R v Muller

[1995] QCA 276

IN THE COURT OF APPEAL [1995] QCA 276

SUPREME COURT OF QUEENSLAND

C.A. No. 58 of 1995

Brisbane

[R. v. Muller]

T H E Q U E E N
v.
MICHAEL KEVIN MULLER

(Applicant)

Appellant

MCPHERSON J.A.
DE JERSEY J.

AMBROSE J.

J udgment delivered 16/06/1995

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	INDECENT DEALING - challenge of trial judge's refusal to allow defence cross-examination of complainant following application made under s.4 of the Criminal Law (Sexual Offences) Act 1978 - whether court satisfied that the evidence sought to be elicited or led had substantial relevance to the facts in issue or was proper rather for cross-examination as to credit
WARNING TO JURY - whether trial judge erred in failing to warn the jury that they should carefully scrutinise the evidence of the complainant because of her age - uncorroborated sexual complaint
SENTENCE - trial judge took into account appellant's prior good character - no previous criminal history but warned of the seriousness of assaulting children - deterrent sentence imposed.
Counsel:	Mr. A. J. Glynn for the applicant/appellant Mrs. L. Clare for the respondent

Solicitors:  Legal Aid Office for the

applicant/appellant
Queensland Director of Public Prosecutions for

the respondent

Date of Hearing:  20 April 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/06/1995
The appellant was convicted in the District Court in January, 1995, following a trial, on two counts of indecent dealing.
The offences were committed upon the complainant in 1992 or 1993 when she was 12 or 13 years old. The appellant was a friend of the complainant's family. On some occasions, the complainant had spent the weekend at his home. The complainant gave evidence of digital penetration having occurred on two such occasions. On each occasion, she awoke in the middle of the night to find the appellant assaulting her. On each occasion she pretended to remain asleep. She made a complaint in August, 1993, which led to her being examined by a Dr Lockwood. The doctor found that the hymen had been torn and stretched to a circumference of eight centimetres. The appellant did not give or call evidence.
The first ground of appeal challenged the learned trial Judge's refusal to allow defence cross-examination of the complainant following application made under s.4 of the Criminal Law (Sexual Offence) Act 1978. The application was made to the learned Judge in these terms:

"Dr Lockwood is to give evidence in this case and he says that one part or one side of the girl's hymen was torn and he was able to insert his finger or index finger to an extent where it measured eight centimetres in circumference... he said that that was consistent with some sort of object being inserted through the hymen. I have instructions ... that the complainant on one occasion was in a panel van with another person for 15 minutes. That's the extent of my instructions on that topic. Because the Crown is entitled to lead the evidence of the tear in the hymen as being consistent with her evidence, in my submission I ought to be granted leave to raise the issue of panel van."

The Judge ruled that the matter could go only to the complainant's credibility, and would not be likely materially to impair confidence in her credibility, and so he refused the application.

Dr Lockwood did give evidence at the trial of finding evidence of a tear to the complainant's hymen and not being able to insert a gloved right finger into the hymen up to a particular point, that being suggestive of a number of possible causes, including prior penetration of the child by a finger or by pressure applied to the hymen by a penis. Against that background, counsel for the appellant submitted to us that the cross-examination was permissible as part of an attempt to add a further explanation for the medical finding.

The major difficulty with the submission is the sparsity of the instructions put before the learned Judge by defence counsel at the trial. Before granting leave under s.4, the Court must be "satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit". The mere assertion that "the complainant on one occasion was in a panel van with another person for 15 minutes" could not warrant the learned Judge's having been satisfied of that matter. A grant of leave could not legitimately facilitate a roving inquiry or what has sometimes called a "fishing expedition". The mere presence of the complainant in the van, if it occurred, obviously did not necessarily, or even probably, taken alone, suggest sexual activity. There is no ground for our interfering with the learned Judge's determination to refuse that application.

The second ground of appeal was that the learned Judge
"erred in failing to warn the jury that they should carefully

scrutinize the evidence of the complainant because of her age".

The complainant was 14 years 6 months at the time of trial.

Counsel for the appellant conceded that the Judge gave a sufficient direction about the dangers associated with uncorroborated sexual complaints. The summing up also included this passage which referred to her age:

"In this particular trial the Crown case depends upon the evidence of the complainant ... . She is now 14 years of age and is recounting events that she says occurred when she was 10 or 11 years of age and later. When you come to consider her evidence remember that

she is a child. Remember that a child is not a small adult; a child thinks like a child; a child speaks like a child, and you cannot expect adult standards from children. We all, in the past, have had experience with children whether as a mother, a father, a brother or a sister or a friend of children, you have all had some experience with children. You apply that experience and your commonsense in assessing the complainant's evidence. It is a matter for you entirely what significance you give to any conflicts or inconsistencies which you find in her evidence. If you find that there are inconsistencies and conflicts are the type of conflicts and inconsistencies that you would normally expect from a child having to recount events of this nature, or do they indicate to you that she is not telling the truth or do they leave you with a reasonable doubt as to whether she is telling the truth? "

Counsel for the appellant challenged that direction on the basis that it failed to mention "the need to approach such evidence with caution", counsel asserting that it appeared to be "more of an apology for any weaknesses in the evidence of the complainant because of her age".

We would have read the passage as inviting the members of the jury to assess the evidence of the child with care, as being the evidence of a child, and taking account of what they had come to learn of children through their own contact and experience. Counsel urged in the end, in essence, that because the child was only 14, the jury should have been told to "scrutinize" her evidence, or directed to similar effect, and that the direction which was given did not sufficiently focus the jury's attention on the need for that sort of caution.

In Wilson, unreported CA 355 of 1994, this Court referred to "a rule of practice that juries are reminded that the evidence of a child should be scrutinized with particular care", but added that "whether a warning is necessary in any case is a matter for the trial Judge, there being no fixed age below which it should be given". In CBR [1992] 1 Qd.R. 637, referred to with apparent approval in Wilson, de Jersey J said at p.639, of a 14 year old child giving evidence, that he was not sure "that she should at that stage necessarily still have been regarded as a 'child' for the purpose fo the application of this rule of practice", and added that "in any case, her developing maturity by that stage left the Judge with greater discretion to mould his 'warning' appropriately."

This was very much an area for the judgment of the learned trial Judge. What he has said should be regarded as his appropriately "moulded" direction. It is also significant in this particular case that no application for redirection on the point was sought. One infers from that that having observed the demeanour of the child, including her apparent level of maturity, defence counsel probably felt that the learned Judge need have gone no further than he did.

As suggested, it falls very much within the judgment of a trial Judge to determine whether a direction particularly concerned with the age and immaturity of a child witness should be given, and if so, its content. It would be wrong to say that where the age of the witness would conventionally lead to his or her being called a child, a direction must always be given, and that if given, it must always require an admonition that the jury "scrutinize" the evidence or to similar effect. A "child" of 14 may present as so mature that such a direction would not only be unnecessary, but inappropriately patronizing to the child as well. On the other hand, the nature of the evidence given, and the way in which it is given, may persuade the Judge that a direction is warranted. Much therefore depends on the Judge's assessment of the witness's presentation and performance in Court. One should of course work from the prima facie position that if the witness is a child, as conventionally understood, a direction to approach the evidence with special care may well be required. Whether it is, and if so its content, must then depend on the particular circumstances of the case, in which the judgment of the trial Judge, with the assistance of counsel, should assume prime significance. One should add that this is a prime case where if the trial Judge fails to mention the matter in his summing up, and counsel disagree with his apparent assessment, counsel should seek a re- direction, or preferably, assert before the commencement of the summing up that a direction in particular terms should be made.

This other ground of appeal was therefore not made out.

The appeal against conviction should be dismissed. We turn

to the application for leave to appeal against sentence.

The application, a 32 year old man with no prior criminal history, was sentenced to 15 months imprisonment. That occurred, as indicated, following a trial, which probably explains why no particular recommendation was made in relation to parole. In sentencing the applicant the learned Judge pointed out that the incidents involved protracted digital interference while the complainant pretended to be asleep, and could not be regarded as having involved momentary lapses by the applicant. The Judge observed that young sleeping children are particularly vulnerable, and referred to the applicant's abuse of his position of trust. The Judge acknowledged the applicant's prior good character, but pointed also to his lack of remorse.

Counsel for the applicant submitted that the 15 month sentence was substantially too high and urged this Court to consider a suspended sentence. We do not however consider the 15 month sentence imposed here, following conviction at trial, to be manifestly excessive, taking account especially of the seriousness of these assaults upon a sleeping child and the need for deterrence, while on the other hand allowing for the applicant's previous good character. Recourse to cases including Butler CA 16 of 1991, Vidot CA 262 of 1992, Smith CA 47 fo 1993 and Lennon CA 238 of 1993 demonstrates that the sentence of 15 months is within an appropriate range.

We would therefore refuse the application for leave to appeal against sentence.