R v M

[1995] QCA 283

THE COURT OF APPEAL [1995] QCA 283

SUPREME COURT OF QUEENSLAND

C.A. No. 78 of 1995

Brisbane

[R. v. M]

THE QUEEN

v.

M

Appellant

McPherson J.A.
de Jersey J.

Ambrose J.

Judgment delivered 23/06/1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - INCEST; whether trial Judge misdescribed one of the principal defence submissions to the jury; whether trial Judge erred in directing the jury that the complainant and her mother would be wicked if they were making and persisting with false allegations.
Counsel:	Mr. A. J. Glynn for the apellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 20 April 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 23rd day of June 1995

The appellant was convicted on three counts of incest committed upon his daughter, who was aged between 9 and 10 years at the time. Two occurred while the family lived together, and the third on Christmas Day, 1993 during a visit by the complainant and her mother to the family home after the appellant and his wife had separated.

The evidence against the appellant comprised essentially the evidence of the complainant, but with some supporting evidence, from her brother, R of observations of events which tended to give support to particular allegations she made, and medical evidence confirming that there had been some form of penetration of her sexual organs at some time.
The first count concerned events which occurred in a work area adjacent to an office at the home. The complainant said that the appellant put her onto a carpenter's work horse and penetrated her. Her shorts and pants were completely off, and her feet were on the ground. She demonstrated the separated width of her legs at 9 to 12 inches. Upon penile penetration, the complainant said that the appellant moved "up and down". When asked to explain what she meant by that term she demonstrated a back and forwards motion. Soon after the intercourse, the appellant's son, R appeared. The complainant said that she was then facing the appellant with her back to R.

The appellant apparently saw R approaching them. The appellant pushed the complainant into a small room near to the office, and kicked her clothes in after her. The appellant's fly was still apparently undone, and the complainant heard him say, "Do you know why the zip keeps going down?", to which R replied, "No". The supporting evidence from R comprised his account of an occasion in 1993, one plainly infers the same one, on which he ran downstairs to use the computer. The complainant and the appellant were facing each other. The complainant ran quickly to the storage room. R did not have a chance to notice whether she was fully clothed or not. The appellant's fly was down. He zipped it up. R said that he looked "weird ... he had watery eyes and a red face".

The second count concerned an act of sexual intercourse on a car. The complainant was face to face with the appellant. He ejaculated onto the car and wiped it with an handkerchief.

The third offence was committed on Christmas Day, 1993. The complainant and her mother were living away from the appellant. They visited the family home for the exchange of presents. The complainant was given a bicycle which developed a flat tyre. The three children of the family went downstairs to repair it. That evidence was given by the complainant, her mother and her brother. They each rejected a suggestion from the defence that the Christmas get together simply did not occur. (The appellant did not give or call evidence.) The complainant recalled that the three children were in the driveway outside the garage. R was pumping the tyre. The complainant said that the appellant called her in to the office, and that he pulled her pants down to below her knees, whereupon he penetrated her while they stood facing each other. He had one hand around her back and one hand across her mouth.

The first ground of appeal was that the learned trial Judge misdescribed one of the principal defence submissions to the jury, which was that the acts alleged by the complainant were physically impossible. The Judge stated the defence proposition this way in his summing up:-

"Now, another matter is this, defence counsel did emphasize to you that the girl's evidence could not be accepted and the submission really was put on the basis that as a matter of anatomy these things were simply not possible. Sexual intercourse between the child and the accused simply could not have taken place in the way that the child suggested."

Counsel conceded before us that that passage accurately and comprehensively stated the defence submission. There was challenge to what followed immediately:

"Now, members of the jury, these are very serious matters and I am not attempting to be facetious, but where there is a will there is a way. Many years ago there was a leading text book for lawyers on divorce matters and one of the subjects it used to discuss was the question of adultery and it made, what you might think, is a very apt observation that experience has shown that the only place where adultery cannot occur is on the ceiling. So where there is a will there is a way."

Counsel submitted in effect that by making that observation, from his position of authority within the court, the learned Judge demeaned the defence submission. Counsel conceded that the jury could conclude, notwithstanding his contention, that the alleged intercourse did occur. The real issue is whether by that observation the learned Judge should be regarded as having overborne the jury. We do not consider that he should be seen as having done that. Later, he reminded the jury of the defence submission in these terms:

"He (defence counsel) reminded you that the evidence of J was that the father was in a particular position on each of these occasions when he put his penis into her vagina. He suggested in various ways that the description of the girl as to how these acts occurred was simply impossible as a matter of anatomy and you would not expect it."

A Judge has a wide licence to make observations on the evidence and contentions put before the jury, and he did not exceed that licence in this case. The matter is in the end one of impressions, but we cannot conceive, having read the whole summing up, that the jury would have proceeded on the basis that they should have given the Judge's observations overwhelming weight. The second ground argued was that the Judge erred "in directing the jury that the complainant and her mother must be very wicked people in being parties to the making of and persisting with the allegations against the accused". The defence position was that the mother, R and the complainant conspired together to concoct the allegations against the appellant in order to advance the mother's position in other proceedings against the mother in the Family Court. In his summing up, the learned Judge said this:

"Now, it was suggested to you in various ways that this was, in effect, a put up job, that these were wicked lies by the child J, she had been put up to it by her mother, and the evidence from the boy R was also false. And these are all matters for you to determine as the sole judges of the facts in the case. But you saw Mrs M in the witness box. You might

think that she must be a very evil woman to put a child up to concocting these terrible accusations against the child's father. How did Mrs M strike you in the witness box? You might think that there must great wickedness in that child J to make up these terrible accusations against her father and to persist with them knowing them to be false. How did she strike you in the witness box? "

In a case like this where there is really no room for mistake in a witness's evidence - that is, she is either telling the truth or telling lies - a trial Judge must obviously be careful not to direct the jury in such a way as to exclude or muffle the possibility of the jury's being left in a state of reasonable doubt. See R. v G. [1994] 1 Qd.R. 540, 543 per Davies JA. That being so, it is pertinent to note here that almost immediately after dealing with that defence submission on conspiracy, the learned Judge reminded the jury of reasonable doubt. And furthermore, when dealing with the possibility of a false complaint from a child, the Judge instructed that it could be made for no reason or for a variety of reasons, and he listed some of the possible explanations. He also reminded the jury of the defence submission that it was the appellant who was on trial, not the complainant.

This was overall a strong Crown case, as indeed was conceded by counsel for the appellant. There was plainly no miscarriage of justice. This ground was not made out. While referring to a witness as possibly "wicked" may introduce an emotive element, and that would ordinarily be undesirable, it was a permissible approach here where the basic defence position was of a conspiracy of substantial dimensions, and when seen in context, should not be regarded as having had an overbearing or otherwise inappropriate effect.

The appeal should be dismissed.