R v N
[1998] QCA 425
•18/12/1998
| IN THE COURT OF APPEAL | [1998] QCA 425 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 252 of 1998
Brisbane [R. v. N]
THE QUEEN
v.
N
(Applicant) Appellant
McMurdo P.
McPherson J.A.Muir J.
Judgment delivered 18 December 1998
Separate reasons for judgment of each member of the Court, McMurdo P.
dissenting.
APPEAL AGAINST CONVICTION ALLOWED IN RELATION TO COUNTS 1, 2 AND 4. JUDGMENT OF ACQUITTAL ENTERED IN RESPECT OF COUNT 1. NEW TRIAL ORDERED IN RELATION TO COUNTS 2 AND 4.
CATCHWORDS: CRIMINAL LAW - appeal against conviction - sexual offences alleged to have been committed many years prior to the trial - whether conviction unsafe and unsatisfactory - adequacy of trail judge's summing-up - whether trial judge should have drawn attention to age of complainant at time of alleged offences and the length of time between those offences and bringing of charges.
| Counsel: | The appellant appeared on his own behalf. Mrs L. Clare for the respondent |
| Solicitors: | The appellant appeared on his own behalf. Director of Public Prosecutions (Queensland)for the respondent |
| Hearing Date: | 3 November 1998 |
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 18 December 1998
I have read the reasons for judgment of Muir J, who has summarised the
relevant facts.
In his notice of appeal, the appellant relies on three grounds. The first ground of appeal is that the trial judge erred in failing to order separate trials in respect of the charge of assault against the complainant’s mother. Joinder is permitted in the circumstances set out in s 567(2) of the Criminal Code. The facts of the assault were linked closely with the facts surrounding count 2 and were properly joined. No application was made to sever the counts either prior to or during the trial. In any case, as the jury acquitted in respect of the assault, it is difficult to see how the accused was prejudiced in respect of it being joined. There is nothing in this ground.
The next ground of appeal objects to the admission of evidence that the appellant was for a period in jail for unpaid traffic fines. In the report from the learned trial judge, his Honour notes:
“... it was opened by Crown counsel, without objection, that there was nothing sinister in the evidence that the accused had been in jail i.e. it was for traffic matters and that the evidence was being adduced in order to fix the date of count 1 of the indictment.
That this was so was made clear in the question and answer immediately after the one quoted in ground 2, i.e. ‘Can I ask you this: the occasions he went to jail were always related to traffic fines or something similar; is that correct? --- And overloading fines; things like that.’”
The Crown case was conducted on the basis that it was necessary that the complainant establish the dates within which count 1 occurred by means of reference to this period of imprisonment for unpaid fines: she claimed the appellant went to jail for unpaid fines shortly after count 1 occurred. The evidence was therefore relevant and admissible. Whilst there was inevitably some prejudice to the appellant from the evidence, it was minimised by the way it was given, with the emphasis that it related to traffic matters and the like. It was crucial to the prosecution case that the evidence be lead to establish the dates. Although it involved some prejudice to the appellant, its probative value outweighed this prejudice. No objection was taken to conducting the case in this way. There is no merit in this ground.
The appellant relied on further written submissions during the hearing. These matters have been dealt with by Muir J in paras 10-12 of his reasons for judgment and I agree with him that there is nothing in these points.
Muir J expresses a number of concerns about the summing-up by the learned trial judge, firstly as to the reliability of the complainant’s evidence because of her age at the time of the alleged offences and the length of time between those offences and the bringing of charges against the appellant and secondly as to the possibility that the complainant’s recollection may have been flawed, having regard to her young age at the time of the offences (especially counts 1 and 2) and to the delay, making particular reference to the observations of McHugh J in Longman v The Queen.[1] McHugh J noted that Longman was a case:
[1] (1989) 168 CLR 79, 108-109.
“... where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant’s testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over 20 years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences.”
McHugh J concluded that the failure to give any warning concerning the complainant’s evidence meant that the conviction must be regarded as unsatisfactory, and Muir J has here reached a similar conclusion.
The issue is whether, in all the circumstances, the learned trial judge has, in his summing-up viewed as a whole, dealt with that question in such a way as to leave a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory.[2]
[2] Longman per Deane J, (1989) 168 CLR 79, 97.
His Honour directed the jury that these charges were between 20 and 30
years old and said:
“Now, there is no time limit upon criminal prosecutions, but where there is a delay of the kind here you must give very careful consideration and scrutiny to the evidence. This scrutiny involves a number of factors, and in going through the factors you should understand that whilst it is open to you to convict the [appellant], if you accept the complainant beyond reasonable doubt as a witness of truth, before you do so, before you reach that conclusion, the following matters should be borne in mind by you: firstly, recent or fresh complaint in sexual cases is a matter which can be relevant to the consistency of the conduct by a complainant and hence to her credit.” (emphasis added)
His Honour then dealt with the evidence which, if accepted by the jury, was evidence of fresh complaint in respect of count 2 and pointed out that there was no such evidence in respect of counts 1 and 4.
His Honour next directed the jury that there was no evidence amounting to corroboration in respect of counts 1, 2 and 4. This may well have been overly generous to the appellant. It may be that the evidence from the complainant’s mother, that she returned home and found the appellant in the loungeroom with the complainant in front of him whilst he was pretending to read a newspaper which was upside down, may have been capable of constituting evidence of corroboration in support of the complainant’s evidence on count 2. It is unnecessary to definitively decide this matter for the purposes of this appeal. His Honour specifically directed the jury that that issue and the evidence of the appellant leaving the marital bed regularly at nighttime was not evidence that could be in law corroborative.
His Honour added:
“... there are two other things. One is that you should bear in mind the age of the complainant at the time of the offences and, secondly, whilst it is important to appreciate that there is no corroboration what you do not do and should not do is to make an assumption such as young children tend to tell lies about sexual matters and, therefore, there can be no conviction without corroboration. That is a totally incorrect piece of reasoning.” (emphasis added)
His Honour has therefore specifically told the jury to bear in mind the age of the complainant at the time of the offences. It is perhaps a little unfortunate that his Honour made an over-zealous attempt to comply with s 632(3) of the Criminal Code. That section states: “... the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses”. The section does not require a judge to address the jury in the terms used by his Honour in the passage just quoted. In the circumstances, his Honour’s words were merely superfluous and create no injustice as his Honour went on to say:
“You take your witnesses as you find them; in this case you take the complainant and her mother. You assess their evidence in the light of the fact that there is no corroboration, but you do not have a preconception that because [the complainant] was a child that children are likely to tell lies.”
The learned trial judge then correctly dealt with the question of delay in terms of its effect on the appellant as required by Longman[3] and there is no complaint about that direction which is set out in the reasons for judgment of Muir J. The learned trial judge then said:
[3] per Brennan, Dawson and Toohey JJ, (1989) 168 CLR 79, 91.
“In those circumstances I must warn you accordingly that it is dangerous to convict upon the complainant’s evidence alone unless - and there is two parts to this - you, the jury, after scrutinising her evidence with great care and considering all of the circumstances and bearing in mind this warning which I am now giving you, you are satisfied of the truth and accuracy of the complainant’s evidence. If you are so satisfied then you are able to be satisfied beyond reasonable doubt and convict, but you bear in mind the warning I gave you. You have seen her. You have heard her cross-examined and you are aware now of all the relevant considerations.
Bearing all of that in mind, the question is whether you are satisfied beyond reasonable doubt that she is a witness of truth. If so, you can convict the [appellant] on the counts involving her. If you are not so satisfied then you must acquit him on those counts.” (emphasis added)
His Honour then briefly summed up the evidence constituting each count. He fairly stated the Crown case and the defence case, where he stressed the standard of proof and inconsistencies in the recollections between mother and daughter and internally in those of the daughter. Finally, immediately before inviting the jury to consider their verdict, he stressed, “you must arrive at facts beyond reasonable doubt as proof of each and every element before you can convict, and you assess the evidence using your common sense and bearing in mind the warnings I have given you because of the circumstances of the trial.” (emphasis added) The only application for redirections concerned unrelated matters and were sought by the prosecutor. The application was refused.
Whilst his Honour could have given a more detailed direction as to the difficulties associated with the age of the complainant at the time of the offences, when the summing-up is looked at as a whole, I am satisfied he adequately summed up to the jury on the question of the age of the complainant and delay. The learned trial judge specifically warned the jury of the difficulties in which the appellant was placed because the allegations were brought after 20-30 years. He told the jury to bear in mind the age of the complainant at the time of the offences and pointed out the lack of fresh complainant in respect of counts 1 and 4. The learned trial judge warned the jury that it was dangerous to convict on the uncorroborated testimony of the complainant and specifically told them there was no corroboration in this case. In Longman there was no such warning. His Honour reminded the jury of this warning immediately before they retired to consider their verdict. In those circumstances, there has been no miscarriage of justice creating a real risk that the verdict is unsafe and unsatisfactory.
I have now had the advantage of reading the reasons for judgment of McPherson JA. The complainant’s evidence referred to by McPherson JA was not objected to and was not an issue in the trial. I would not allow the appeal on that account. Nor do I share McPherson JA’s concern about whether the element of indecency was adequately satisfied in respect of count 1. The summing-up was adequate in respect of count 1 and there was evidence to support the verdict, if the evidence of the complainant was accepted. The primary judge told the jury that it was a matter for them whether the conduct was indecent, and that meant whether the appellant’s conduct was “within or outside the ordinary community standards of decency”. I am confident that the jury did understand the difference between an innocent frolic, innocent touching when drying with a towel and an indecent touching. I would not allow the appeal in respect of count 1 on that basis.
McPherson JA has also highlighted concerns in respect of the evidence led by the Crown of alleged sexual conduct between the complainant and the appellant after the commission of the last offence. After carefully reviewing the summing-up, I am, in the end, satisfied the direction on this point given by the judge below was adequate in all the circumstances. Although I have not had the benefit of any argument on this point, on the facts of this case, where there has been no objection to such evidence, the evidence is admissible as evidence of the full relationship between the parties, even if some of that evidence relates to events which occurred after the last offence charged in the indictment. The complainant’s evidence was that improper behaviour occurred regularly until she left home. If this evidence were not given, the jury could be left with a false impression of her account, wondering about the plausibility of the isolated incidents charged and why the last offence in time was the last improper conduct. Indeed, a major point in the defence case as summed up by the primary judge was that if these incidents occurred as regularly as she claimed, why were there no witnesses. The learned trial judge stressed to the jury that it was a matter for them whether they accepted the evidence and that the evidence was only of the alleged relationship between the complainant and the appellant, adding:
“I direct you upon this as a matter of law, if you found on the evidence that there was a continuing history of incidents you cannot use that finding by itself to reason that the [appellant] committed the offences on the indictment, particularly counts 1, 2 and 4. In other words, your duty is to try the [appellant] on the evidence relating to the specific counts, and I will go through that evidence with you shortly. You are not to condemn him for any other moral blemishes that the facts may reveal, nor are you to reason that if he has done it on all these occasions he must have done it on the three in question. That is improper. You must bring in a verdict, if it is to be a verdict of guilty, solely upon the evidence relating to the specific charges in the indictment.”
The learned trial judge’s careful direction to the jury as to the limited use they may make of that evidence was such that, in my view, there has been no error of law or miscarriage of justice warranting the appellant’s success in this appeal.
I would dismiss the appeal against conviction.
I turn now to the appeal against sentence. The applicant is 56 years old and was 27 years at the time of the first offence and 35 or 36 at the time of the last offence, being born on 16 April 1956. He has some prior criminal history for minor dishonesty and traffic offences between 1960 and 1971. He has no prior convictions for similar offences. He was sentenced to two and a half years imprisonment on each count.
The offences commenced when the complainant was only 4 years old. The applicant was the complainant’s stepfather and she looked on him as her father. Count 2 involved a degree of coercion and physical force after the event when the complainant complained to her mother and was intimidated into withdrawing that complaint. The offences occurred over a 9 year period. The applicant cannot get the benefit of a plea of guilty and has shown no remorse. In his favour, it can be said the applicant has not committed any criminal offences since 1971, other than these serious matters. The applicant’s counsel at sentence submitted that a two year sentence was within the range. The sentence imposed by the learned judge below, whilst at the upper end of the range, seems consistent with other comparable sentences to which we have been referred and cannot be said to be outside a sound sentencing discretion. I would refuse the application for leave to appeal against sentence.
I would dismiss the appeal and refuse the application for leave to appeal
against sentence.
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 18 December 1998
The appellant was convicted at his trial in the District Court on three counts numbered 1, 2 and 4 in an indictment charging him with indecent dealing with the complainant, who was his stepdaughter. In one of the grounds of appeal, the appellant complains that the other count in the indictment, which was count 3, ought to have been accorded a separate trial. It charged him with having assaulted the complainant’s mother at or shortly after the incident the subject of count 2. The evidence at trial was that the assault followed from and was said to have been directly related to a complaint made by the complainant to her mother with respect to that matter. Because of this, and also because the jury returned a verdict of acquittal in respect of count 3, it is difficult to identify any prejudice to the appellant arising out of the joinder or trial of that charge with the other counts in the indictment.
Rather than attempt to deal with these and other matters in the abstract, however, it seems preferable to consider them sequentially and in the context of the evidence at the trial. Count 1 charged an act of indecent dealing with the complainant that was alleged to have taken place in 1969. She said she was in the bathtub with her brothers and sisters, when the appellant came in and lifted her out. He took her to her bedroom, stood her on the bed, knelt down and started rubbing his face in her vagina. At the time she had a towel about her shoulders. In cross- examination, it was suggested to her that the appellant had placed her on the bed and was drying her. Her answer was “Oh, I don’t know. I don’t think so. I don’t remember him drying me”. He had rubbed her with “his nose, his face ... backwards and forwards on my vagina”. She claimed to be able to fix the date of this incidence in 1969 because it was shortly before she had accompanied her mother on a visit to the appellant, who was then in gaol. “I didn’t know”, she said, “what year he had been in gaol. I had to find out what year he had been in goal, so I could know what year”. It was her mother whom she had asked. The appellant used to call her his “little princess”, and he called her that on the occasion of her visiting him in gaol. She had responded by telling him “I wasn’t his little princess any more, thinking he was going to stay there”. Asked why she had said that, she said it “was because of what he had done to me ... it wasn’t long after that. It was still in my head. I couldn’t understand what that was”.
The complainant’s evidence on these matters was received without objection from counsel for the defence. There nevertheless seem to me to be several things amiss with it. One of the grounds of appeal is specifically directed to the admission of evidence about the appellant’s being in gaol “for traffic fines”. The appellant was, it seems, a truck driver at the time, and in 1968 and again in 1970 had been imprisoned for non-payment of fines for breaches (apparently for overloading) of the Main Roads Act. In summing up, the learned trial judge adequately directed the jury about his evidence, and did so in such a way as to ensure that the jury were not influenced by those matters in arriving at their verdicts on the counts in the indictment. I therefore do not consider that the disclosure at the trial that the appellant had been imprisoned is a sustainable ground for setting aside the convictions in this case.
The evidence about the complainant’s visit to gaol was adduced by the prosecution in order to elicit from the complainant the means by which she recalled the incident in count 1. There may perhaps be no legitimate cause for complaint about that method of prompting her memory by asking her when it was that the appellant was in gaol. The evidence, even though it was plainly hearsay, was not objected to. What does concern me, however, is the accompanying explanation given by the complainant. She said she told the appellant that she was no longer his princess, and she did so “because of what he had done to me”, which was “still in my head”. There is no suggestion that she expressed that reason out loud to the appellant. If she had done so, it might have amounted to a complaint of sexual misconduct against him. Instead, it went before the jury in the form of a contemporaneous private mental reservation about which the appellant, even if he had given evidence at the trial, would have been unable to deal. Her evidence to that effect was at best a self-serving statement, which was not admissible in evidence against the appellant.
There is, in my respectful opinion, another reason for concern about the incident the subject of count 1, which is in part pursued in the appellant’s written complaint in this Court, namely, that in the summing up no reference was made to the fact that she was taken from the bath with a towel around her. It is to my mind open to serious question whether the incident as described by the complainant could fairly be described as “indecent”. He is said to have rubbed his face up and down her vagina. At the time, she was only four years old, having been born on 26 May 1965. With a child of that age, it is by no means impossible that what is alleged to have been done by the appellant was little more than a piece of innocent fun. The trial judge correctly directed the jury that the question whether or not the conduct was “within or outside the ordinary community standards of decency” was a matter for them. In doing so, however, he linked together all three incidents in counts 1, 2 and 4. To my mind, the character of the acts were sufficiently different to require that the status of the act charged in count 1 be dealt with separately in this context. At the age of four, the complainant was scarcely in a position herself to make an assessment of what was and was not indecent. There is a danger that, after hearing the complainant’s evidence about counts 2 and 4 (which, if otherwise established to their satisfaction, were plainly indecent) the jury might retrospectively have concluded that the appellant’s act charged in count 1 was also indecent; or, in other words, that the obvious indecency of the later two acts charged would have tended to infect the attitude of the jury in arriving at their verdict on count 1. They should, in my respectful opinion, have been warned against that danger by directing them specifically to consider whether the action of the appellant alleged to constitute count 1 was itself indecent. In my view, there was and there is a sufficient degree of ambiguity about the indecency or otherwise of that act to justify allowing the appeal against it, setting aside the verdict, and entering a judgment of acquittal in favour of the appellant on count 1.
The charge in count 2 related to an occasion some two years later when the complainant was six years old. Her mother went out one evening to a jewellery party. The other children were sent to bed, leaving the complainant with the appellant in the lounge watching television. He was in his pyjamas, and produced his erect penis, put her hand around it, and began moving it up and down. Suddenly the complainant’s mother returned home. There was what she (the mother) described in her evidence as a “scuffle”, and she noticed the appellant quickly pick up the newspaper, which she then noticed he was reading or holding upside down.
It was after this that the complainant went to her mother and complained about what had happened. In her statements to the police, the mother became confused about whether the complainant had said that the appellant had made her hold his penis, or had put his fingers down her pants and touched her vagina. The complainant herself said her complaint to her mother was of being made to hold the appellant’s penis. When on the night of that incident the complainant’s mother relayed the complaint to the appellant, he assaulted her. This was the subject of count 3, of which the appellant was acquitted. The complainant said, however, that he had afterwards come to her bedroom, to which she had then gone, pulled her out by her hair and dragged her before her mother shouting “Tell her the truth, tell her the truth”. In consequence, the complainant told her mother that she had been lying earlier when she had complained to her about what had happened.
As regards the charge in count 2, which was alleged to have taken place between 1971 and 1973, there was clear evidence on which the jury were entitled to act in finding the appellant guilty. The trial judge correctly summed up to them in terms of Longman v. The Queen (1989) 168 C.L.R. 79, 91, by explaining the difficulties confronting a person in the position of the appellant, who is faced with a charge of this kind that is brought against him so long after the event. In this instance, some 26 years or more had elapsed since the date of the offence alleged in count 2. A specific direction in terms of Longman was plainly called for. On the other hand, I am, unlike Muir J., by no means persuaded that a specific warning about the frailties of human recollection was also required in the circumstances of this case. The delay in prosecuting was lengthy and the complainant was only a child of six at the time of the incident alleged; but, even without a specific warning to that effect, the jury could hardly have overlooked either of these features of the prosecution case. In addition, the complainant’s evidence on count 2, particularly her complaint to her mother at the time, was supported in some material particulars by the mother’s testimony at the trial, notably her observation of the scuffle and her recollection of the newspaper being upside down. Subject to what follows, there is, to my mind, no valid reason for interfering with the verdict of guilty on count 2.
What follows is count 4. It alleged an occasion on which the appellant came to the complainant in the middle of the night or early hours of the morning, and rubbed her breast and her vagina. The offence was charged as having taken place during a specific period of six months between 31 December 1977 and 30 June 1978. She was then about 13 years old, and was able to place the occasion by reference to her having started high school. At that time the bedroom was so crowded with children that she had begun sleeping in the lounge. There was independent evidence from the complainant’s mother that the appellant often got up at night, and left the matrimonial bedroom to go to the kitchen for something to eat. To that extent at least, opportunity was proved for doing what was alleged against him.
In respect of this incident in count 4, it was again plainly open to the jury to accept the complainant’s testimony. The appellant elected not to give evidence, so that what she and her mother said at the trial went to the jury uncontradicted. There would be no difficulty in sustaining the verdict on count 4 were it not for some of the other evidence admitted at trial. The first is that, having taken the complainant through her evidence about count 1 and her visit to the gaol in 1969, counsel for the prosecution proceeded to examine the complainant in the following terms:
“After that - I’m asking you a general question now - after that were there any other incidents of sexual interference ? --- It never stopped. Every night.
Can you describe, again in a general way, the conduct that he undertook ? --- What he would do is it would be late - it would be probably early hours of the morning, and I would wake to him always touching me, always with his hands on my vagina, my chest at that stage, just all the time, always there”.
After eliciting her evidence on count 4 and count 2, the complainant’s attention was brought back to count 4; and she was asked about the bathroom in the house where the family lived. She explained that the shower recess door was broken, and that the appellant “would come in all the time and pretend he’s going through the dirty washing and just watch me in the shower”. In addition, on an occasion when for about a year the family were living at Mutdapilly, he walked into her room while she was undressing and told her to turn around and show him her body, which was something he said that all fathers did as they watched their girls grow up. She was 15 then, and she left home shortly afterwards. The appellant’s visits to her room, and the touching on the breast or chest continued, she said, until she was 15 years old, “until I could get out of there”. From Mutdapilly onwards, “it wasn’t continuous, it wasn’t every night”, or all the time, but only once or twice a week.
It is not easy to see the relevance of much or any of this evidence to the charge in count 4 and, even less, to either of the other two charges. What happened when the complainant was 14 or 15, which was after the incident charged as count 2, seems, on any view of it, to be quite incapable of establishing that he indecently dealt with her two years earlier when she was 13 years old. That observation applies not only to the later indecent dealings alleged to have taken place “from Mutdapilly onwards”, but also to the occasion while they were living there and he entered her room when she was undressed or undressing. The practice of the appellant in watching her in the shower also appears to have been ascribed to an occasion before she went to high school, and inferentially before the incident constituting the subject of count 4. It is of a character with her other evidence, to which reference has already been made, that the appellant’s acts of touching the complainant on the chest and vagina happened “every night”. The date or time when this conduct first started is not identified with precision, but the complainant’s evidence about it was given in answer to the “general” question whether “after that” (meaning her visit to the gaol in 1969) there were “any other incidents of a sexual nature”.
The result is that a great deal of evidence about improper sexual conduct on the part of the appellant was given at the trial which had no direct relevance to proof of any of the three specific counts of indecent dealing charged against the appellant as having been committed when the complainant was respectively 4, 6 and 13 years old. One suspects that the evidence was let in without objection because counsel have grown accustomed to it in charges based on s.229B of the Criminal Code of maintaining a relationship of a sexual nature; but that offence did not exist at the time the three specific offences charged in counts 1, 2 and 4 are alleged to have been committed, which is no doubt why they were charged in that specific form in the indictment. However that may be, the evidence was given without any objection by counsel for the defendant at trial, leaving the trial judge with the rather unenviable task of explaining its relevance and utility to the jury. What his Honour said on the matter was:
“Now, in approaching this evidence you must, firstly, keep to the front of your minds that the accused is being tried only upon the counts in the indictment. It is upon the specific evidence in respect to each of those offences by the complainant upon which you must base your verdict.
This background evidence, for want of a better term, of the other incidents is led by the Crown to show - if you accept it, and that is a matter for you - the nature of the relationship between the accused and the complainant. This allows you, it is thought, to understand the context of the incidents which are the subject of the charges, that is, to help you to understand the relationship between the complainant and the accused in full, rather than to be confronted with three distinct and separate incidents such that one occurred when she was four years old, one at six and another one when she was 13 years old. You may, in absence of other background, find that a difficult proposition to accept. So the relationship evidence is simply to put in context - again I stress if you accept it - the relationship that existed between them.
Now, what you must keep in mind, and I direct you upon this as a matter of law, if you found on the evidence that there was a continuing history of incidents you cannot use that finding by itself to reason that the accused committed the offences on the indictment, particularly counts 1, 2 and 4. In other words, your duty is to try the accused on the evidence relating to the specific counts, and I will go through that evidence with you shortly. You are not to condemn him for any other moral blemishes that the facts may reveal, nor are you to reason that if he has done it on all these occasions he must have done it on the three in question. That is improper. You must bring in a verdict, if it is to be a verdict of guilty, solely upon the evidence relating to the specific charges in the indictment.”
Having read the reasons for judgment of the High Court in Gipp v. The Queen (1998) 72 A.L.J.R. 1012, I am by no means confident that all of their Honours in that case considered that evidence of that character would have been admissible either at all or in support of specific charges of indecent dealing like those against the appellant here. As in this case, so in Gipp counsel did not object to the admission of the evidence. Gaudron J. nevertheless said that “General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as ‘similar fact’ or ‘propensity’ evidence ... Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible” (72 A.L.J.R. 1012, 1015 col.2A-B). Kirby J. considered it had “a clear potential to prejudice the fair trial of the appellant” (72 A.L.J.R. 1012, 1034 col.1E). McHugh and Hayne JJ. considered that the jury had been correctly directed that “the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges” (72 A.L.J.R. 1012, 1027 col.2 B-C). That conforms approximately to the way in which the jury were directed in the trial of the appellant in this instance. Callinan J., however, expressly rejected “the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case ...”. His Honour nevertheless went on to add that, in his opinion, the evidence about the way in which the appellant approached the complainant, what he told her, and how he abused her over the years “were all acts sufficiently similar to warrant the introduction of evidence of them” (72 A.L.J.R. 1012, 1048 col.2 D-E, F).
From the standpoint of its admissibility the precise status of the comparable evidence admitted in the present case, and the use it was said could be made of it, is therefore not at all easy to determine. In this appeal, in which the appellant appeared in person and the decision in Gipp v. The Queen was not cited to us, it seems to me to be undesirable for this Court to venture an opinion on a subject which was not analysed in the submissions before us. In view of that, I will confine my attention to the evidence given by the complainant concerning the matters which she testified had happened after the incident when she was 13 years old, which was the subject of the final and specific charge in count 4. By this I mean the occasion on which the appellant asked to look at her naked in the bedroom as Mutdapilly, as well as the midnight touching which she said had continued, although with less frequency, during the 12 month period they were living at that place and until she left home at the age of 15. On no view of the case against the appellant can the evidence on those matters be considered probative of the charges against him on counts 1, 2 and 4. It was, however, potentially extremely prejudicial to the fair trial of those three specific charges against him. It follows, in my opinion, that it cannot have failed to affect his prospects of acquittal on each of those three charges.
I would therefore allow the appeal against conviction on counts 1, 2 and 4 and set aside the verdicts and convictions on those counts. In respect of counts 2 and 4, I would order a new trial. For the reasons given earlier, I would enter judgment of acquittal in respect of the charge in count 1.
REASONS FOR JUDGMENT - MUIR J. Judgment delivered 18 December 1998
| 1 | The appellant was convicted in the District Court on 8 July 1998 of 3 counts of indecent dealing. The complainant in each case was the appellant's stepdaughter. |
The subject offences and the circumstances surrounding them are as follows. Count 1, that between 31 December 1968 and 1 January 1970, the appellant unlawfully and indecently dealt with the complainant, a girl under the age of 12 years.
The complainant's evidence was to the effect that when she was about 4 years old, the appellant took her out of a bathtub in which she was bathing with her brothers and sisters, stood her on her bed knelt down and “started rubbing his face into my vagina”. The complainant said that she had a towel over her shoulders at the time. She said that “... this was the first encounter I had had of the sexual abuse, and I was just very scared and very confused”. She later described the appellant's actions as, “just rubbing backwards and forwards on my vagina”.
Count 2, that on date unknown between 1 May 1971 and 1 January 1973 the appellant unlawfully and indecently dealt with the complainant, a girl under the age of 12 years. The complainant, who was born on 26 May 1965, gave evidence of an occasion on which she was in the lounge room of the family home at Goodna alone with the appellant. Her mother had gone out and the other children had gone to bed. The complainant was then about four years of age. She swore that the appellant had placed her hand on his erect penis and started moving it up and down. On hearing the complainant's mother's foot steps on the cement path outside, the appellant, according to the complainant, “... chucked my hand away and he told me to get straight back down onto the floor, and I did that”. The complainant said that she made a complaint to her mother in the kitchen within minutes of the incident. She was told to go to bed and that her mother would talk to the appellant about it. Shortly afterwards the appellant came storming into the bedroom screaming out “tell her the truth. Tell her the truth.” The appellant said that she was overborne and said (falsely) to her mother that she was lying.
The complainant's mother gave evidence of this incident. She said that when she walked into the lounge -
“... there was a bit of a scuffle, and N (the appellant) picked up the paper ... and he made out he was reading (it) ... I could see the paper was upside down.”
She said that the complainant had come to her in the kitchen and “... said that he had his hand down her pants”. When she confronted the appellant she said that he grabbed her by the throat, threw her down and said “don't ever accuse me of interfering with the girls”. She swore that she heard the appellant say to the complainant “go and tell your mother the truth”. The complainant was crying and came out and told her that she was lying. The complainant's
mother gave no evidence directly concerning counts 1 or 3.
Count 4, that on a date unknown between 31 December 1977 and 30 June 1978 the appellant unlawfully and indecently dealt with the complainant, a girl under the age of 14 years.
The complainant swore that when she was 13 years of age, in her first year of high school, she was sleeping in the lounge when she awoke feeling the accused rubbing her breast and vagina. She said that her underwear was down and her top was up “... it just stuck in my mind that there was a burning sensation, but ... it wasn't a penetration or anything”. The complainant said that the nocturnal visits of this nature occurred every night at around this time, decreasing to once or twice a week as she grew older.
The appellant was acquitted on Count 3, that on a date unknown between 1 May 1971 and 1 January 1973, he unlawfully assaulted the complainant's mother. The time and place of the offence were the same as that alleged in count 2.
There was no evidence given by any witnesses on behalf of the Crown concerning the circumstances in which the complainant came to make her complaints to the authorities. The appellant did not give evidence or call any witnesses on his behalf.
The appellant, who appeared for himself, made the following submissions which were relevant to his appeal against conviction -
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It is the case that the learned trial judge made no mention of the towel or of the possibility that the appellant was getting the complainant ready for bed. This omission, in my view, does not result in a conclusion that there was a misdirection. A trial judge is not obliged to mention every piece of evidence and, having regard to the brevity of the evidence, the evidence of the complainant would have been fresh in the minds of jurors when deliberating.
As for the discrepancy in the accounts of the complainant and her mother in relation to ground 2, the learned trial judge did say when summing-up the contentions of counsel for the defence -
“He spoke to you of the inconsistencies in the recollections, both between mother and daughter and internally in the daughter: for example, grade 1/grade 2.”
As for the third ground relied on by the appellant, the learned trial judge's reference to the facts relevant to count 4 were very brief. He quoted the essence of what the complainant said in her evidence-in-chief. She also said in evidence-in-chief, as I have earlier described, that she felt “a burning sensation” but that there was no penetration. In cross-examination she said that she could feel him touching her clitoris inside her vulva. The point seems to be that there was a discrepancy between the evidence-in-chief of no penetration and this later evidence and that these are matters which should have been referred to in the summing-up. I do not consider that there is much substance in this point either. It is plain from the complainant's answers in cross-examination that she did not regard the touching of the clitoris as constituting penetration, and it was not put to her that her evidence in cross-examination was inconsistent with her evidence-in-chief.
However, there is a matter not raised by the appellant which does give rise to serious concern. It is the treatment in the summing-up of the bearing, if any, which the age of the complainant at the time of the alleged offences and the length of time between those offences and the bringing of charges against the accused, has on the reliability of the complainant’s evidence.
The relevant passage in the summing-up is as follows -
“Before I leave that, there are two other things. One is that you should bear in mind the age of the complainant at the time of the offences and, secondly, whilst it is important to appreciate that there is no corroboration what you do not do and should not do is to make an assumption such as young children tend to tell lies about sexual matters and, therefore, there can be no conviction without corroboration. That is a totally incorrect piece of reasoning.
It should not be said that there are classes of persons in our society who are less worthy of credit than others. You take your witnesses as you find them; in this case you take the complainant and her mother. You assess their evidence in the light of the fact that there is no corroboration, but you do not have a preconception that because F was a child that children are likely to tell lies.
The final matter which you should bear in mind in assessing the evidence is the delay, the delay itself, because that delay has consequences. It has consequences on the trial which you have sat in and the way in which it was able to be litigated. A real consequence is that after 20 or 30 years have passed the accused is disadvantaged by not being able to test the complainant's allegations in a way which he could, perhaps, have done had they been brought to the notice of the police shortly after they were said to have occurred. Thus in the early 80s the accused may have been able to adduce evidence casting doubt upon the complainant's account. Because of delay his chance of doing that is reduced.
In those circumstances I must warn you accordingly that it is dangerous to convict upon the complainant's evidence alone unless - and there is two parts to this - you, the jury, after scrutinising her evidence with great care and considering all of the circumstances and bearing in mind this warning which I am now giving you, you are satisfied of the truth and accuracy of the complainant's evidence. If you are so satisfied then you are able to be satisfied beyond reasonable doubt and convict, but you bear in mind the warning I gave you. You have seen her. You have heard her cross-examined and you are aware now of all the relevant considerations.”
The part of the above extract, which is reproduced in italics for convenience of reference, is obviously based on the observations of Brennan, Dawson and Toohey JJ in Longman v. The Queen (1989) 168 CLR 79 at 91. That part of the summing-up, coupled with the following paragraph, adequately meets the concerns expressed in the joint judgment in Longman at p.91. The passage in italics, although appropriate insofar as it goes, focuses on one aspect of delay only, that is, the way in which it places an accused person at a disadvantage.
Such emphasis created a risk that the jury would be distracted from considering another important aspect of delay, namely the possibility of error in the complainant's recollection, having regard to her youth at the time of the offence the subject of counts 1 and 2. The following observations of McHugh J in Longman (supra) at 107-108 have a general bearing on the type of problem under consideration -
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev. ed. (1964), pp. 269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.”
It is true that the passage from the learned trial judge's summing-up commences with a caution that the jury “should bear in mind the age of the complainant at the time of the offences”. However, his Honour then went on to give a direction, no doubt with a view to giving effect to s.632 of the Criminal Code, to the effect that no class of persons should be treated as less credit worthy than persons not within that class and there should be no preconception that because the complainant was a child she was likely to tell lies. The complainant was some 33 years of age at the time of the trial. Perhaps the comments were meant to be limited to the evidence of what the complainant had said to her mother at the time of the events the subject of count 2. But, putting aside the possibility of confusion in the minds of the jurors as a result of this comment, it seems to me that the reference to all witnesses being treated equally; the mention of the need not to have any preconception that children are likely to tell lies and the limited explanation of the consequences of delay may well have caused the jury to fail to give proper consideration to the question of whether, notwithstanding that the complainant was a truthful witness in the sense that she believed what she said, her evidence might nevertheless provide an inadequate foundation for a finding that the appellant's guilt had been proved beyond reasonable doubt: cf., the reasons of Deane J in Longman (supra) at 102. After all, the complainant was giving evidence, for the most part, of events which allegedly occurred more than 20 years ago when she was no older than 6 years of age.
To my mind, a warning to the jury in terms of the last paragraph of the passage from the summing-up quoted above was not, in the circumstances I have outlined, sufficient to compensate for the difficulties I have identified. This is particularly so when regard is had to the lack of any corroboration or support for the complainant's evidence in relation to counts 1 and 4; the discrepancy between the complainant's and her mother's account in relation to count 2; the jury's rejection of the complainant's mother's account in relation to count 3; the age of the complainant at the time of the events the subject of counts 1 and 2 and the nature of the acts the subject of count 1. Those acts are identified in paragraph 4 above. When regard is had to them, it will be apparent that they are somewhat ambiguous in nature. A conclusion that they had a sexual connotation was open to the jury but it is also clear that such acts are capable of innocent explanation. To a considerable degree the subject acts derive their sexual connotation from the perception of the complainant who, at the relevant time, was four years of age. Her capacity to categorise such acts as aberrant and to retain a reliable recollection of them for almost 30 years may be thought questionable.
| 19 | The difficulties with the summing-up which I have identified are of rather of less moment in relation to count 4. The complainant was then 13 years of age. But, of course, there was still some 20 years between the events in question and the trial. |
I am conscious of the need to avoid the imposition of unnecessary constraints on a trial judge's summing-up. It, of course, is fashioned in the light of the evidence considered by the trial judge and placed before the jury. Matters which might be thought to have a particular significance, if regarded in the abstract, may assume greater or lesser significance in the light of perceptions acquired from seeing and hearing witnesses. In this case, for example, the complainant may have been an extremely plausible witness and the accused may have created a distinctly unfavourable impression. In those circumstances, a summing-up which addressed the matters to which I have adverted in a manner favourable to the appellant may well have had no effect on the outcome of the trial. It can be expected that the trial judge framed his summing-up influenced by considerations of that nature. In my view though, particular care on the part of a trial judge is called for in summing-up to the jury in relation to the evidence of a complainant (whether male or female) in a case concerning sexual offences alleged to have been committed in respect of a very young complainant many years prior to the trial. The summing-up here failed to counter-balance the effect of the limited scope of the directions in respect of delay coupled with the direction as to the credit worthiness of the complainant: cf. Crofts v. R (1996) 186 C.L.R. 427 per Dawson J. at 436.
In my view, the matters which I have identified as deficiencies in the summing-up make conviction unsafe and unsatisfactory.
I would allow the appeal against conviction on counts 1, 2 and 4. Having regard to the reasons of McPherson JA in relation to count 1, with which I am in general agreement, I would enter judgment of acquittal in respect of that count. I would order a new trial in respect of counts 2 and 4.
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