R v Massey

[1996] QCA 230

IN THE COURT OF APPEAL	[1996] QCA 230
SUPREME COURT OF QUEENSLAND

C.A. No. 72 of 1996

Brisbane

Before	McPherson J.A. Davies J.A. Demack J.
[R. v. M]

T H E Q U E E N

v.

M

(Appellant)

McPherson J.A.
Davies J.A.

Demack J.

Judgment delivered 12/07/96

Joint reasons for judgment by McPherson J.A. and Demack J.; separate reasons by

Davies J.A. concurring as to the orders.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS	CRIMINAL LAW - CORROBORATION - Whether corroboration evidence of an act of sexual misconduct on a later occasion is capable also of corroborating evidence of the complainant about similar acts on an earlier occasion or occasions. R. v. McCann [1972] Tas. S.R. (N.C.) 3 followed; R. v. Sakail [1993] 1 Qd.R. 312 followed.
CRIMINAL LAW - SENTENCE - Primitive and barbaric sexual conduct by stepfather towards stepdaughter
Counsel:	G. McGuire for the appellant D. Meredith for the respondent
Solicitors:	Nicholsons for the appellant Director of Public Prosecutions for the respondent
Hearing Date:	12 June 1996

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & DEMACK J.

Judgment delivered the 12th day of July 1996

The applicant was convicted after a trial in the District Court at Toowoomba of one count of indecent dealing (count 1), three of indecent assault (counts 4, 6 and 7) and two of rape (counts 2 and 5). Count 3 was abandoned in the course of the trial. The sentences imposed were imprisonment for 2 years for the indecent dealing; imprisonment for 11 and 10 years respectively for the two rapes; and 7 years for the three indecent assaults. All sentences were to be served concurrently, so that the effective sentence was one of imprisonment for 11 years.

The appellant now appeals against his conviction and seeks leave to appeal

against sentence.

The offences were committed between July 1973 and July 1980 at various places in south eastern Queensland. The complainant, who was the appellant's stepdaughter, was born on 26 July 1961. She was 13½ years old at the time of the first offence (count 1), and some 19 years of age at the time of the last offence charged. The appellant was born in 1940, and was 55 at the time of the trial.

When she gave evidence at the trial the complainant was 34 years old and had been married. There is material in the record suggesting that she is of less than average intelligence, and as a child she attended a special school; but she was described by the judge as an impressive witness, and the jury obviously believed her testimony. The appellant himself, who was said to have a speech impediment, did not give evidence. Her evidence on the incidents giving rise to the charges was therefore uncontradicted, although three witnesses gave evidence for the defence on matters going essentially to the complainant's credit.

The jury were, on the material before them, plainly entitled to accept the complainant's evidence as they did, and on appeal a ground that the verdict was unsafe was not pursued. It was, however, submitted that the conviction should be set aside on the ground that the trial judge had not complied with the requirement, said to have been laid down in Longman v. The Queen (1989) 168 C.L.R. 79, at 91, in a case where a lengthy time had elapsed since the alleged offences were committed, of directing the jury that it would be "dangerous" to convict on the evidence of the complainant alone, "unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, were satisfied of its accuracy".

It was submitted that if this requirement was not strictly complied with, it was fatal to any conviction that followed. However, elsewhere in the joint judgment of Brennan, Dawson and Toohey JJ., from which that passage in Longman is taken, their Honours observed (at 86), that there are no set words in which the appropriate warning is to be given to the jury, and that the terms of the warning are to be adapted to the circumstances. In the present case the judge in summing up did not use the word "dangerous", but he explained to the jury the risks of acting on uncorroborated testimony of a complainant in the case of sexual charges, and he admonished them in terms that they should convict on that evidence alone only after carefully scrutinising it and after bearing in mind the warning he had given them about the risks it entailed. He went on specifically to emphasise how it was very often difficult to defend an allegation of a sexual kind, and that a person was put at "a very great disadvantage" in having to recall events which were said to have taken place so long ago. In the light of these directions, the jury can have been left in no doubt of the character and extent of their duty and function of assessing the reliability and accuracy of the complainant's evidence after the lapse of such a time. This ground of appeal therefore fails.

That leaves for consideration the main ground of appeal before us, which is that the judge ought not to have directed the jury that evidence given at the trial by the complainant's mother was capable of being considered as corroborating the complainant's evidence with respect to counts 1, 2, 4 and 5 in the indictment. By way of explanation, the mother's evidence was directly related to count 5, which charged the appellant with an act of rape committed between specified dates in July 1978 and June 1979. The complainant's evidence relative to that count was that one night he bent her over the laundry tub and had sex with her by inserting his penis in her vagina. As a result she became pregnant and a child S was born to her on 13 June 1979. By a process of deduction she was able to say that she was 17 years old when this incident occurred, which was in approximately September 1978.

The corroborative evidence relied upon consisted of the mother's testimony that after the baby was born the appellant had come to her and admitted that the baby was his. He had then almost immediately withdrawn the admission, but repeated it shortly afterwards. The mother's evidence to that effect was not challenged by the defence at the trial; and, in cross-examining the complainant, counsel for the appellant told her that he was not putting or suggesting to her "that there was no sexual relationship between you and [the appellant] M", but that other matters she complained of were "all made up". He then put it to the complainant that this occasion in 1978 was the first occasion on which she and M "had any sexual involvement at all". It was a proposition to which the complainant responded by saying it was not true.

The jury were entitled to have regard to the mother's evidence of the appellant's admission for the purpose of considering whether it tended in a material particular to confirm the complainant's own evidence that she had been raped by the appellant in about September 1978, which was within the limits of time averred in count 5. The complainant's evidence was that he had had sexual intercourse with her, and in consequence she had borne his baby. He admitted to her mother that the child was his. Of course, his admission to her mother did not establish the further element in the charge of rape that penetration had taken place without her consent. But it tended to confirm, and indeed established, her story that sexual intercourse had taken place, and in that way it corroborated her evidence by "increasing the probability that her entire testimony was truthful" (R. v. M. [1995] 1 Qd.R. 213, at 221). Without the mother's independent evidence of that admission, the complainant's testimony that the appellant had had sexual intercourse with her, and was the father of the child born in 1979, would have been completely unsupported by any evidence apart from her own word. Defence counsel's questions in cross-examination were not evidence that any sexual relationship existed between them, or that September 1978 was the first occasion on which there had been any sexual involvement between them.

The mother's evidence was therefore capable of being considered by the jury as supporting the complainant's account of the incident in the laundry in 1978. It is a more difficult question whether it was also capable of being considered as confirmatory of her evidence with respect to counts 1, 2 and 4. The dates on which the offences charged in those counts were alleged to have occurred, and the facts alleged to constitute them, were as follows. The first offence (count 1) was alleged to have taken place when the complainant was about 13½ years old (which would place it in about early 1974) in the course of driving back to Toowoomba after delivering a friend at Oakey. It was night time and she and the appellant were alone in the car. He stopped the car on a dirt track, and told her to get out of the car and take her clothes off, which she did. He touched her breasts and her vagina and inserted a screwdriver with a grooved handle, as she recalled it, into her vagina, which she said hurt her. She obeyed him because she was scared. At his direction, she also touched his exposed penis.

Count 2, which was a charge of rape, arose out of another car journey with the appellant. She was a little older then, probably about 14. Again it was night time, and they were alone, travelling to Brisbane. He made her drink alcohol from a bottle he bought at a hotel along the way. He forced her to drink it by pulling her hair at the back. She got out of the car and vomited, but he told her to get into the back of the vehicle, where he made her suck his penis, and then had sexual intercourse with her. It was, she said, a painful experience for her.

Based on her age at the time, count 2 can be related to a date in about 1974 or perhaps early in 1975. Count 4 (indecent assault) is perhaps more difficult to fix in terms of date or year, but the complainant said she was then more than 15 years old, and on that footing it was in about 1976. The appellant came into the bedroom where she was playing on the floor with her baby T, who was born before she was 15. He told her to put T back in the cot and to lie down on the floor. He had "something sharp" in his hands that he inserted in her vagina and which he pushed in and out. She bled a bit. The appellant's 10 year old son P was with him in the room at the time, and when he had finished the appellant said to him, "That's the way women should be treated".

There is authority that on a charge of an offence of a sexual character, it is open to the prosecution to lead evidence of prior sexual acts between the same parties. The leading decision is R. v. Ball [1911] A.C. 47 (a case of incest), which has been followed in Australia on many subsequent occasions. See R. v. Gellin (1913) 13 S.R. (N.S.W.) 271; R. v. Allen [1937] St.R.Qd. 32; R. v. Witham [1962] Qd.R. 49; Bradley (1989) 41 A.Crim.R. 297; R. v. Sakail [1993] 1 Qd.R. 312. The basis for admitting evidence of similar acts on occasions other than that or those specifically charged has been variously stated. In R. v. Ball [1911] A.C. 47, at 71, Lord Loreburn L.C. said it was admissible to establish "a guilty passion towards each other". That explanation has been adopted in some of the later cases: see, for example, R. v. Witham [1962] Qd.R. 49, at 77. R. v. Ball was a case of incest between brother and sister, where evidence of a mutual sexual passion might be thought to go far to proving an offence of that kind. On occasions it has been rationalised as tending to show the existence of an unnatural or unexpected relationship of sexual intimacy, as in the case of incest and sodomy between father and daughter: R. v. Witham, at 81. In the same case, Stable J., concluded that the true basis of admission is that the evidence forms "part of a chain of relevant circumstances explaining the prisoner's conduct and the exclusion of which would render the other evidence unintelligible or make it impossible for the jury to obtain a proper appreciation of the events of a particular day" (R. v. Witham [1962] Qd.R. 49, at 82).

His Honour adopted that explanation after an extensive review of the authorities, including R. v. Gellin (1913) 13 S.R. (N.S.W.) 271, where, at 277, Cullen C.J. said:

"She is the only witness testifying that it took place. There was no circumstance, other than the previous history of the relations between the parties, to throw light on the question whether she was telling the truth or not. Her word stood against the word of the accused, and, unless the history of the case were put before the jury, the appeal would be irresistible on the part of the accused to reject or to doubt the sole evidence of the commission of the offence, because nothing would be explained beyond the bare fact that on a certain day it was stated carnal intercourse took place ... There would be no acts on which they could judge whether she had previously been an innocent girl or one of those precociously depraved children whose word can only be received with the very greatest caution."

The notion that evidence of similar acts, facts or events on other occasions is admitted to explain and lend verisimilitude to what would or might otherwise appear in the complainant's evidence as an isolated and possibly incredible incident also enjoys the high authority of Willes J. in R. v. Rearden (1864) 4 F. & F. 76, at 80; 176 E.R. 473, at 476, where that learned judge said:

"It has repeatedly appeared to me in cases of this sort, that the man, by a threat of violence, deters the child from complaining, and thus acquires a species of influence over her by terror which enables him to repeat the offence on subsequent occasions, and this seems to me to give a continuity to the transaction, which makes such evidence properly admissible."

R. v. Rearden was referred to with approval in both R. v. Gellin and R. v. Witham. See also Bradley (1989) 41 A.Crim.R. 297, at 302.

In the present case the evidence of the incident alleged to constitute the offence in count 5 was admitted at the trial of the indictment against the appellant which charged him with the incidents constituting counts 1, 2 and 4. The decisions referred to demonstrate, however, that details of those three incidents, even if they had not been charged as offences, would, for the reasons given in R. v. Gellin and R. v. Witham, have been admissible in proof of count 5. Of course, this is necessarily always subject to the overriding discretion and duty of the trial judge to exclude evidence if its probative value is greatly outweighed by its prejudicial effect, and also subject to the considerations referred to by the High Court in S. v. The Queen (1989) 168 C.L.R. 266. Here, however, no question of latent ambiguity or lack of specificity of the kind considered in S. v. The Queen arose at the trial. The complainant's evidence of each incident was specific and provided sufficient detail of date, place and particular to enable the charge to be readily identified in each instance.

From what has been said, it is clear that evidence of similar acts and transactions is admissible as tending to the proof of the offence charged. Where the evidence of one or more of those acts is confirmed by independent evidence, it is also capable of corroborating the testimony of the complainant with respect to the particular incident or occasion that is charged as the offence. So much is established by R. v. Hartley [1941] 1 K.B. 5. There the appellant was charged with an act of buggery committed on the complainant C.E.H. There was no corroboration of the complainant's evidence of that act, but there was corroboration from other witnesses of two previous acts of buggery by the appellant of which the complainant gave evidence at the trial. In delivering the judgment of the court, Humphreys J. said ([1941] 1 K.B. 5, at 7) that the evidence of those witnesses "was clearly evidence which the jury were entitled to say strengthened the evidence of [the complainant] C.E.H.". The decision in R. v. Hartley was cited with approval in R. v. Witham [1962] Qd.R. 49, at 83, and also in R. v. Sakail [1993] 1 Qd.R. 312, at 319.

R. v. Hartley was, however, a case in which the corroborated incidents relied on to confirm the complainant's testimony with respect to the specific act charged had taken place before that act was alleged to have occurred. In the present case the prosecution relied on the mother's evidence with respect to count 5 in order to corroborate the complainant's evidence, not only as to that charge of rape alleged to have been committed in 1978, but also her evidence concerning the other charges of indecent assault (count 1), rape (count 2), and indecent dealing (count 4) alleged to have been committed in 1974, 1975 and 1976. The question, which is the specific point taken by the appellant on this appeal, is whether the evidence was and is capable of being used for that purpose; that is to say, whether evidence of a later incident is capable of being used to corroborate an earlier incident or incidents.

The authorities make no distinction between similar acts taking place before, and those taking place after, the act charged. R. v. Rearden is a case in point. On a charge of raping a 10 year old child on a Thursday, Willes J. admitted evidence that the accused had also had sexual intercourse with the child again on the following Saturday and Monday. In R. v. T.J.W., ex p. Attorney-General [1988] 2 Qd.R. 456, the Court of Criminal Appeal, on a reference under s.669A of the Criminal Code, held that the decision in R. v. Witham, that evidence of acts of indecency by an accused person upon a complainant "before and after" the alleged sexual offence was admissible, had not been overruled by later decisions. The specific point raised here, which is whether corroborated evidence of an act of indecency or sexual misconduct on a later occasion is capable also of corroborating evidence of the complainant about similar acts on an earlier occasion or occasions, has been considered in Australia on at least two occasions. In R. v. McCann [1972] Tas. S.R. (N.C.) 3, on a charge of defiling a girl under 18, there was evidence of an admission by the accused of sexual intercourse with the girl on dates subsequent to those charged. Crawford J. overruled an objection that the admission was incapable of corroborating any particular act of intercourse. The report of the ruling is given only in note form, but it records the learned judge as having held "that the corroboration required is only of a material particular and that the admission of a guilty passion corroborated the girl's evidence in a material particular and was therefore sufficient".

The second decision of relevance is of the Court of Criminal Appeal in R. v. Sakail [1993] 1 Qd.R. 312. The appellant was charged with two counts of rape committed in May and November 1988. There was evidence of an admission by him to police of sexual intercourse with the complainant, but it was not capable of being related to either of those occasions and apparently referred to another occasion in August (which the complainant herself may have denied: see [1993] 1 Qd.R. 213, at 323, per Ryan J.). The trial judge directed the jury that the admission was capable of constituting corroboration, but only in respect of either the first occasion or the second occasion, and not both or otherwise. The jury returned a verdict of guilty of the November rape but not guilty of the May rape.

Macrossan C.J. (with whose reasons Ryan and Byrne JJ. agreed) said that the trial judge's direction on corroboration was unduly favourable to the accused, and that it perhaps explained why the jury had distinguished in their verdicts between the two charges of rape. After referring to R. v. Ball, R. v. Allen, and O'Leary v. The King (1946) 73 C.L.R. 566, the learned Chief Justice went on ([1993] 1 Qd.R. 312, at 316):

"A particular application of the principle is to be seen when someone is accused of committing sexual offences with a single complainant. Circumstances which place the sexual side of the two persons' relationship in perspective may be admitted in evidence. Proof of similar activity or of activity of a related kind both before and after the specific acts charged may be given as showing the relationship between the two persons (in some contexts referred to as 'the guilty passion'). This evidence may be given because, when known, it can be persuasive that the act charged actually occurred and it can do this directly by making the allegations seem more likely or (if, indeed, this is a difference) by providing a helpful context for decision upon the matter."

His Honour added (at 317) that the appellant's admission of sexual intercourse in that instance "may be regarded as circumstantial evidence in proof of the matters charged"; and that "circumstantial evidence can constitute corroboration". The evidence of the appellant's admission, his Honour said:

"... was capable of constituting corroboration because it could be regarded as supporting the Crown proof, and, in contrast with the substance of his Honour's direction, it should be said that it supported proof of both charges and not just, at the most, one of them."

With respect, his Honour's reasoning, supported as it is by the authorities he cites some of which have been referred to here, is persuasive and disposes of the present ground of appeal. The decision is readily accessible, and it would have been helpful if it had been cited from the Bar table on this appeal, instead of leaving the matter to be argued, as it was, as one of first impression.

Two matters merit further comment. One is that in directing the jury that they were entitled to view the appellant's admission to the complainant's mother as capable of corroborating the complainant's testimony with respect to counts 1, 2 and 4, as well as count 5, the learned trial judge ought to have directed the jury as to the particular use that could be made of that evidence in relation to counts 1, 2 and 4; that is, as enabling them to understand the true relationship which, according to the prosecution evidence, prevailed between the parties beginning with the time when the complainant was about 13½ years old in 1974. The judge did not specifically direct the jury in this particular; but no re-direction was sought on the point, and the omission is not the subject of a ground of appeal before us. In view of the overall strength of the complainant's evidence as it appears to have been at the trial, it is not a matter that should now be regarded as a basis for upsetting the conviction in this case.

The second point concerns the lapse of time between the offences charged in counts 1, 2 and 4 and the date or occasion of the offence charged in count 5. In R. v. Sakail [1993] 1 Qd.R. 313, at 319, Macrossan C.J. sounded a caution concerning an admission by a person, who was accused of rape, to the effect that he had been involved with the complainant "many years before" and had forced her to have sexual intercourse with him, "but had not seen nor had any contact with her for the last ten years ...". His Honour said that an instance like that might be regarded as showing nothing about the relationship between the two at a relevant time, and as being not reasonably capable of demonstrating on a circumstantial basis anything touching the likelihood of the occurrence of the matter charged. The present case is, however, not of that kind. On all the evidence at the trial, the relationship, begun by the first act of indecent assault in 1974, was maintained by the appellant's committing further acts of the same or a similar or more serious kind in successive years. Eventually, the appellant and the complainant left the home where they were living with her mother, and went to live together at a caravan park. It was permissible and appropriate for the jury to be told enough of what passed between them to enable them to form a reliable impression of the true state of their relationship over the years. Without the assistance of that evidence, the defence as well as the prosecution would have been placed at some disadvantage in demonstrating where the truth lay. In McConville v. Bayley (1914) 17 C.L.R. 509, at 512, Griffith C.J. said that "... when it is a question of innocence or guilt as to the relations between a man and a woman who are not married, the whole history of the relationship is necessarily involved". To apply that observation without qualification to criminal proceedings may go too far; but it is not inappropriate to the circumstances of the present case as disclosed in the evidence given at the trial.

Turning to the matter of sentence, it must be said that an overall sentence of 11 years is capable of being considered severe. However, the appellant was convicted of two counts of rape on the same girl, one of which was committed when she was only about 14 years old and the other when she was 17, from which she bore him a child. By themselves, those two offences might be expected to attract an effective sentence of imprisonment for some 8 or so years. He is 20 or more years older than she, and it is plain that he used both the authority of and the opportunities afforded by his being the complainant's stepfather to impose sexual demands upon her. In addition, he obviously has a penchant for sexual behaviour that was not only primitive and barbaric, but physically painful and grossly humiliating and demeaning of her as a human being. The use of the screwdriver (count 1) and the sharp instrument (count 4) have already been mentioned. Count 6 charged an assault when he stuck the head of a hammer into the complaint's vagina causing her to bleed. Count 7 consisted of a further such charge in which she was forced to submit to the appellant's pushing a knitting needle inside her vagina, making her bleed, because he thought she was pregnant. Needless to say, she found the experience painful. It could easily have proved fatal. In sentencing the appellant the learned trial judge expressed the view that he had "ruined what chances this girl had of a normal life". It is difficult to disagree with that assessment. The appellant is not shown to have displayed any remorse for his conduct either at the trial or on any earlier occasion. The most that can be said by way of mitigation is that, from what we know of it, his intelligence may not be much beyond that of his unfortunate victim. It is, however, no excuse for what he did. Even the meanest of us knows that people are not to be treated in this inhuman fashion.

The application for leave to appeal against sentence was not strongly pressed after it was observed that, in the court below, defence counsel acknowledged that a sentence of imprisonment for 10 years would not be inappropriate. The effective sentence in fact imposed was higher than that; but not by such a margin as would justify this Court in intervening to reduce it.

The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be refused.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 12th day of July 1996

I have had the advantage of reading the judgment of McPherson J.A. and Demack J. and I adopt their Honours' statement of the relevant facts. As appears from their Honours' reasons, the central question in this appeal was one of corroboration; whether a confession made by the appellant to his wife that he was the father of a child born to the complainant, his stepdaughter, on 19 June 1979 was capable of being corroborative of her evidence that he had raped her at about the time when that child was conceived (count 5) and of her evidence that he had indecently assaulted her in 1974 (count 1), that he had raped her in that year or in 1975 (count 2) and that he had indecently assaulted her in about 1976 (count 4). At the respective times of the acts charged, the complainant was approximately 13½, 14, 15 and 17. The appellant was more than 20 years older than she.

I do not find any difficulty in agreeing with their Honours' conclusion that that confession was capable of being corroborative of the complainant's evidence in respect of count 5. Although the appellant did not, through his counsel, challenge the evidence of the appellant's wife, the complainant's mother, that he had told her he was the father of the child, his counsel nevertheless contended on his behalf that the incident the subject of count 5 did not take place, presumably on the basis that there was some other and quite different act of consensual intercourse at about the same time. The case put for the appellant, although he did not give evidence, was that consensual intercourse between him and the complainant commenced about that time. In my view the confession was capable of supporting the complainant's evidence that an act such as she described occurred at about the time that she said it did. Taken together with the respective ages of the appellant and the complainant and their relationship of parent and child the confession was, in my view, capable of being corroborative of her evidence upon count 5[1].

[1]           R. v. M. [1995] 1 Qd.R. 213.

A more difficult question is whether the appellant's confession was capable of corroborating the complainant's evidence in respect of counts 1, 2 and 4. The question is not just one of corroboration; it is one of relevance or, as it is sometimes said, probative force. Indeed if the evidence of the appellant's confession was relevant to the offences the subject of counts 1, 2 and 4 it was capable of being corroborative of the complainant's evidence in respect of those offences because the only basis of its relevance can be that it supports her evidence that each of those offences occurred.

In a case such as this, that is where an adult (often a parent or stepparent) is charged with an offence of a sexual kind against a child, evidence of other sexual acts by that adult against that child at about the same time as (whether before or after) the act charged is relevant, increasing as it does the probability that the act charged occurred[2].

Similarly in such a case evidence of other sexual acts committed some time before the date of the act charged but continuing up to that date may be relevant to show that the relationship of the accused to the child was one of habitual sexual gratification thereby increasing the probability that the act charged occurred[3]. It is not essential in such a case that there be direct evidence that the relationship continued up to the time of the act charged if that may be inferred[4]. So, in this case, the complainant's evidence on counts 1, 2 and 4 was relevant and admissible on count 5.

A greater difficulty arises where, as in this case, evidence of a sexual act is tendered as relevant to commission of sexual offences which occurred two, three or possibly even four years before when the complainant was much younger. On the other hand the appellant's admission that, in effect, he had intercourse with his stepdaughter when she was 17 "supported the truth of the allegation which was implicit in the whole of the daughter's evidence, namely, that the [appellant] entertained an unnatural passion for her"[5] or, to put it more accurately in the present case, habitually abused her for his own sexual gratification over the whole of the period since she was about 13½. The unlikelihood of the coincidence that intercourse at the time at which the appellant first had intercourse with the complainant happened to produce a child, their differences in age and the relationship between them of parent and child may be considered in assessing the relevance of that admission to counts 1, 2, and 4.

Relevance is, of course, a question of degree and the degree of relevance appropriate for admissibility will often be a question on which judicial minds may differ. In my view the relevance of the appellant's confession to the events the subject of counts 1, 2, and 4 was not high. However that is not a reason for this Court to substitute its opinion for that of the learned trial Judge on the appropriate degree of relevance and I would not be prepared to say that the learned trial Judge was wrong in admitting evidence of the confession on those counts. This is not a case in which the prejudicial effect of the direction complained of, that it was also capable of corroborating the complainant's evidence on counts 1, 2 and 4, and implicitly that it was relevant and admissible on those counts, outweighed its probative force. I would therefore reject this ground of appeal.

Although there were a number of other grounds of appeal against conviction only one was pursued. On that ground I agree with the reasons of McPherson J.A. and Demack J. and I agree with them that accordingly the appeal against conviction must be dismissed.

I also agree with their Honours that the application for leave to appeal against sentence must be refused for the reasons which they give.

Williams [1987] 2 Qd.R. 777 are cases of this kind. And see Harriman v. The Queen (1989) 167 C.L.R.
590 at 628.

271, R. v. Etherington (1982) 32 S.A.S.R. 230 and R. v. T.J.W.; ex parte The Attorney-General [1988] 2
Qd.R. 456 are cases of this kind.

brother before the date on which incest became illegal strengthened the inference, from the fact that, after that date, they lived together in a house with only one bedroom in which there was one double bed which appeared to have been occupied, that they continued to commit incest.