R v M

[2003] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v M [2003] QCA 13

PARTIES:

R
v
M
(appellant)

FILE NO/S:

CA No 315 of 2002
DC No 390 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2003

JUDGES:

Davies and McPherson JJA and Mullins J
Separate reasons for judgement of each member of the Court; each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where appellant convicted after trial of one count of maintaining a sexual relationship, four counts of rape and one count of attempted rape – where trial judge declared witnesses to be special witnesses for the purpose of s 21A of the Evidence Act 1977 (Qld) – where no basis to challenge the trial judge’s discretion to treat each of these witnesses as a special witness

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION  TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where appellant convicted after trial of one count of maintaining a sexual relationship, four counts of rape and one count of attempted rape – where trial judge allowed DNA evidence to be adduced that was strongly probative and clearly relevant to whether the relationship between the appellant and complainant included sexual intercourse – where no error in the trial judge allowing DNA evidence to be adduced

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – PARTICULARS – where appellant argued that the particulars were prejudicial to him in failing to mention the involvement of another party and that defect should have been brought to the attention of the jury by the trial judge – where evidence of the other party’s involvement was before the jury – where it is not relevant to the purpose to which the particulars were provided that the involvement of the other party be expressly mentioned in the particulars – where the particulars provided detail to enable the specific occasion of each offence to be identified

Evidence Act 1977 (Qld), s 21A

COUNSEL:

The appellant appeared on his own behalf
R G Martin for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA:  I will ask Justice Mullins to deliver her reasons first.

MULLINS J:  The appellant was convicted after trial, of one count of maintaining a sexual relationship, four counts of rape and one count of attempted rape.

The complainant in respect of each of the offences, was the daughter of the appellant's de facto wife.  The appellant appeals against his conviction on eight grounds.  His written submissions, filed on 24 January 2003, raise further matters.
The appellant is self-represented on this appeal.

The complainant was born on 13 September 1984.  The indictment particularised the offences as occurring variously during the period 12 September 1992, to 4 February 1999.  On 24 February 1999, a son was born to the complainant.

Evidence given by forensic scientist, Mr B R Blair at the trial, who had been supplied with a sample of blood from the appellant and saliva samples from each of the complainant and her son, was that there was a 99.996 per cent probability that the appellant was the father of the complainant's son.

As each of the appellant and the complainant are Aboriginal, Mr Blair used an Aboriginal data base to determine that within the Aboriginal population, the appellant was 24,500 times more likely to be the father of the complainant's son than if someone was picked at random from that population.

Grounds 1 and 2 claim that the learned trial Judge erred in law when he declared each of the complainant and her cousin, who was two years younger than her and a member of the relevant household during the relevant period, to be a special witness for the purpose of Section 21A of the Evidence Act 1997 and permitted each of these witnesses to give evidence by video link from another room.

There was ample material before the learned trial Judge to support the conclusion that each fell within the definition of "special witness".  There is no basis on which the appellant can challenge the learned trial Judge's discretion to treat each of these witnesses as a special witness.

Grounds 3 and 4 relate to the DNA evidence of Mr Blair.  The learned trial Judge ruled that the evidence be permitted to be given by telephone.  There was no issue about Mr Blair's credibility.  There is no basis to attack the exercise of the learned trial Judge's discretion in this respect.

The appellant's counsel objected at trial to the admissibility of the DNA evidence, on the basis that it was irrelevant and that its prejudicial effect outweighed its probative value.
The evidence was strongly probative and clearly relevant to whether the relationship between the appellant and the complainant included sexual intercourse.  There was no error in the learned trial Judge's allowing this evidence to be adduced.

Grounds 5 to 8 are based on the particulars of the offences that were provided by the Crown to identify the occasion of each of the offences.  It had been proposed by the Crown to proceed on the basis that the appellant's de facto wife be named as a co-offender in respect of the rape that was count 4 on the indictment.

On an application in advance of the trial, the appellant's de facto wife obtained an order for a separate trial in respect of her alleged role in that rape.  The appellant's complaint is that the particulars were prejudicial to him, in failing to mention the involvement of his de facto wife and that defect should have been brought to the attention of the jury by the learned trial Judge.

These grounds misconceive the purpose of the particulars.  Evidence of the involvement of the appellant's de facto wife in relevant events, was before the jury.  It was not relevant to the purpose for which the particulars were provided, that the involvement of the appellant's de facto wife be expressly mentioned in those particulars, which otherwise provided detail to enable the specific occasion of each offence to be identified.

If the appellant were to seek leave to amend the notice of appeal, to include the additional matters raised in his written submissions, that leave should be refused, as nothing is raised by those written submissions, which could be successfully relied on by the appellant in this appeal.

The first additional matter is a claim that the learned trial Judge erred in allowing a juror to indicate that she knew one of the witnesses, to remain a juror.  This juror knew Constable G P Grant, who gave evidence about the transporting of the blood sample of the appellant and the saliva samples of the complainant and her son to police headquarters in Brisbane.  He was not cross-examined at the trial.

The juror indicated to the learned trial Judge that she did not consider that her knowledge of Constable Grant would impair her ability to act as an impartial juror.  There is no basis whatsoever for challenging the learned trial Judge's ruling that she remain.

The next additional matter claims that the learned trial Judge erred in not allowing a letter which was located by the police in the relevant household, from being put into evidence.

It appears the letter was lost by the police, but was able to be seen in a photograph that was tendered.  One of the police witnesses gave evidence of what he recalled of the contents of the letter.  Evidence of the contents of the letter was therefore admitted.

The next additional matter arose from a ruling of the learned trial Judge, in refusing to allow the appellant's counsel to cross-examine the complainant, by reference to the contents of a document which was described as the affidavit of the complainant, but was not in fact a sworn copy.

There was no evidence put before the learned trial Judge to establish that there was in fact a sworn affidavit of the complainant in those terms.  In any case, the complainant conceded in cross-examination, that she may have told the solicitor acting for the appellant, that there was never any sexual relationship between the appellant and her, but stated that they forced her to say that.

The next additional matter raised by the appellant, is also misconceived.  It refers to the learned trial Judge allowing into evidence a statement made by Rachel Bon.  The learned trial Judge in fact ruled that evidence of the complaint made by the complainant to Ms Bon, on 4 October 2000, was not admissible as evidence of relevant or fresh complaint.

At the hearing of this appeal, the appellant made the point that the complainant was taken from the household in April 1999 and did not make any complaint until 4 October 2000.  The learned trial Judge gave the jury an appropriate direction in respect of there being no evidence of recent complaint.

The appeal should be dismissed.

DAVIES JA:  I agree.

McPHERSON JA:  I also agree.

DAVIES JA:  The appeal is dismissed.

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