R v PAF

[2007] QCA 414

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAF [2007] QCA 414

PARTIES:

R
v
PAF
(appellant)

FILE NO/S:

CA No 205 of 2006
DC No 310 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2007

JUDGES:

de Jersey CJ, Jerrard JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Convictions set aside
3. New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – ADMISSIONS BY CROWN WITNESS THAT EVIDENCE FALSE – where the appellant was convicted, after a jury trial, of two counts of incest against his daughter – where the appellant appeals against his conviction on the basis that fresh evidence has come to light – whether the jury, acting reasonably, could have acquitted the appellant had the fresh evidence been before the court

Craig v The King (1933) 49 CLR 429, considered
Gallagher v The Queen (1986) 160 CLR 392, considered

COUNSEL:

M J Byrne QC for the appellant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by Her Honour, and with her reasons.

1. JERRARD JA:  I agree with the reasons and orders proposed by Holmes JA.

1. HOLMES JA:  In May 2006, the appellant was convicted, after a jury trial, of two counts of incest against his daughter, P. He appeals against his conviction on the basis that fresh evidence has come to light, in the form of a recantation by the complainant of her allegations against him, which, had it been before the jury at the trial would have raised a real prospect of acquittal.  The Crown did not contend that the evidence was not fresh or relevant, but rather that it was not cogent or plausible, qualities which it must possess for a miscarriage of a justice to be demonstrated.[1]

   [1]Craig v The King (1933) 49 CLR 429 at 439.

1. The events giving rise to the charges (and others, of which the appellant was acquitted) were said to have occurred between February and September 2003, when P was 15.  XY, who had befriended the appellant and his fiancée, MW, gave evidence that on 16 September of that year, P confided to him that her father had had sex with her.  That resulted in the police being informed.  P was interviewed on 29 September and said that she had engaged in sexual encounters with her father at his insistence on a number of occasions.  On some of those occasions she was required to perform fellatio on her father in his car while it was parked on a dirt track near a river.  On those occasions he would wipe his ejaculate onto a rag and throw it out the window.  She recalled a specific instance, the subject of one of the convictions, in which she had sex with him at that location, she sitting on the bonnet of the car and he in front of her.  On another occasion, she said, she had sex with her father in the main bedroom of the house in which he and his fiancée lived.  That instance had begun with their watching pornographic videos; her father then made her perform fellatio on him, used his fiancée’s vibrator on her, and then had sex with her.

1. P had clearly given some details to the police before that interview. A few days before it, she went with a police officer to the track she described. In the area where P said her father parked the car, they found a rag, which proved to have the appellant’s semen on it.  On a search of the appellant’s bedroom, the police found a vibrator and pornographic videos.

1. When the complainant’s evidence was pre-recorded for the trial, it was suggested to her in cross-examination that she had made the allegations against her father because he had threatened to send her back to South Australia.  She agreed that he had made the threat, and that she did not want to return to South Australia, but denied making the allegations to prevent that happening.  She also agreed that XY had told her that without “real hard evidence” they could not prove anything. (XY also conceded in his evidence at the trial that he had said something to that effect.)  P denied having placed the rag near the track where it would later be found by the police.  She was now living with XY as “his friend and sort of carer”.  She admitted to some past instances of having made false complaints to the police, the most serious of which was that her uncle had had sex with her. She said she had made that complaint because her father, fearing he had made her pregnant, told her to say that it was her uncle.

1. The appellant gave evidence at his trial.  He denied any sexual activity with his daughter.  He said that he was in the habit of wiping himself with a rag after masturbating.  It was possible that such a rag might be in his car if it were used while he was working on the vehicle.  He could not explain how the rag with his semen on it had ended at the site near the river although it might somehow have got kicked out of his car there.  He owned pornographic videos, but he had never watched them with his daughter and he had never used his partner’s vibrator on her.

1. The alleged recantation of P’s evidence came about in this way: according to the appellant’s fiancée, MW, and her carer, SS, (MW suffers from a disability) they were at MW’s home on 10 January 2007 when P, whom MW had not seen for some two years, came unexpectedly to the house and asked to speak to her father.  When P was reminded that the appellant was serving a long sentence in respect of the incest convictions, she was distressed. MW and SS said that they saw bruises on P’s arm. She told them XY, to whom she thought she might be pregnant, had punched her.  While P was at the house, the appellant telephoned twice from jail. After the first of those calls, P told MW and SS that she had lied about her father.  Nothing had happened between them. 

1. MW contacted a Mr Nesbitt, who had been undertaking work towards a parole application for the appellant.  Mr Nesbitt gave evidence that he questioned P in some detail as to whether the allegations she had made against her father were true. She said they were not; that she had made them because her boyfriend, X, (she referred to XY’s given name) had said that it was the only way they could be together.  Mr Nesbitt advised MW to take P to a motel for the night, to keep her safe from XY. P went home to collect her medication, returned, and she and MW went to a motel. At about 12.30 am XY arrived, and P left with him. Under cross-examination, Mr Nesbitt conceded that he might, after P’s departure with XY, have sent certain text messages to their mobile telephones threatening that XY would be charged with offences.

1. P denied recanting her allegations against her father.  She said that she had simply visited MW to see if she still had the dog P owned in 2003; that while she was there her father had telephoned from jail; and after that MW had asked her to speak to a man called Peter.  Peter claimed to be her father’s solicitor and asked her to “change her statement” so that her father could be got out of jail. He asked repeatedly if she was lying about her father, while MW in the background urged her to say that she was.  She maintained she had told the truth, but after his repeated questions and MW’s insistence that she needed to say it was all a lie, she agreed, to stop their importuning, that she had lied. 

1. Although she was annoyed by their demands, after fetching her medication, P went to the motel with MW, the plan being to travel to Brisbane the next day for the making of a new statement.  While they were there, MW continued to say that she, P, had to make a statement saying that she had lied. She asked P to speak again by telephone to Peter, who told her she had to come “down here” to give a statement.  Finally, P sent a text message to XY and asked him to collect her. (XY had not caused the bruises she had on her arm.) After he did so she received two text messages on her mobile phone, the first saying that XY would be charged, and the second that MW was waiting for her at the motel.  The following day she and XY went to a police station and reported what had happened.  P maintained that what she had originally said about her father having sex with her was the truth.

1. XY, who was 41 years old, said that he and P had been “a couple” for about a year. He was not responsible for her bruises. He had responded to a text message from P on the night in question and collected her from the motel.  He had received telephone calls shortly after from a man purporting to be the appellant’s or MW’s solicitor, who threatened him with jail if he did not give a statement, and then text messages to the effect that because he had not co-operated he would be charged and sent to jail.

1. The test for whether fresh evidence warrants appellate intervention has received various formulations, one of which is “whether the court considers there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”[2]

   [2]Gallagher v The Queen (1986) 160 CLR 392 at 399; Mickelberg v The Queen (1989) 167 CLR 259 at 273.

1. Essentially the difference between the versions is that while P recanted her allegations, she said she did so under pressure, while the appellant’s witnesses say the recantation was freely volunteered to MW and SS, and maintained to Mr Nesbitt. It is not possible to resolve that conflict in these proceedings. There were questions raised about the credibility of the three witnesses called for the appellant, but they were not of such proportions as to impair significantly the cogency or plausibility of the evidence. The case at trial depended almost entirely on P’s evidence; the corroborative evidence in the form of the rag found on the track was not unimpeachable.  The reason P allegedly gave to Mr Nesbitt for making false allegations against her father (that her boyfriend, X, had said it was the only way they could be together) has some plausibility, taken in the context of the evidence at the trial and the subsequent revelation of a relationship between them.

1. The fresh evidence, had it been before the jury, would have raised a significant possibility that it, acting reasonably, would have acquitted the appellant.

1. The appeal should be allowed, the convictions set aside and a new trial ordered.