address.
The complainant was asked about statements she made, mainly concerning her attending the counsellor, and it was – she was asked “Do you dispute what was said on that occasion?” And she said she did not dispute it, did not dispute what she was alleged to have said. But you might think that she did not agree with it, either.
In fact she said to you, in the course of her evidence, that she could not remember what had been said at the committal. Now, if you find that there has been no acceptance of what was said at the committal, then there is no evidence of a previous inconsistent statement. But if you do find there is a previous inconsistent statement, then you must take the option which you see as proper.”
It was apparently the contention of defence counsel in his address to the jury that the complainant had made inconsistent statements on two relevant issues:
(i) whether she had made a complaint to her mother about the incident prior to first meeting the counsellor;
(ii) whether it could have been fingers, rather than a penis, which entered her vagina.
Under cross-examination before the jury the complainant said that she had been to see the counsellor before she spoke to police about the matter. She said that her mother took her along to the counsellor. Then followed the following questions and answers:
“QAnd at the time she took you along, she wasn’t aware of these allegations that you’ve made, was she? –
A Yes, she – to the police?
QNo, to the counsellor. You didn’t tell her before you went off to the counsellor? –
AShe did know, before we went to the counsellor; that what was the whole point of me going to the counsellor.
QYou went off to the counsellor, and you say that the whole point of going to the counsellor was because of these allegations, and that your mother knew. That’s what your evidence is here today? –
A Yes.”
Later, again during cross-examination, the following passage appears:
“QAnd your mother took you there specifically because of these allegations. That’s what you say? –
A Yes.
Q And she knew about them when she took you there? –
A Yes.QAnd it’s the case, isn’t it, that – or is it the case that you hadn’t made a complaint or didn’t make a complaint of anything of a sexual nature to anyone until after you received this counselling? –
A I had spoken to my sister before I’d gone to counselling.”
Later during cross examination counsel for the appellant at trial put some passages from the committal depositions to the complainant. He did so after again getting an answer to the effect that her mother knew of the allegations before the complainant first attended counselling. The submission is that cross-examination at this point established the making of prior inconsistent statements. The following extract from the cross-examination establishes the extent to which any relevant inconsistent statement was established. It should be noted that the depositions were not actually shown to the witness during this cross-examination:
“QThis was asked at line 55. “Now, whereabouts were you living when you first went and spoke” – [to Carol Mayon] … “Whereabouts were you living when you first went and saw her?” And you said, “In Gympie.” And this question was asked: “And who took you to go and see her?” And you said, “My mother.” And this is over the page, and this was put to you. “Now, you’ve never told – you haven’t told your mother about these things I take it?” And your response I suggest was, “Not at that stage, no” And then this was asked: “And you hadn’t told your father?” And your response was, “No, not at that stage”? –
A No, my father hadn’t been told because he was away.
QWell I’m concentrating on your mother. “Or anyone else for that matter. Hadn’t told anyone else for that matter?” And you said, “No, but they found out approximately 1½ to 2 weeks after I started seeing Carol.” That’s what you said at the committal, isn’t it? –
AI don’t recall saying that, no.
Q Well, do you dispute that’s what you said? –
A No.QAnd you see it went on, seeing Carol, all right. “So, it’s as a result of having these conversations or going to Carol that these allegations came to light”? –
A No, because my sister …
QIf I can just finish. And your response was, “Yes”. That’s what you said in November last year, isn’t it? -
A I don’t recall saying that, no.
Q And you don’t dispute that you said that? –
A No.QAnd this was put at line 12, “Now, your mum took you off to see Carol. Did she say why at the time? I mean, she didn’t know that anything was – anything of this nature had been alleged, that. Was there some other reasons why?” And your response I’d suggest was, “Cause I’ve had a lot of problem in that I was upset and depressed and there had been a lot of things happening in the previous couple of years and that it had all built up.” That is talking about going off to see Carol. You’ve given that response I suggest? –
AI don’t dispute that but it was all accumulated, it was all part of it.
Q Well, you don’t dispute you gave that answer? –
A No.
…QAnd, you go on, it was where a couple of members of staff made, you said, false allegations, which were, you said, proven to be not guilty. But you see those responses – you clearly understood at that time, didn’t you, that you were being asked about the time you went to see Carol, I suggest? –
A I don’t recall the committal hearing what was said, exactly.
…QThis – at page 41, was suggested to you, “You didn’t tell anyone about any of these things until last year, was it?”, that’s referring to 1997 and you said, “Yes”, that is at line 35, and that’s after you had been talking to a counsellor and you said, “Yes”? –
A I first told my sister in January of 1997, so that was correct.
Q Well, in when, sorry?
A January 1997.
Q Well, when did you start seeing this counsellor? –
A February.QWell, that’s after you told your sister on your evidence here? –
A I said that I had told my sister.
QBut, you see, this was put to you, I’ll go through it again, “You didn’t tell anyone about any of these things until last, was it? And you responded, “Yes”, I suggest? –
A That’s correct.”
I have difficulty in concluding from those passages that there was any inconsistency in the complainant’s evidence as to when she told her mother about the incident. That seems to be the point defence counsel was putting in issue, and the point which is relied on in this court. The passages quoted are open to the interpretation that the complainant consistently said that she did not directly tell her mother anything before she saw the counsellor, but that she had made a statement about it to her sister and that in consequence her mother knew of the incident at the time she first saw the counsellor. Unfortunately either the last question in the passages quoted from the cross-examination was badly (or incompletely) phrased or there was an error in the recording of it. In order for the answer to be meaningful, and perhaps suggestive of an inconsistent statement, one would need to know the time referred to – was it “last January”, “last year”, or what?
It can be said with certainty that the requirements of s 18 of the Evidence Act 1977 were not strictly complied with. It is doubtful that a response that the witness does not dispute that something was put to her on a previous occasion is the same as establishing that the witness “does not distinctly admit that [she] has made such statement”. Further, merely putting to the witness passages from the committal depositions as was done here does not amount to proof that the witness did in fact make those statements. A formal admission by the prosecution may afford such proof, but that was not the case here.
The observation can also be made that in putting the material from the depositions to the complainant counsel for the appellant formulated his questions in a very confusing way. The complainant could be forgiven for not knowing precisely what she was being asked to accept or reject. If the making of a prior inconsistent statement is not clearly established the accused gains no forensic advantage from the line of questioning.
At the end of the day the position appears to be that there was an issue of fact as to whether or not the complainant had made inconsistent statements as to when she told her mother of the incident in question, and whether or not she had made some statement relating to it to another person prior to seeing her counsellor. Those issues of fact were for the jury to resolve. In the circumstances the learned trial judge had no option but to leave it to the jury to determine whether or not there was any prior inconsistent statement, and if so what were the consequences. That is the effect of the passage from the summing up quoted above.
The evidence relevant to the second alleged inconsistency can be shortly stated. In her evidence in chief the complainant said that at one time she felt fingers in her vagina but that later when she “could feel his weight on me” she felt his penis enter her vagina. She maintained under cross examination that the appellant penetrated her with his penis. Then came the following passage in cross-examination:
“QYou see, at the committal hearing, you agreed I’d suggest that what could have been inside you – and I’ll come to the specifics – was two fingers? –
A It felt a lot bigger than two fingers.
QWell, perhaps if I can take you to this. Page 39, Your Honour, and line 49. This was said to you: “You can’t give any details about how he was on top of you. You just say a penis went inside you, that’s right, isn’t it?” And your response was, “I don’t remember anything else, no. It’s not something I want to remember.” Then this was said: “Alright, well, so if we accept what your saying, its quite possible he just shoved a finger in you. That’s right, isn’t it?” And you said “Not by the size, no”. Then this was put to you: “Two fingers or an object of some other nature. That’s right, isn’t it?” And you said, “It’s possible”?
A I didn’t see it so it is possible.
QAnd for completeness, over to page – and by the size of it, “You’ve made no mention of any size when you first raised these allegations, did you?” And you said “No.” So you can’t sit here under oath today and tell the Court that you are convinced that a penis entered you?
A I am convinced, but I didn’t see it.”
In the second last answer before the jury the complainant says she didn’t see the object so it was possible it was fingers; but she maintained that she was convinced it was a penis. That appears to me to be entirely consistent with her answer at committal that it was “possible” that it was “two fingers or an object of some other nature”.
Again, there is no clear proven inconsistency. If there was some inconsistency to be gleaned from those questions and answers then it was for the jury to do so, and it was for the jury to give such weight to the consequence of such inconsistency as it saw fit. Again, the passage quoted from the summing up gave an adequate direction to the jury in that regard.
There is no substance in the second ground of appeal.
It follows that the appeal against conviction should be dismissed.
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