R v Muller

[1998] QCA 364

IN THE COURT OF APPEAL  [1998] QCA 364

SUPREME COURT OF QUEENSLAND

C.A. No. 281 of 1998.

Brisbane

[R v. Muller]

THE QUEEN

v.

DAVID JOHN MULLER

Appellant

McMurdo P.

Pincus J.A.

Shepherdson J.

Judgment delivered 12 October 1998

Reasons for Judgment delivered 13 November 1998

Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED.  VERDICT OF ACQUITTAL ENTERED.

CATCHWORDS:      CRIMINAL LAW - conviction - unlawful carnal knowledge of girl under 16 years - appellant charged with 3 counts, but convicted only on count 2 - complainant’s evidence with respect to date and place at which act of intercourse constituting count 2 occurred varied substantially at committal and trial - evidence of conduct of a sexual nature apart from the 3 counts charged - whether jury were properly directed as to the use which could be made of this evidence - whether trial judge wrongly directed jury that a statement made by appellant to complainant’s brother could be used as an admission of guilt - whether misdirections could not have made a difference to the verdict.

Criminal Code s. 215

Gipp (1998) 72 A.L.J.R. 1012

Counsel:  Mrs D Richards for the appellant.

Mr W Clark for the respondent.

Solicitors:  Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:   12 October 1998.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 October 1998

Reasons for Judgment delivered 13 November 1998

1. This is an appeal against conviction, the appellant having been convicted on one count of having had unlawful carnal knowledge of a girl under the age of 16 years - the offence created by s. 215 of the Criminal Code. He was sentenced to 6 months imprisonment and has served part of that period.

1. The appeal is advanced on the basis that the conviction was unsafe and unsatisfactory and on three more specific grounds: 

   (1)       that the judge should have excluded evidence from the complainant’s parents of having found the complainant and the appellant in bed together;

   (2)       that there was no direction given to the jury as to the use which could properly be made of the evidence referred to in (1) and other evidence of that character;

   (3)       that the judge wrongly directed the jury that a statement made by the appellant to the complainant’s brother could be used as an admission of guilt.

1. At the conclusion of the argument the Court ordered that the appeal be allowed and a verdict of acquittal entered;  it was announced that reasons would be given later.

1. It is our opinion that whether or not the verdict could properly be characterised as unsafe, the appeal must be allowed on grounds (2) and (3) set out above.  It is however desirable, as the respondent contended that any misdirection did not lead to a miscarriage of justice, to give some explanation of what was said to be an aspect of the case supporting the view that the conviction entered was unsafe. 

1. The appellant faced 3 counts, all alleging unlawful carnal knowledge of the same complainant;  the first offence charged was said to have occurred in October 1995, the second in March 1996 and the third in April 1996.  After a retirement of some hours the jury told the judge that they were "undecided" with respect to the first and third counts;  a verdict of guilty on the second count was returned.

1. The Crown case at the trial was that the appellant, a man born in 1963, had the first and second acts of intercourse alleged in a vehicle stopped beside a roadway;  the complainant swore to this and said that the third act occurred while the two were in bed together at the complainant’s family home.  As we have mentioned, there was a conviction only on the second count.  It emerged from the cross-examination of the complainant that, at the committal, she swore that the second occasion on which she had intercourse with the appellant occurred during the Christmas holidays in a bed at her family home.  It also appeared from cross‑examination that the complainant said at the committal that she had intercourse with the appellant only once in a car and twice at her parents’ home.  The impression created is that the complainant’s evidence with respect to the date and place at which the act of intercourse constituting count 2 occurred varied substantially, comparing her evidence at committal with that at trial;  she seemed to have attributed count 2 to two quite different occasions.  Other circumstances were relied on by Mrs Richards in support of the contention that the verdict was unsafe, but it is unnecessary to discuss those.  Nor do we intend to deal with ground (1), set out above.

1. As to ground (2), there was evidence of various kinds suggestive of a sexual relationship between the appellant and the complainant.  The complainant’s brother gave evidence of an occasion which he could not confidently place in time, when he was a passenger in a vehicle with the appellant and the complainant.  He said the complainant was sitting in the middle of the front seat and that the appellant had his hand on the complainant’s leg above the knee for some 5 or 10 minutes.  The complainant’s father gave evidence that some time in 1995, or later, he saw the appellant and the complainant in bed together after the father arose in the morning.  These incidents occurred at the complainant’s parents’ home;  he said the two were in bed "cuddling up" to one another.  On another occasion, the father said, he saw the complainant, after dark, on the back of a utility vehicle with her legs apart and around the appellant’s waist.  The father said that as he approached, the appellant "pulled back virtually" and his hand "went down the front of his fly".  The complainant’s mother also said that she saw the complainant and the appellant in bed together, but that this occurred only on one occasion.

2. The learned trial judge gave directions as to the relevance of the evidence of the mother and father about finding the parties in bed.  His Honour said:

   "Since her lack of veracity in some respects is established and is important, you may want to look at other parts of the evidence to see whether there is support for what she says in other evidence which you can accept, and there is some evidence which you may accept as being support for her.  Support can be found in the evidence of her parents . . . who say that they found the two of them in bed in the sun room.  Now, it is a matter for you whether you think that evidence does, in fact, support what [the complainant] says happened between them;  namely, sexual intercourse on those three occasions, but it is capable of supporting that.  It is a somewhat bizarre situation, you may think, for a man of that age and a girl of that age to be in bed together, although there is no evidence of what was happening at the time, but that hardly matters.  You are entitled to regard that, if you wish, as evidence supporting [the complainant’s] evidence."

A little later, the judge referred to the same evidence again and to the fact that the complainant had denied what her parents said "about the incident in the bed";  his Honour went on then:

". . . but it is a matter for you what significance you give to that.  It would still be capable of supporting her evidence of carnal knowledge". 

It will be noted that the directions which have been quoted did not refer to the father’s evidence about finding his daughter in the back of a utility with her legs apart and around the appellant’s waist;  his Honour gave no directions as to the relevance of that evidence.

1. The complainant herself gave evidence of certain contact with the appellant of a sexual nature, other than those charged.  She spoke of an occasion in December 1995 or January 1996 when she got into the appellant’s bed at her parents’ home and "we started kissing and started touching me on the breasts and the vagina".  After giving evidence of having had intercourse in April 1996, she was asked whether there was any other sexual contact, and answered "[t]here was others but I can’t remember when".  In response to further questions about other forms of sexual contact she said "[t]hey were oral as I can remember - I think I can remember".  The evidence given by the complainant about further uncharged sexual acts with the appellant included:

   "Do you know how many times that took place?--  No.

   Were there any other instances of sexual intercourse?--  Yes.

   Do you know how many times?--  No.

   Do you know when those took place?--  No."

1. In summary, then, there was evidence of various kinds with respect to conduct which either was, or might well have been, of a sexual nature between the appellant and the respondent - apart from the three acts of intercourse charged.  The most recent consideration of a similar case by the High Court is to be found in the Court’s decision in Gipp (1998) 72 A.L.J.R. 1012, where the appellant was convicted on a number of counts alleging sexual abuse of his step-daughter. There, the complainant gave evidence of sexual abuse which "happened on a regular basis" and happened "once a week, maybe twice a week". The judge told the jury that such evidence was "led to show the nature of the relationship between the complainant and the accused" and that there was "no need for [them] to be satisfied beyond reasonable doubt of those background facts . . . provided that [they] accept[ed] the complainant’s account that it occurred".  In addition to the evidence to which we have referred, of other sexual incidents, the jury in Gipp had before them evidence relating to two counts which the prosecutor "withdrew".  Gaudron J. criticised the judge’s direction with respect to the evidence of sexual abuse other than that which was the subject of the convictions, saying that the direction:

   ". . . left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the specific offences charged". 

McHugh and Hayne JJ. said of the general evidence about other acts of sexual abuse that it was ". . . admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant".

1. Although the reasons of McHugh and Hayne JJ. were dissenting reasons, the part we have quoted was referred to with approval in the leading judgment in LSS (C.A. No. 128 of 1998, 2 October 1998) (para. 31).  In that judgment, by Thomas J.A., his Honour also referred to a statement of Pincus J.A. in K (C.A. No. 64 of 1998, 23 June 1998), that evidence of uncharged instances may be let in to show "a sexual passion or relationship".

1. It appears to us that the principle to which we have referred, although stated in Gipp as applicable to instances of sexual abuse, is equally applicable to other evidence of contacts which might reasonably be supportive of the existence of a sexual relationship between the parties;  this comment applies to the brother’s evidence that the appellant had his hand on the complainant’s leg above the knee, and to the parents’ evidence of seeing the parties in bed together and to the father’s evidence with respect to the incident in the back of the utility.  The judge referred to the evidence of the two being in bed together as being "capable of supporting" the happening of sexual intercourse between the parties on the three occasions charged.  The direction given is less defensible than that which was held in Gipp to be inadequate.  Although the learned judge, in the present case, left it to the jury to determine whether they would treat the evidence of the uncharged sexual contacts as probative of guilt of the offences charged, he indicated that it would be proper for them, if they thought fit, to do so.  Logically, evidence of the uncharged sexual contacts could not have assisted the jury to resolve the difficulty relating to count 2 to which we have referred above. 

2. The learned primary judge’s directions to the jury were, in summary, inadequate insofar as they related to the relevance of the uncharged sexual contacts.  His Honour should have instructed the jury that they could show the existence of a sexual passion or relationship, but could not go to prove that the specific events charged took place. 

1. As to ground (3), the judge, in discussing the evidence of the complainant’s brother that the appellant had his hand on her leg above the knee, mentioned further evidence given by the brother constituting a threat by the appellant.  The brother gave evidence to the effect that the appellant asked him, after this incident, how much he knew about what had happened between the appellant and the complainant;  the brother said he replied "[o]ver the last few weeks I have been noticing some things.  I know a fair bit", to which the appellant said "[i]f you breathe any of this to your parents, one of these days I’ll take you out, you won’t get home again".  The direction the judge gave about that threat was as follows:

   "That is evidence, if you believe [the complainant’s brother], which is capable of amounting to, in effect, an admission of guilt on the part of the accused and is, therefore, capable of supporting [the complainant’s] evidence.  So you could look to that evidence as supporting her, if you wish".

1. Mrs Richards said that the direction that the appellant’s threat could be regarded as an admission of guilt was incorrect.  We agree;  it could not reasonably have been regarded by the jury as an admission that the appellant had committed any of the offences with which he was charged.  No doubt it could, in the context, have been treated as indicating that some sort of improper sexual relationship existed at the relevant time, or was then developing.  We have referred above to the fact that the brother seemed unsure as to the time when this incident occurred.

2. Counsel for the respondent did not, as we understood his argument, seek to contend that the summing-up was free from deficiencies;  but it was suggested that the proviso should be applied, on the basis that the misdirections which have been identified could not have made a difference to the verdict.  Since the jury appeared to have been uncertain about the veracity of the complainant’s version with respect to two of the counts and what she had said about count 2 at the trial differed greatly, as we have explained, from the version given at committal, the Crown’s reliance on the proviso appears to us somewhat optimistic.

Summary

1. In our respectful opinion, the learned judge misdirected the jury insofar as his directions could have conveyed to them that evidence of certain uncharged sexual contact could support the complainant’s evidence that she had intercourse on three identified occasions and further erred in failing to give them any direction as to the relevance of evidence of other uncharged sexual contacts.  Further, his Honour erroneously told the jury that the threat to which we have referred could be treated as an admission of guilt.  The case is one in which there is no possibility of holding that, if these errors in the summing-up had not taken place, the verdict must have been the same.

1. The appellant having served almost two months of his six month sentence, and the jury being unable to agree on two of the three charges originally brought, a new trial should not be ordered in this case.

1. These constitute our reasons for the orders which were, as we have mentioned, made on the day of hearing of the appeal.