R v S
[1996] QCA 181
•4/06/1996
| IN THE COURT OF APPEAL | [1996] QCA 181 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 271 of 1995.
Brisbane
[R v. S]
T H E Q U E E N
v.
S
Appellant
_____________________________________________________________________
Macrossan C.J.
Pincus J.A.Lee J.
_____________________________________________________________________
Judgment delivered 04/06/1996
Separate Reasons for Judgment of Macrossan C.J. and Pincus J.A. agreeing as to the
orders to be made; separate dissenting reasons of Lee J.
_____________________________________________________________________
APPEAL ALLOWED ONLY TO THE EXTENT OF SETTING ASIDE THE VERDICT OF
UNLAWFUL CARNAL KNOWLEDGE ON COUNT 3. ORDER A VERDICT OF
ACQUITTAL ON COUNT 3 (NO NEW TRIAL).
_____________________________________________________________________
CATCHWORDS: CRIMINAL LAW - SEXUAL OFFENCES - Whether unsafe and unsatisfactory - whether summing-up to be considered with the evidence - discrepancy between dates alleged on indictment and evidence given by complainant - whether complainant credible when alleging "hundreds" of sexual encounters not otherwise discovered - two offences committed 20 and 17 years before trial - no complaint to police until 20 years after acts commenced - whether jury entitled to convict.
CRIMINAL LAW - CORROBORATION - whether evidence of
lawful sexual relationship is capable of showing "guilty
passion" or corroborating an alleged unlawful sexual act in
the distant past.
CRIMINAL LAW - SUMMING-UP - whether trial judge’s
directions on corroboration and discrepancy in dates was
adequate - whether miscarriage of justice.
| Counsel: | Mr T Carmody for the appellant. Mr B Byrne QC for the respondent. |
| Solicitors: | Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent. |
| Hearing date: | 11 October 1995. |
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 04/06/1996
The facts and issues arising for consideration are sufficiently stated by Pincus JA and Lee J and in these further reasons undue repetition can be avoided.
I agree with the conclusions at which Pincus JA has arrived, that is that the appeal against the conviction of rape must be rejected but, for the reasons which he gives, that the conviction for unlawful carnal knowledge should be set aside.
In adding the following observations in respect of the rape conviction I am able to indicate my general agreement with the reasons stated by Pincus JA on that aspect.
Since the ground of appeal is that the verdicts are unsafe and unsatisfactory, the Appeal Court is obliged to make its independent assessment of the evidence in deciding whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. The advantages enjoyed by the jury in fact-finding have to be kept in mind. Considerations which are relevant on appellate review when this particular ground of appeal is taken appear in M v. The Queen (1994) 181 C.L.R. 487 and the cases referred to in that decision.
An extremely important matter for the jury's consideration must have been the impression that the complainant made upon them when she gave her evidence. Notwithstanding the objections which have now been made challenging the credibility of her evidence, a perusal of the record does not lead to the conclusion that a reasonable jury could not have accepted her.
It was an unusual story that the complainant told referring as it did to undetected sexual activity taking place between her uncle and herself over many years in the distant past. However, in her evidence she confronted the doubts that might be thought to arise concerning the acceptability of her version and gave a full explanation of the course of the relationship in a way that it was open to the jury to accept.
When first considered it might seem strange that there had been sexual intimacy on "hundreds" of occasions within the restricted confines of the household over a long period but without discovery by others or any complaint by her. There was no complaint taken to the police until some twenty years after the acts of sexual interference allegedly commenced. Nevertheless, it is not incredible that the complainant, as a young girl, may have been wary of her mother's anger so that this was a particular reason for her reticence. There was a strangeness too about her claim of the sexual relationship maintained over the years to which she referred with the extent of sexual penetration continuing in so limited a way, but her impression that this occurred was clearly stated by her and the jury had a full opportunity to consider the acceptability of her evidence.
There was also the feature that at one stage in the relationship she said she used actually seek out the appellant resorting to him for affection, "cuddles" as she called it, in effect, accepting the accompanying deeper sexual intimacies as the price she paid. One possible view of her overall picture of events is that whatever might be thought of the level of her consent to the sexual activity in the later stages of their relationship, it had distinctly non- consensual origins.
The appellant chose to give no evidence at the trial and therefore the complainant's account was not opposed by sworn direct evidence.
The appellant's statement to the police in interview, while denying the earlier actions alleged against him, admitted that he had sexual intercourse with the complainant after she reached the age of sixteen. This, and certain other evidence pointing to the existence of a sexual relationship, may have aided the jury in coming to a conclusion that the complainant's evidence should be accepted. Some of the circumstantial evidence, if its ingredients are separately considered, may not be weighty but, taken together, these items of evidence contribute to rather than take from the acceptability of the complainant's account. There was the earlier episode which the complainant's mother observed, the further observation of sexual activity which the complainant's brother spoke of, and the desire which the appellant formed to marry the complainant combined with the admission, already referred to, of the fact of intercourse after she was sixteen years of age.
The trial Judge allowed some only of the evidence referred to, namely the claimed observation by the complainant's brother, to be considered by the jury as possible corroboration and he issued what amounted to careful warnings restricting the basis on which they should regard themselves as free to accept it and he assisted their consideration of it. No objection was made at the trial to this part of the Judge's summing up. The fact that the occasion of the brother's observation may not have been one of the two occasions remaining for the jury's consideration did not have the result that it was incapable of being relied on as corroboration: cf. the discussion in R v. Sakail [1993] 1 Qd.R 312, especially at 316-317. If the evidence was accepted it assisted in illuminating the nature of the relationship between the appellant and the complainant.
It has not been shown that the guilty verdict on the first count is unsafe. The appeal should be disposed of as Pincus JA suggests.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 04/06/1996
The appellant was convicted of having raped his niece and having had unlawful carnal knowledge of her. He appeals against both convictions on the ground that they are "unsound and should be set aside on the grounds of inconsistency, improbability, and uncertainty".
Approaching the appellant’s complaints broadly, it seems to me impossible to hold that the jury could not reasonably have been satisfied that the appellant had sexual intercourse with the complainant, as she alleged, on numerous occasions from the time when she was 9 years of age until when she was 15. That conclusion, which necessarily depends on an impression gained from studying the record, and particularly the evidence of the complainant and her mother M, is assisted by two factors which are by no means always found in cases of this sort. The first is that it is quite clear that the appellant had sexual feelings towards his niece, the complainant. She gave evidence that he asked her to marry him when she was 15; that was not challenged in cross- examination, nor in the appellant’s discussions with the police about the point - except, as to the latter, that the appellant said that as far as he could remember this happened when the complainant was 16. The appellant said that he had sexual intercourse with her after she turned 16. Secondly, not only was there no sworn denial of the complainant’s accusations, but when they were put to the appellant by the police he did not unequivocally deny them; as to some of the allegations of sexual interference, he claimed lack of recollection.
But the appellant was not charged with an offence of maintaining an unlawful relationship of a sexual nature, under s. 229B of the Code; that provision was not enacted until well after the events in question occurred. Hence, the broad view of the matter which I have mentioned above is insufficient to sustain the convictions if it does not appear that the two specific allegations in the indictment on which the convictions were based were properly made out; as to that, there is a difficulty with respect to the verdict of unlawful carnal knowledge, discussed in the reasons of Lee J which I have read.
The argument for the appellant raises 11 criticisms of the Crown case, two of which have a familiar ring: that there was no fresh complaint, and that there was a considerable delay between the dates of the alleged offences and the date when they were brought to the attention of the police. As to the former, the explanation given, that the complainant did not wish to face her mother’s anger, depends for its credibility in part upon the jury’s assessment of the relationship between mother and daughter, and of the mother’s personality. Of course, the jury had an advantage over this Court, in seeing and hearing both of them. But even the printed record gives some support to the notion that M is a person whom the complainant, as a child, might well have found formidable and one who might have reacted harshly, even violently, to a complaint about the matters which were agitated in Court; see p. 56 line 50. As to the delay in complaining to the police, it is impossible for this Court to shut its eyes to the fact that long delays in these matters seem to be quite common; we have had cases in this Court where complaints after many years have been admitted to be true by the person complained against.
The complainant’s evidence was that when she was 15 she told her mother what had been happening. Her mother M said in effect that she found her brother (the appellant) and the complainant cuddling in the appellant’s bed once when he "would have been no more than 16" and remonstrated with him; according to answers the appellant gave to the police, on that occasion M told him that if he ever went near the complainant again "she would not call the police, she would just cut me". M’s evidence was to the effect that, apart from that incident, she knew nothing of any sexual activity between the two "except for when they wanted to get married". She placed that incident as being in 1982, that being the year during which the complainant turned 17. But there was no reason why the jury could not have accepted the complainant on this point, nor need they necessarily have regarded it as strange that she failed to complain before she was 15. In the cross-examination of the complainant, which appears to me to have been competently conducted, little emphasis was laid on the question of complaint and it was not suggested that the complainant had any particular reason to invent allegations of misconduct against the appellant.
As to the other criticisms made of the Crown case on behalf of the appellant, some depend entirely on the proposition that the jury should have been inclined to accept M’s evidence; for example, evidence that M gave criticising the appellant’s general credibility is said to constitute a reason for the verdicts being unsafe. Lee J says, and I respectfully agree, that matters of that sort were for the jury. I have considered all the matters raised on behalf of the appellant, but propose to deal specifically with only three of them, being those which seem to me to call for some analysis.
The first is what is said to be the inconsistency between the complainant’s account of the incident which founded count 3, on which a verdict of unlawful carnal knowledge was returned, and the period referred to in the indictment. The charge was "That on a date unknown between the 4th day of November 1979 and the 5th day of November 1981 at Calliope" the appellant raped the complainant; the jury returned a verdict of unlawful carnal knowledge.
The complainant’s evidence included an account of an act of sexual intercourse which occurred at her grandmother’s residence when she was 12 years old. The incident is described in some detail in the reasons of Lee J. The complainant did not, of course, identify that in her evidence as constituting count 3, but it must be assumed that the Crown put it forward as constituting count 3; when the jury raised a question about count 3 (at p. 89) the judge read to them the complainant’s evidence about the incident to which I have just referred and which she described as having occurred when she was 12 years old. Subsequently, the jury sent a message to the judge referring to the evidence as to the age of the complainant (who was born in 1965) when the incident constituting count 3 took place; the jury drew attention to the dates alleged in the indictment. The evidence was that the complainant’s family moved to Calliope in 1977 or 1978 and it was while the family were waiting to move that they lived at the grandmother’s home.
It does not appear to me that the verdict on count 3 can be sustained. It is quite possible that the incident described by the appellant occurred just as and when she said, but the jury must have had at least a reasonable doubt whether it was the same incident as that which was charged by count 3; if it was not, then the appellant should have been found not guilty because the offence described in evidence was not the matter the subject of count 3. The defect is not that the prosecution did not indicate "which of the offences revealed by the evidence were the offences charged" - see S v. The Queen (1989) 168 C.L.R. 266 at 274; it appears that the requisite indication was given. The problem is that although the Crown did, it appears, identify a particular incident the subject of evidence as constituting count 3, one may deduce from the dates set out in the indictment that count 3 in truth referred to another incident altogether.
The result may, it should be conceded, seem a technical one, in a case where numerous acts of sexual intercourse are alleged and the substantial dispute is whether or not the person making the allegation is to be believed beyond reasonable doubt. It is nevertheless my opinion that the verdict on count 3 should be set aside because the evidence led in relation to that count appears to have been a description of a distinct, although similar, incident.
It should be added that, as I understood the argument, the discrepancy in dates relating to count 3 was relied on as throwing doubt upon the complainant’s general reliability, rather than as supporting the precise contention discussed above. It does not appear to me that the point is particularly weighty, as to the general credibility of the complainant.
The next point taken by the appellant with which it is necessary to deal is the "dubious probative value" of what was relied on as corroboration. I note that Lee J discusses in connection with this a question of the propriety of the relevant direction; that was not a matter to which objection was taken, either before us or below, and it does not appear to me necessary for this Court to consider it in detail. In any event, it is my opinion that the direction the judge gave about the corroborative value of the evidence in question was quite adequate. His Honour drew attention to the difficulties for the Crown which arose from cross-examination of the witness in question, A, and left to them the question whether it should be treated as corroborative. It would in my view have been evident enough to the jury, from the judge’s directions and indeed from their own commonsense, that if the matters which were raised in cross-examination, so to speak, neutralised what A said in chief, then his evidence could not be treated as supporting the complainant’s story.
As for the point which was taken about it before us, one simply has a witness who gave in chief what appeared to be corroborative evidence, but it was substantially weakened in cross-examination. It was nevertheless possible for the jury, depending on the view they took of A's evidence and that of M, to treat what A said in chief as of some significance. There is no rule that a jury must disregard the evidence of a witness if, in cross-examination, the witness expresses doubts about what he or she has said. A was cross-examined on the basis of counsel’s confident assertions as to the date on which the bunks he mentioned in his evidence in chief were put in. Reading the evidence in the record - a different impression might have been gained from seeing and hearing the witness - it seems to me likely that he had no real recollection of when the bunks went in and had not attempted to fix the time of the incident in question, in which he saw sexual activity between the complainant and the appellant, by reference to the date of installation of the bunks. But he was told by the cross-examiner that the bunks went in when he was 12½ and perhaps assumed that this could be positively established. I note that A's recollection was that the bunks went in soon after the move, which appears to have occurred in 1977 or 1978.
As it happens, counsel’s assertion as to the date of installation of the bunks depended, so far as one can tell from the record, solely upon a claimed recollection of M that the bunks were not finished until 1983. It was open to the jury to have reservations about M’s neutrality, as to the disputed question between her daughter and her brother which was before the court.
But while one must agree that A's evidence may not, depending on the view the jury took, have assisted the Crown case much or indeed at all, its deficiencies were firmly and accurately pointed out to the jury, not only during the summing-up, but by an intervention in the course of the evidence, both of which are referred to in the reasons of Lee J.
The last of the three points taken on behalf of the appellant which it seems to me necessary to discuss in detail is the improbability of the complainant’s story about her hymen. She said in effect that she had incomplete sexual intercourse with the appellant many times before she was 15, but that her hymen was ruptured only on the last occasion. There was medical evidence from a Dr. Mottarelly that it was unlikely or almost impossible that a girl’s hymen would be intact after many episodes of sexual intercourse. One possibility, dealt with in the doctor’s evidence, was that the hymen was perhaps damaged before the last occasion on which the complainant had intercourse with the appellant, but she was not conscious of that having occurred and that on that last occasion it was completely torn; the doctor, in effect, expressed the view that that was very unlikely. In his directions to the jury the judge recommended the doctor’s view that "it was highly improbable that the complainant’s claim of losing her virginity on the last of hundreds of occasions of intercourse could be true". His Honour then mentioned, properly as it seems to me, the possibility that the complainant was mistaken in thinking that what she experienced on the last occasion of intercourse with the appellant was the first rupture of her hymen and that it had in fact been ruptured many years before. This was an apparent weakness in the Crown case, but not one incapable of satisfactory explanation.
To revert to the more general problem of the complainant’s credibility, a reading of her evidence does not produce a conviction that the story of a long sexual relationship with her uncle is invented or substantially untrue - rather the contrary. One is also entitled to notice that the only question put to the complainant by the appellant’s counsel below which (perhaps) conveyed a denial of the existence of a long sexual relationship was the last of the following:-
" I put to you, B, that S never had sex with you without your consent?--
I’m sorry?
S never had sex with you without your consent?-- No.
That you have made all of this up?-- No. "
Perhaps "all of this" may mean the whole of the evidence, but in the context it may be directed only to the allegation of non-consensual sex. Having regard to this passage and keeping in mind the rather half-hearted and uncertain refutations of the complainant’s allegations, when they were put to the appellant by the police, it would not be astonishing if the jury treated the substantial issue as being the question of consent, particularly as to count 3.
My conclusion is that the appellant’s submissions with respect to the conviction of rape must be rejected, but the conviction of unlawful carnal knowledge should be set aside - the latter, on the basis of the likelihood that the evidence advanced to support count 3 in truth related to an incident other than that charged.
I would allow the appeal to the extent only of setting aside the verdict of unlawful carnal knowledge on count 3; in my opinion a verdict of acquittal on that count should be entered; that is, there should be no new trial on that count.
REASONS FOR JUDGMENT - LEE J.
Judgment delivered 04/06/1996
This is an appeal against convictions in the District Court at Gladstone on 14 June 1995 of one count of rape alleged to have been committed between the 4th day of November 1973 and the 5th day of November 1976 at Yarwun, and one count of unlawful carnal knowledge alleged to have been committed on a date unknown between the 4th day of November 1979 and the 5th day of November 1981 at Calliope. Both of the convictions relate to the same complainant. Taking into account the long delay since the commission of the alleged offences, the learned judge sentenced the appellant to seven years imprisonment for the rape with a recommendation that he be considered for parole at the expiration of two years of that term of imprisonment, and two years imprisonment for the unlawful carnal knowledge.
The original indictment charged the appellant with three counts of rape. The second count, which was identical to the first, was withdrawn from the jury during the trial. Of the remaining two counts, the appellant was convicted of rape in respect of the first count, and of the lesser charge of unlawful carnal knowledge in respect of the third count. The ground of appeal relied upon is that the verdicts are unsafe and unsatisfactory. Two other grounds in the notice of appeal were that the verdict was contrary to the evidence and that the trial judge erred in not withdrawing Count 3 from the jury, but these were not pursued. The appellant did not give evidence at the trial although he called evidence in his defence.
The first of the alleged offences occurred over 20 years before the trial. The complainant was born on 4 November 1965 and is the niece of the appellant. She was 29 years of age at the trial and nine years of age when the first offence allegedly occurred. The appellant, who is the brother of the complainant's mother, was born on 11 April 1957 and is 8½ years older than the complainant. He was 38 years of age at the trial and was about 17 years of age when the first offence allegedly occurred.
The offences allegedly occurred at different locations. The complainant's father (L) and her mother divorced and each remarried. Her mother married F and each of the complainant's parents had further children. The complainant lived at different places at various stages including her mother's different residences as well as the residences of her grandmother and that of her father. As will emerge below, the fact that she said that she lived with her mother when aged 11 to 15 after which she went to live with her father for nine months at the end of which she returned to live with her mother, is of some importance. This might well have then put her age at 16 years. She said that she then lived with her mother for a few months before she got a job and started working (7). This would certainly have put her age above 16 years which is consistent with evidence given by her stepbrother A that she left home halfway through Grade 11 when she was about 16 or 17 years of age and went to live at Boyne Island where she worked (37).
The complainant said that she used to see the appellant when she visited her grandmother with her mother. He lived with her grandmother. She said that he began to touch her sexually when she was three or four years old, i.e. some 25 or 26 years before the trial and some four years before the earliest date mentioned in the indictment (4 November 1973). The appellant would then have been about 11 or 12 years of age. She said that he stuck his hands inside her pants when they were swimming in the creek at her grandmother's place. She said she squirmed because it hurt when he tried to put his finger into her vagina and he told her to be quiet or he would drown her. She screamed. Her grandmother came out onto the bank and said "What's going on down there?", and he desisted. He then moved her to the bank and his actions ceased. Her stated recollection of this incident and her grandmother's remarks when she was a very young child appeared to be surprisingly clear after the length of time involved. However, in spite of concerns expressed at the beginning of the trial by Counsel for the appellant in the absence of the jury (Record p.4) that the complainant's written statement indicated that she had remembered further details following counselling, no cross- examination occurred with respect to this aspect.
She said that he continued to touch her many times in a similar way whilst she used to sit on his knees watching television, until she squirmed, whereupon he desisted so that other persons watching television at the same time would not notice what had occurred or that any misconduct had taken place. She said that this type of contact occurred hundreds of times. Strangely, this conduct and her squirming was never noticed by any other person in the household, including her mother, her stepfather or her grandmother at whose house they stayed at different times. She said that apart from sexual intercourse, no touching of this kind ever occurred after she was 12 as she stopped sitting on his knee whilst watching television, this being the only place where she said that this type of activity had occurred apart from the earlier occasion when swimming at her grandmother's place when she was 3 or 4.
The complainant said that the appellant began to have sexual intercourse with her when she was nine years of age, i.e. some time after 4 November 1974. She testified that these acts of intercourse occurred frequently until she was fifteen years of age, i.e. until after 4 November 1980. Thereafter, she said that no further sexual intercourse or sexual contact of any kind occurred. She said that during this period (i.e. between when she was 9 and 15 years of age), the appellant had sexual intercourse with her "hundreds of times".
The last time the appellant had sexual intercourse with her, according to her evidence (7,15,18), was at the end of the nine month period after she went to live with her father after she turned 15. Notwithstanding her evidence that the last act occurred when she was 15, she might well have been 16 years of age at that time. She said he then proposed marriage to her. The appellant in a record of interview said that this incident occurred when she was 16. It appears that this incident occurred at her grandmother's house where the appellant lived because she said she was going to the appellant regularly for affection at that time (18). This also accords with the appellant's version to the police. The complainant said that on that occasion, the appellant ruptured her hymen and ejaculated into her for the first time. This alleged incident was not the subject of any charge.
On other occasions when the appellant had sexual intercourse with her, she said that he had ejaculated onto the bed clothes which became wet and she frequently used to sleep in the bed with the bed clothes wet. She explained that her hymen had not been previously broken because all of the prior acts of intercourse were not full penetration as occurred on the last occasion. By this she meant that previously the appellant inserted his penis into her vagina to just past the head of the penis, but on one occasion she said it went in about half way.
The first count related to an alleged incident when the complainant was with her older brother R at about 6.00pm at her mother's house where she then resided. Her mother, stepfather and younger stepbrother A had gone to visit her grandmother. She stated that she was nine at the time so that this occurred on or after 4 November 1974. On her evidence, as already indicated, this was about the time he commenced having sexual intercourse with her. She said that the appellant rode his motor bike up to the house and came inside. This means that on her evidence he must have ridden it some 40kms from her grandmother's place where he lived. After playing with the complainant and her brother R who is now deceased, she said that he showed R how to have sexual intercourse with her while she was on her little brother's bed. He guided her brother's penis part way into her vagina and explained to him what to do in relation to movement. This lasted for some two or three minutes. She then moved to her bed and the appellant proceeded to have intercourse with her. She estimated that this lasted for one or two minutes. He was on top of her with a leather jacket on and she had difficulty breathing. She said that she thought she was going to die. This incident was directly challenged in cross-examination by the defendant's Counsel putting to the complainant that the appellant never owned a leather jacket, to which she replied that it was some sort of leather or vinyl.
Thereafter, she said that he continued to have regular sexual intercourse with her. She said it occurred about 20 times between the occasion referred to in Count 1 and that referred to in Count 2. It usually occurred in the bedroom when she was staying overnight at her grandmother's house where the appellant resided. None of these alleged acts were the subject of any count.
The second count originally included in the indictment related to an alleged incident which the complainant stated had occurred at her grandmother's house at Riverslea in Calliope. She said she was aged between nine and ten years. A group of family children were playing in the shed on the property. She stated that the appellant took her around to the back of a stage in the shed where he first touched her vagina with his hand for about five seconds and then proceeded to have sexual intercourse with her up against a wall for one or two minutes. She said that one or two of the other children kept peeking around the side to see what was going on, but the appellant told them to go away. She said she did not consent to sexual intercourse. This count was later removed from the consideration of the jury because the indictment specified the place of the offence as Yarwun, whereas the complainant gave evidence that it occurred at Calliope. She was apparently confused in this respect (22-23), which is not surprising after the 20 years or so since its alleged occurrence. She said that sexual intercourse continued after this occasion also.
Evidence led on the third count related to an alleged incident which she said occurred when she was 12 years of age (i.e. after 4th November 1977) during the period when she, her mother, her stepfather, her brother R and her stepbrother A were staying at her grandmother's house in Calliope whilst her mother was pregnant with her younger sister T. This period of residency was not challenged. The complainant said that during this period "he used to come in practically every night and they all blended into each other". She said that she could not remember each specific incident but she did remember one in particular that was "more rougher than usual. I was putting up a fight." Again she said she did not consent to sexual intercourse. This was the occasion relied upon by the Crown as constituting the third count.
She said that the appellant came to her bed and put his hand under the edge of the blankets and began to touch her vagina through the leg of her pants. He forced her legs apart with his knee, whereupon she flipped onto her stomach. She turned back again, saying she was frightened that he would enter her from behind. She stated that he then pinned her hands above her head and pulled her nightie up. He bit her nipple and then began to have sexual intercourse with her by pushing his penis through the leg of her pants for two or three minutes. There was a wet patch on the bed. This was not the final occasion of sexual intercourse which she said occurred at the end of the nine month period after she went to reside with her father after she turned 15, being the occasion during which she said that he ejaculated inside her for the first time and broke her hymen.
The complainant said that this conduct at her grandmother's place during this period always took the same pattern. The appellant always stuck his hand under the blankets at night when everyone else was in bed. He put his hand into her underwear, touched her vagina, then hopped into bed and pulled her underwear to one side. He always wore underwear. He kept them on and inserted his penis into her through the leg of her pants. She said that he never pulled her underwear down at any time.
The Crown also called the complainant's stepbrother, A, who was some 4½ years younger than the complainant. He was born in May 1970, and was aged 25 years at the trial. He initially said that he had witnessed one incident when he was seven or eight years of age (making the complainant 11½ to 12½ years of age), where the appellant had sexual intercourse with the complainant. The Crown advanced this evidence not as evidence of any of the counts on the indictment but as corroboration of both Counts 1 and 3 as charged (record 4-5, 70). The trial judge allowed it to go to the jury on the basis of confirming the complainant's evidence, which was of a non-consensual sexual relationship.
A stated that he was lying on a bunk bed approximately three metres away from his sister's bunk bed in their parents' home. Apparently the appellant was visiting them at the time. He was awoken by hearing the complainant say "stop, don't do that, you're hurting". He said he saw the appellant lying on top of his sister. They had blankets over them although the blanket was "slightly ajar" so that he could see his sister's pants pulled down to her thighs, which was contrary to her evidence that the appellant had never pulled her pants down but rather pulled her underwear to one side to insert his penis into her through the leg of her pants. A said he saw "gyrations" and heard "grunting" noises, which he said could have been made by the appellant or the complainant. He asked the complainant to take him to the toilet. He said that she told him to "just hang on". Apparently the activity he observed continued. After waiting a little while longer, he repeated the request to go to the toilet and she again said "just hang on a minute". After a while she took him to the toilet and on their return the appellant had gone. It was not suggested in cross-examination that what he saw or heard was untrue.
However, in cross-examination, he conceded that the incident he witnessed may well have occurred when he was 12½ years of age, i.e. when the complainant would have been 16 or 17 years of age, which is contrary to her own evidence. As indicated, she said that the last incident of sexual intercourse occurred at the end of the nine month period of residence with her father with whom she went to live after she turned 15 years of age. If in fact the last incident she described occurred when she was 15, that could have occurred up to two years earlier, being the occasion on which she said she felt that her hymen ruptured. Also, if A was 12½ years of age and the complainant was 17, the incident he described occurred five years after the date of the last incident said to comprise Count 3.
A finally agreed in a positive way that he was probably about 12½ years of age when he witnessed this incident (36). In answer to a question put to him that the bunks were installed in January 1983 when he was 12½, he said "That's altogether possible - like I said I am remembering this from when I was young and it sort of - you don't remember exact dates" (35). This appears to accord with the views expressed by the learned trial judge who then interposed the following questions to A:-
"You seem to be somewhat more positive that the time you fell out of the top bunk you were
more like 12 and a half than seven or eight?-- Well, yeah.
You agree with that?-- Yeah. I agree that I may not have been seven or eight, I may have
been older than that, but I know it did happen because I did see it."
This is further confirmed by His Honour's exchange with the Crown Prosecutor who in cross-examination of the complainant's mother suggested in effect that she "came up with the dates for the bunks" after she had thought about what dates needed to be addressed, i.e. in relation to the charges. She denied this. His Honour interrupted and said:-
"Have you not been listening to your own witness's evidence? Your own witness conceded
that he was 12 and a half when he fell out of a bunk on the first night he used it."
His Honour also told the jury that A "also accepts that he was more likely to have been about 12½ years old when that happened". The concession by A also accords with the evidence of the complainant's mother. She said that the bunks were not installed in her home until the Christmas holidays of 1982 to 1983 when A was 12½ years of age. She recalled the fact that on the night they were first installed no side guard had been placed against the top bunk as a result of which A fell out of it onto the floor the very first night that he used it. A agreed that he fell out of the bunk on the first night he used it. This was always a family joke.
The complainant gave no evidence of any incident of a sexual kind having occurred in or near bunks. On the contrary, the only direct evidence by her relating to bunks occurred during cross- examination (25) which shows that they were the means by which she could avoid the appellant when he stayed over at her parents' home, by simply moving from the bottom bunk to the top bunk and then back to the bottom bunk "until he got sick of it". This stated means of avoiding sexual advances from the appellant accords with her evidence-in-chief that after the last act of intercourse described when she said she felt her hymen broke, she said she avoided him if he came into her bed by just getting out and moving into another one and that if he followed she would get out again "until he got sick of it".
The complainant had no specific recollection as to when the bunks were installed but said "I was still at home" (25), which is consistent with her evidence that she returned home for a few months after she had lived with her father for the nine month period above referred to. She said she stayed with her mother "for a few months until I got a job and I started working" (7,8). She would then have been at least 16. As indicated, her evidence in this respect is also consistent with A's evidence in re-examination as to when the bunks were installed and as to the complainant's age. The Crown prosecutor proceeded on the basis that A was 12½ years of age and the appellant 17 years of age at the time. When asked whether the complainant was living at "Riverhills" when she was 17, A said that she left about halfway through Grade 11 which made her about 16 or 17 years of age. He was not sure when she actually left home but said that "she went to live at Boyne Island when she did to work there" (37). He agreed that "the bunks were certainly installed at the house prior to her leaving".
The only other evidence on the point, when earlier first asked in cross-examination if he could remember when the bunks were put into the house, was the following answer:-
"No, not really. It wasn't that long after we got there because we needed bunks in our
room." (35)
His evidence as to when the family moved to Riverhills was confused when he appeared to have accepted that it was 1978 (57), which nevertheless accords with the evidence of the complainant's mother that they moved into Riverhills in about 1977. That answer does not provide a satisfactory time frame as to when the bunks were installed and must be considered in the light of his subsequent evidence referred to above. This evidence as to when the bunks were installed came directly from the complainant's mother, but with some support from the evidence of the complainant and A.
The Crown also tendered a record of interview with the appellant, taken by the police on 11 April 1994. As appears from evidence given by the complainant's mother, which was not challenged, (it in fact accords with the report of Dr Alore, psychiatrist, later tendered during sentencing), the appellant obviously suffers from a severe mental impairment involving difficulties with speech, memory and planning, which might explain some of his hesitant responses in the interview conducted so many years after the alleged incidents. He denied any recollection of sexual relations with the complainant before she turned 16, after which date he said that consensual intercourse with her occurred. He was definite in denials of specific incidents put to him by the police officer.
The complainant's mother said that in 1972, when the appellant was 14 years of age, he was involved in a car accident resulting in numerous very serious injuries including a large open fracture of the skull, through which brain tissue was exposed and oozing. He also suffered orthopaedic injuries including fractures to the femur and elsewhere. He was hospitalised for about seven weeks and underwent about four operations. He spent some considerable time at the Taringa Rehabilitation Centre. As a result, he was substantially immobile for most of 1972. He used crutches for most of that year and had a pin in his hip for a considerable period of time. It was not until the latter part of 1973 that he was able to move around with some difficulty and with the aid of a walking stick. In 1973 he contracted meningitis, as well as epilepsy, causing frequent petite and grand mal seizures and blackouts which are partly controlled by medication. As indicated, he suffers from severe memory and speech problems. He also has a severe limp.
The complainant also said that the appellant had been involved in a serious motor vehicle accident. His general health condition was not disputed by her. Her mother spoke of his very serious health condition which persisted for some years after the accident. He suffers some seizures to the present day. The inference sought to be drawn was that it would be unlikely that he would have committed at least some of the offences charged as well as some of the other conduct described by the complainant which was not the subject of any charge.
The mother also said that the appellant did not buy his motorcycle until September 1976 and had no licence to drive it until March 1977. The appellant in the interview said he did not have a licence at aged 17 but that he owned a 100cc Suzuki motorbike in 1973 and 1974. According to the complainant's mother, before March 1977 the appellant only rode his motorcycle on the property. The offence referred to in Count 1 allegedly occurred when the complainant was nine years of age, i.e. after 4 November 1974. On the other hand, the complainant said that the appellant rode his motorcycle to the house on the occasion referred to in Count 1, when he was 17 and had just got his licence. If her mother was correct, the events in Count 1 could not have occurred until the complainant was about 12 years of age.
The complainant's mother said that she had nursing experience. She said that she was molested as a child herself and was very suspicious of anyone who came into contact with little girls. She said that the complainant was manipulative with a tendency for telling stories. She also said that she would have noticed any illicit sexual activity going on between the appellant and the complainant because she "watched like a hawk", and saw nothing. Neither did the complainant's grandmother or stepfather.
Her mother said that on one occasion when the appellant was 16 and in very poor health and when the complainant was about 7½ years of age, she heard her cry out. On going up the stairs she found that the complainant was in the appellant's bed but on top of the blankets. He was under the blankets. He was hugging her tightly to which she objected. She said that the complainant must have gone upstairs to his bed as he was virtually immobile at the time and her bed was downstairs. She reprimanded him severely over that incident. In the record of interview, the appellant referred to that incident when he simply had his arms around her. Her mother came up and saw them in the bed. He said "she grabbed me by the collar and pulled me out of bed and took me aside and told me if I ever went near B again, she would not call the police, she would just cut me". This is consistent with the mother's evidence that she watched closely and was suspicious when it came to little girls following molestation of herself as a child. This incident occurred at least 18 months before the rape alleged in Count 1.
Apart from this incident, the complainant's mother said she did not find out that they had any attraction for each other until sometime in 1982 when they told her they were going to get married. The complainant would then have been about 16 years of age which was not very much after (if at all) the occasion described by her when the appellant proposed marriage to her being the occasion on which she said that the final act of intercourse occurred. As indicated, the appellant told police that this, including the discussion of marriage, occurred when she was 16. The complainant's mother denied that the complainant had made any mention to her when she was 15 years of age that sexual activity had been going on between her and the appellant. The complainant's mother also said that she or her mother always did the laundry. She said that as a nurse she was used to bed stains of various kinds and could not miss them. Neither she nor the grandmother ever noticed any blood or seminal stains on the bed linen from the complainant's bed.
Dr Mottarelly also gave evidence for the defence. He said that if the appellant had had intercourse with the complainant hundreds of times, as she alleged, it was highly unlikely that her hymen would not have ruptured until she was 15, even if penetration was not complete in the sense that the complainant described in her evidence. He said that if the occasion on which the complainant said she felt her hymen rupture when she was 15 years of age was a particularly traumatic episode of sexual intercourse, there may have been some tearing of other tissue which may have confused her. He said that had sexual intercourse previously occurred hundreds of times, it was almost impossible that the hymen was still intact on the occasion she described when she was 15. He had never examined the complainant and conceded that there were enormous variations in the size of the hymen and the strength of the hymen. He also said that it would not matter whether penetration was full or incomplete because the hymen is at the opening on the outside and once penetration was started, the penis had to pass through the hymen.
There is no medical evidence of whether the hymen was intact prior to the active intercourse at age 15 to which the complainant referred. The learned trial judge directed the jury that it was a matter of commonsense and that a possible explanation was that the complainant was mistaken in thinking that what she felt on the last occasion amounted to the rupture of her hymen, rather than the tearing of other tissue, as the doctor postulated, during a particularly traumatic episode of sexual intercourse.
Counsel for the appellant relied on several factors which he submitted rendered the verdicts unsafe and unsatisfactory:-
(i)The absence of fresh complaint despite opportunity, her explanation being that facing her mother's
anger was a lot worse than putting up with a couple minutes of sex.
(ii)The delay between the commission of the offences 17 to 20 years earlier and the complaint to the police on 31 March 1994, her explanation being that she thought the family would blame her.
(iii)The inconsistency between the complaint and the testimony given with respect to Count 2 plus
the place where the offence was alleged to have occurred.
(iv)The complainant's evidence that the offence in Count 3 occurred when she was 12 years of age,
whereas the indictment fixed her age as between her 14th and 16th birthdays.
(v)The dubious probative value of the "corroborative evidence" of A which was said to confirm the existence of an illicit sexual relationship years before, particularly having regard to the fact that he was 12½ years of age on the basis that the bunks were not installed until 1982-83, fixing the complainant's age at about 17 years.
(vi)The discrepancy between A's evidence that the complainant's pants were down when the complainant said that they were never removed because sexual intercourse always occurred through the leg of her pants.
(vii)The improbability that despite the duration and frequency of the sexual relations between the appellant and the complainant in a family household, the suspicious nature of the complainant's mother who said she "watched like a hawk", and the proximity of the complainant's bedroom to other rooms in the house, a sexual relationship would have remained undiscovered.
(viii)The absence of evidence of stains on the bed sheets.
(ix)The high improbability that the complainant's hymen would have remained intact until she was
15 despite "hundreds" of previous penetrations, partial or otherwise.
(x)The doubtful capacity of the appellant to commit the offences having regard to his injuries and
their aftermath.
(xi)The complainant had a penchant for telling stories and was manipulative.
Many of these matters were clearly for a properly directed jury to resolve: see e.g. R v Allen [1937] St.R.Qd 32 per Henchman J. at 36.5. For example, the absence of fresh complaint and the complainant's explanation concerning it, the improbability that illicit conduct had it occurred, would not have been noticed by others in the household, the absence of evidence of stains on the sheets, and the mother's evidence that the complainant told stories. The jury was entitled to assess the reliability of various witnesses and might have concluded that in some respects the mother's evidence was unreliable in that she and perhaps other family members tended to shield the appellant. So also with the evidence concerning the hymen and the evidence concerning the alleged doubtful capacity of the appellant to commit the offences by virtue of his physical condition. There are however three areas which require comment. These are:-
(a)the discrepancy between the appellant's evidence that she was 12 years of age when the offence in Count 3 allegedly occurred, whereas the indictment put her age at between 14 to 16 years;
(b)the nature of the alleged corroborative evidence by A and the trial judge's directions in relation
thereto; and
(c)whether a further or more emphatic warning should have been given regarding the very long delay between the commencement of alleged improper sexual conduct and the complaint to the police in March 1994, having regard to the very young ages of both the complainant and A when they experienced the activity which they described. The complainant said that improper conduct commenced when she was three or four years old, some 25 or 26 years before trial.
No ground of appeal was specifically directed to the summing up which is the proper course if complaint is to be made as to any aspect of it. However, because the ground relied upon that the verdict was unsafe and unsatisfactory requires the Court to conduct for itself a review of all the evidence, it is obvious that the trial judge's summing up and directions with respect to the evidence, the use the jury could make of it, and any warnings or instructions given or not given with respect to the evidence, must necessarily be part of that review which cannot exist in a vacuum. If it be assumed that the jury pays heed to the directions, instructions or warnings given by the trial judge, those directions, instructions or warnings with respect to the evidence and the use the jury should make of it, necessarily have a significant impact.
This appears to be the view expressed in Cross on Evidence (para. 11,140) which states that the evidence is considered together with the summing up. Indeed, many convictions have been quashed on appeal on the basis of a lack of warning or insufficient warning in cases where such a warning was necessary, such that the verdict was held to be unsafe and unsatisfactory: see for example Longman v The Queen (1989) 168 C.L.R. 79; R v Wilson (C.A. 355 of 1994, 14th November 1994). In Chamberlain v The Queen (No.2) (1983) 153 C.L.R. 521 at 604-5, Brennan J (as the Chief Justice then was) referred to various categories of evidence upon which a reasonable jury might act in returning a guilty verdict and which are frequently unsafe such that they should be acted upon (if at all) only after the jury has been warned of the dangers of acting on them. At 605 His Honour said:-
"The Court, taking account of any instruction which the trial judge has given the jury, must be satisfied that its experience in assessing the safety of such evidence is superior to the experience of the jury."
See also His Honour's remarks in Carr v The Queen (1988) 165 C.L.R. 314 at 324-5. At 325 His
Honour said:-
"Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt. A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight.
...
In the absence of a warning in those cases, a conviction founded on that evidence will be
regarded as a miscarriage of justice. ..."
Therefore the failure to give an appropriate warning where a warning is necessary or indeed failure to give an appropriate or a correct direction where such was necessary amounts not to a mere technicality but relates in a very real way to the evidence itself. Without proper direction, it may be that the jury could not properly form a correct view on the evidence. Hence it can be said that the evidence and its concomitant warning or direction go hand in hand, so that without the requisite modification by the warning or the direction, the evidence per se is unsafe and unsatisfactory. The warning or direction is designed to remove the dangers.
Furthermore, it was held by the Court of Criminal Appeal in Western Australia in R v Ross (1987) 29 A.Crim.R. 77 that an appeal against conviction may be upheld by reference to matters not relied upon by the appellant. In R v Bracewell (1979) 68 Crim.A.R. 44, the English Court of Appeal also upheld an appeal on the basis that the verdict was unsafe and unsatisfactory on grounds not raised by the appellant, all of which had been dismissed. Various reasons were given by the Court including the absence of a strong warning of the dangers of relying on the evidence of either of the accused.
As to (a), Counsel for the appellant submitted that the alternative verdict of unlawful carnal knowledge on Count 3 was explicable on the basis that the complainant stated that for the nine months that she lived with her father after she had turned 15, she resorted to the appellant at her grandmother's house about every three weeks for affection and "...put up [with sex] just for the cuddles...to feel that somebody cared". There are obvious difficulties with this explanation.
The complainant said that after she had turned age 15, she moved in with her father for nine months also at Calliope. She stayed there with her father, her stepbrother and baby brother. This period of residency was not challenged. As indicated, it was after this period of residency with her father that she moved back with her mother for a few months until she left when she got a job and started working. It was during that nine month period when she moved to live with her father after she was 15, that she resorted to the appellant (who lived elsewhere at her grandmother's place) about every three weeks for affection and cuddles and put up with sex and not at any earlier time when she was 12. She also said that it was at the end of this period of residence with her father that the final act of sexual intercourse occurred, being the occasion when she felt her hymen break. As indicated, this could have made her about 16 years of age. None of these incidents were the subject of any charge.
However, the learned trial judge in his summing up to the jury in respect of Count 3 said:-
"Her age at the material time is alleged to have been about 15, so the Crown must prove beyond reasonable doubt that she did not consent to intercourse on that occasion. The complainant says that she tolerated sex with her uncle as preferable to her mother's anger if she made objection but she did not consent. Now, that is not inconsistent, that is not an improbable situation. The question of consent is a matter for you to decide. It is a question of fact. A woman might appear to consent to sexual acts but not do so in fact."
His Honour then referred to the question of whether the appellant might have mistakenly believed that she was consenting and, still in respect of this count, continued:-
"On her account, there were many acts of intercourse over the years without any objection or resistance from her. Further, she says that she sought his company for affection and sex was tolerated for the sake of cuddles that she received, other shows of affection.
...
The onus is on the Crown to rebut this claim of a mistake."
His Honour then directed the jury that it was open to them to find the appellant guilty of unlawful carnal knowledge. His Honour's direction that the complainant was alleged to have been about 15 years of age at the time of this offence, was not supported by the evidence. The only evidence in relation to Count 3 was that given by the complainant. She said that the alleged offence occurred when she was 12 years of age during the period of six months when she, her mother, stepfather, brother R and stepbrother A were staying at her grandmother's house in Calliope while her baby sister T was on the way. There was no need during that period for her to go elsewhere to visit the appellant every three weeks for cuddles etc. as she did when she was 15 and living elsewhere with her father, because as indicated, she was living in the same house as the appellant (i.e. her grandmother's house), when she said the offence the subject of Court 3 occurred. She said that he used to visit her almost nightly in her bed. The incident she described in Count 3 was "more rougher than usual", being the occasion she remembered and the occasion relied upon by the Crown in support of that count.
There is an obvious discrepancy between the evidence of the complainant that she was 12 at the time of the offence alleged in Count 3 and the dates in the indictment which specified that the incident occurred between 4 November 1979 and 5 November 1981 when she would have been aged between 14 and 16 years of age. This major discrepancy was apparently not noticed until the jury raised the question after they had retired and sought clarification (90). The message from the jury was as follows: "Evidence she was 12 years old. Count 3, she had to be 14 to 16 years old".
This clarification was sought notwithstanding that the learned trial judge in the course of his summing up had told the jury that she was about 15 years of age at the date of that incident, that she tolerated sex with her uncle as preferable to her mother's anger if she made objection, that she sought the appellant's company for affection and that sex was tolerated for the sake of cuddles that she received. Notably, the learned trial judge was not asked by either Counsel to correct this error in relation to the age of the complainant or His Honour's statement that the complainant resorted to the appellant for affection at about the time of this alleged offence.
His Honour recognised that there was a legal problem and invited submissions in the absence of the jury. The Crown Prosecutor submitted that the date was irrelevant. Counsel for the appellant submitted that the date was a particular which should be proven beyond reasonable doubt. His Honour then gave a lengthy redirection to the jury at 91-92 as follows:-
"You have questioned the evidence that the complainant was 12 years old at the time of the offence described in Count 3. As you have correctly assessed, the evidence is that the complainant was born on 4 November 1965, so that in the period between the 4th day of November 1979 and the 5th of November 1981 she was, in fact, 14 to 16 years of age. She is still, of course, under 16 so the arguments you have heard are of the same weight regardless of her age, but this variation which occurs because B claimed that she was 12 years old at the time of this third offence has to be looked at from two different points of view: either she is correct and the indictment is wrong as to the dates and the year should be 1977 to 1979, or she is in error as to her age at the time when the indictment is correct.
Now, if the indictment is correct and she is in error that is something which you must take into account on the question of her credibility. If she is correct in saying here that she was 12 years old at the time the error in the indictment must be based upon what she has said on an earlier occasion.
Anything the Crown Prosecutor, for example, has put to a witness in the course of the defence case and anything which the Crown has said to you in the course of the addresses is based upon the Crown's instructions, and they come principally in this case from the complainant, so if the Crown has gone wrong as to the date of the offence then there has been a misunderstanding or an alteration in the instructions which the Crown has.
Apart from that, the date on which an offence is alleged to have happened is not a critical element, but is a particular to enable people to identify the specific occasion. In this trial, there are allegations of hundreds of acts of sexual intercourse over a lengthy period of time. The obligation on the Crown in choosing on this occasion three and now two representative occasions is to find some way to identify those particular occasions and separate them from the general evidence, general background evidence, of sexual activity. So, it is not necessary for the Crown to prove beyond reasonable doubt every offence as alleged in the evidence, provided that you are satisfied that there was a specific occasion identified on the evidence, either by reference to B's age at the time or by where the parties lived or by the particular circumstances.
The Crown chose obviously to highlight this particular act of intercourse amongst all the others because of the complainant's description that this one was 'more rougher' than the others, using her terms. As I say, an error has occurred one way or another. It is a matter for you. If you are still satisfied beyond reasonable doubt that an event described by B occurred then you may convict. If this particular aspect of the matter adds so much to any doubt or the confusion which arises as to create a reasonable doubt as to the events as a whole then you must acquit. You have no choice about that."
In my opinion, there is a real possibility that the final act of sexual intercourse described by the complainant which allegedly occurred at the end of the nine month period after she went to live with her father after she had turned 15 (when she said her hymen was broken), was confused with the occasion referred to by the complainant when she said she was 12 years of age, being the incident she recalled because it was "more rougher than usual".
Whether that be so or not, the treatment of Count 3, both during the initial summing up and in the redirection, might well have confused the jury, particularly having regard to the verdict of unlawful carnal knowledge when there was no evidence from her that she resorted to the appellant for cuddles and put up with sex, during the period that she said the incident occurred when she was 12 years of age and residing with other members of her family, as well as the appellant, at her grandmother's house. Indeed, she swore that she did not consent to sexual intercourse on that occasion. The verdict on Count 3 cannot stand: cf Andrews v R (1968) 126 C.L.R. 198 at 207, 209; R v Schultz (C.A. 413 of 1995, 14th December 1995).
As to (b), in this case, as in most cases of sexual offences, the question of corroboration was central to the trial: see e.g. R v Wilson (C.A. 355 of 1994, 14th November 1994); R v Schultz (supra). The learned trial judge rejected a submission at the end of the evidence and before addresses that A's evidence should not be used by way of corroboration before the jury. His Honour correctly explained to the jury in the traditional way why corroboration was usually necessary in cases of this nature. He explained what the nature of corroboration was, and also explained his duty to tell the jury what evidence was capable of amounting to corroboration. He then made it clear that it was a matter for the jury to decide whether it was in fact corroborative. His Honour then continued:-
"The only evidence here that is capable of amounting to corroboration is the evidence of A, the brother of the complainant. You will recall - you would have clearly recalled what he said; he saw from the top bunk the movement under the blanket and the complainant's cries. Now, that evidence does not relate to Count 1 or to Count 3. He is not a witness and the Crown does not allege that he is a witness to the offences alleged in Counts 1 and 2. You see, the complainant alleges a long term history of sexual activity between her and her uncle and the accused. (sic). The accused denies all of those claims of sexual activity until after she turned 16. A's evidence, if you accept it, tends to support and confirm her version and to refute his denials by tending to show that some sexual activity occurred on that one occasion of which he spoke. That evidence is capable of corroborating her evidence generally, but does it do so in fact? That is your function.
Now, he viewed the events from the top bunk of a double-decker bunk, his sister being on the bottom of another double-decker bunk across the bedroom. He claims to have been eight or nine years old at the time which, of course, brings the matter within the time span in Count 3. But there is evidence, if you accept it, that there were no double bunks before 1983 and that he fell out of the top bunk on the first occasion he used it. He agrees with that, that he fell out of the bunk. He also accepts that he was more likely to have been about 12 and a half years old when that happened. If that is so, the complainant was then 17 years of age and his evidence does not corroborate her story as to her age or as to the date of the alleged offence. That is a matter for you what you accept as to that aspect of the evidence. Moreover, he told you that he saw his sister's panties pulled down to her thighs. You will recall that she says that never happened. On her account the accused's invariable practice was to move her underpants to one side to insert either his finger or his penis, so what A claims to have seen never happened in fact, according to the complainant.
It is a matter for you what weight you give to the evidence of A and what effect you allow it to have, whether it amounts to corroboration. I mention it is dangerous to convict without corroboration but it is still open for you to do so. You could reject the whole of A's evidence and still act solely upon that of the complainant in convicting the accused, but you must be satisfied beyond reasonable doubt that her story is true before you can safely do so."
In the first paragraph of that passage, His Honour unequivocally told the jury that A's evidence tended to support the complainant's version and refute the appellant's denials and was capable of corroborating her evidence. That paragraph obviously referred to both counts remaining on the indictment. However in the next paragraph, His Honour's remarks were confined to the offence alleged in Count 3. His Honour told the jury that in the event that they accepted that A was 12½ years of age at the time and the complainant was 17 years of age, "...his evidence does not corroborate her story as to her age or as to the date of the alleged offence" (singular). Her story referred only to the circumstances of the alleged offence itself, and not to any incident in the bunks. In context, the "alleged offence" must be taken to refer to Count 3 only. There were in fact two counts for the jury's consideration, Count 1 (when the complainant was nine) and Count 3 (when she was 12). His Honour did not tell the jury that on this scenario, if this was His Honour's intention, A's evidence was not capable of corroborating any parts of the complainant's evidence at all as to any count.
Whilst regard must be had to the settled principle that a summing up must be considered as a whole: R v Stephens [1971] Qd.R. 237 per Stable J. at 242, that passages of a summing up should not be picked out of context and subjected to scrutiny more appropriate to construction of a will: R v McMillan [1968] 2 N.S.W.R. 300 at 302, or that a summing up should not be examined by the use of the figurative magnifying glass: R v Beaver (1979) 1 A.Crim.R. 50 (C.C.A. Qld), the conclusion must be reached that this direction viewed as a whole might well have left the jury with the idea that A's evidence (if they concluded that he was 12½ years of age at the time he observed the incident in the bunks), was still capable of corroboration of the complainant's evidence as to Count 1 and also possibly in relation to both counts, in some other unspecified way, e.g. that he may have been mistaken as to his age at the time or that his age or her age did not matter or that the date of the alleged incident which he mentioned did not matter. This was particularly so, having regard to His Honour's subsequent redirections to the jury with respect to Count 3 (91-92) set out above, during which His Honour said that the date of the alleged offence is not critical and after his explanation concerning the hiatus between the dates alleged in Count 3 and the evidence, and his conclusion that it was a matter for the jury to be satisfied "that there was a specific occasion identified on the evidence either by a reference to B'a age at the time or by where the parties lived or by the particular circumstances".
If the jury concluded that A was 12½ years of age at the time he made the observation and that the complainant was about 17 years of age, what he observed occurred about five years after the complainant stated that the last offence occurred when she was 12 (Count 3). The question then is whether, if the jury accepted that A was 12½ years of age at the time of his observations (which in my opinion was quite likely), his evidence of that incident, occurring as it did so long after the date of the last offence charged, and, on one view of A's evidence, was consensual (i.e. not shown to be non-consensual), was still capable of corroborating the complainant's evidence generally as to one or both counts which necessarily involved unlawful non-consensual sexual activity when she was well below 16 years of age, i.e. aged nine and 12. If not, the jury, in my opinion, should have been specifically told to ignore A's evidence as being incapable of corroborating the complainant's evidence at all or of showing any guilty passion relevant to the earlier charges, and was entirely irrelevant.
As Macrossan C.J. pointed out in R v Sakail [1993] 1 Qd.R. 312 at 315-317, it is permissible and can be of assistance to look over an extended period of time at the conduct and relationship between two persons between whom criminal acts are said to have occurred: R v Ball [1911] A.C. 47; R v Allen [1937] St.R.Qd. 32; and O'Leary v The King (1946) 73 C.L.R. 566. This of course does not mean that there are no limits as to the time period involved which must depend upon the particular offence charged and the other matter sought to be admitted to support the charge in some way. His Honour then referred to a particular application of that principle when someone is accused of committing sexual offences with a single complainant as in this case and said (316):-
"Proof of similar activity or 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 context referred to as the 'guilty passion')."
After referring to certain authorities dealing with sodomy, incest and other cases with a sexual element, His Honour referred to other situations where conduct before and after that alleged as constituting an offence, could be looked at and also to various categories or classifications of evidence by which other conduct may be admitted. These categories include those involving special relationship ("guilty passion"), similar facts, res gestae, and circumstantial evidence. Apart from R v Ball (incest), the other cases referred to which specifically dealt with offences of a sexual nature, allowed evidence to be admitted of other acts where "there was a very close nexus in time, in method, and in circumstance between the indecent act charged and the previous indecent acts sworn to by her": per Henchman J., R v Allen (supra) at 44 (indecent dealing of a girl under 12). R v Sakail was itself in this category (rape) - see the Chief Justice's comment at 319 as to "the close connection in time and circumstances between the matters charged and the matter admitted"; so also was R v Witham [1962] Qd.R. 49 (sodomy committed by father on his 14 year old daughter); R v McK [1986] 1 Qd.R. 47 (incest by father on his daughter); R v Bradley (1989) 41 A.Crim.R. 297 (indecent dealing by a man with his 14 year old stepdaughter); and Sutton v R (1984) 152 C.L.R. 528.
However, no authority has been located which deals with subsequent conduct which, although broadly of a similar kind (e.g. sexual activity), changes its character in an essential respect - for example, non-consensual sexual intercourse (rape) or unlawful treatment of a girl under age 16 years (either with or without her consent) on the one hand, and subsequent consensual sexual intercourse with a female over the age of 16 years (not amounting to incest) or other treatment of a sexual kind with the consent of a girl over age 16 which does not constitute indecent assault: s.343. Cases such as those dealt with in R v Ball (incest), and R v Kilbourne [1973] A.C. 729 involve conduct which is always unlawful. So also with cases involving violence: O'Leary v The King; Thompson v R (1989) 169 C.L.R. 1; R v Mills [1986] 1 Qd.R. 77; Perry v R (1982) 150 C.L.R. 580; and R v Garner [1963] 81 W.N.(N.S.W.) 120.
A's evidence was in this case left to the jury (depending on the view they took of his age at the time), as corroboration of her evidence generally (in relation to the two charges - see para. 1 of the quotation set out above). If properly admitted, it was capable of showing the true relationship between the appellant and the complainant and as indicating a "guilty passion": R v Sakail (supra) at 316; B v The Queen (1992) 175 C.L.R. 599 per Mason C.J. at 601-2; and Director of Public Prosecutions v Boardman [1975] A.C. 421 at 452 per Lord Hailsham of St. Marylebone. Those and other authorities make it clear that other acts of an illicit sexual nature between the same parties may be corroborative of the subject offence by tending to show what is referred to as "guilty passion". But what if the later conduct was not "illicit" or illegal?
On one view of A's evidence, the complainant may well have been about 17 years of age (i.e. above the age of consent) and consented to sexual intercourse with the appellant on the occasion observed by A. A said the grunting noises could have been made by the appellant or the complainant. In particular he said that he asked twice for the complainant to take him to the toilet, with a gap or delay following each request. On the first occasion he said the complainant replied "Just hang on" (with the activity apparently continuing) and finally "Just hang on a minute", with some further delay before she took him to the toilet, which is capable of bearing the meaning that she was consenting and waiting for the act to be completed. Her earlier comment "Stop, don't do that, you're hurting" is equivocal and could well have related to the method by which the appellant (on A's evidence) commenced to engage in the sexual activity involved whether initially through the leg of her pants or otherwise, which may have hurt her and prompted some adjustment. A said her pants were down around her thighs which is contrary to her evidence concerning all sexual intercourse. However viewed, A's evidence does not show that what occurred was illegal sexual intercourse.
This view also receives some support from the accused's statements in his record of interview that he only ever had consensual intercourse with the complainant, and then only after she turned 16. Nor is it widely out of kilter with the complainant's evidence that the last occasion when sexual intercourse occurred between them was at the end of the nine month period after she said she had gone to live with her father after she had turned 15, when he proposed marriage, and which might well have put her age at over 16. That incident occurred at times when she resorted every three weeks or so to the appellant for "cuddles" and put up with sexual intercourse indicating that she consented on that and other occasions over that period. It is also consistent with the mother's evidence that she did not know that they had any affection for each other until the complainant was 16, when "they" told her they wanted to get married.
If this was the view taken or was capable of being taken by the jury of A's evidence, it is evidence of a licit sexual relationship, totally unfettered by legal sanction, even though to many people, a relationship between a maternal uncle and niece as well as a postulated marriage between them which appears not to be prohibited by the Marriage Act 1961, s.23, might not be viewed favourably. The short point is however, whether or not, in circumstances where the complainant consented to sexual intercourse with the appellant after she was 16, what occurred was illegal. In my opinion this has not been demonstrated.
Thus it is difficult to see how that later conduct (depending on the jury's view of the evidence), could amount to corroboration of the complainant's evidence that the accused regularly raped her many years before she turned 16. It is difficult to perceive a circumstance where evidence of a licit consensual sexual relationship which is not illegal, can show that the accused ever coerced the complainant into having unlawful sexual intercourse with her, or that he sexually desired her before she turned 16, i.e. at ages nine and 12, her ages at the time of the two alleged offences.
Sexual conduct which is per se illegal, e.g. incest: Ball, and other types of criminal activity involving violence: O'Leary v R; Perry v R; Thomson v R; and R v Garner, seem to fall into a different category. Sexual intercourse with the circumstances surrounding its commission could change from non-consensual to consensual, particularly after a time gap of many years, providing it is not otherwise unlawful, including cases where the parties had married in the meantime. See for example the possible converse situation referred to by Macrossan C.J. in R v Sakail at 319, involving a lengthy time gap of 10 years. There is no reason why a gap of five years after the last offence charged does not fall into the same category. This view is not affected by her evidence that sexual intercourse (consensual or otherwise) continued after age 12 until she was aged 15. The present case also is obviously different from a case involving sexual relations between a father and daughter or between brother and sister. Nor in the above scenario, could evidence of what A saw (assuming he was 12½ years of age at the time), be admitted on the basis of similar facts, if the later conduct was consensual and the previous conduct was not.
In the foregoing circumstances, there is added significance by the considerable time delay involved. In R v Bond [1906] 2 K.B. 389, A.T. Lawrence J. at 424 said:-
"In all cases in order to make evidence of this class admissible there must be some connection between the facts of the crime charged in the indictment and the facts proved in evidence. In proximity of time, in method, or in circumstance there must be a nexus between the two sets of facts, otherwise no inference can be safely deduced therefrom."
In R v Parkin [1922] 37 Can.Crim. Cases 35, (approved by Webb and Henchman JJ. in R v Allen at 33, 43), the Court was concerned with a charge of unlawful carnal knowledge and other indecent assault on a girl aged 14 years, and whether evidence of similar conduct shortly after of a similar kind was admissible. Cameron J.A. in an extensive review of the authorities which dealt with the admissibility of acts before and after those on the date of the charge which involved guilty passion, nevertheless stressed that there must be sufficient nexus or connection between the acts charged and the facts relating to the previous or subsequent transactions. At 41 His Honour said:-
"In my opinion, under the authorities, the evidence of similar acts given in this case was properly admissible as shewing circumstances constituting a continuous course of action of which the particular offence charged was one link in the chain. There is a close connection in time, place and method between the offence charged in the indictment and the additional acts given in evidence. From the very nature of the offence charged, that of carnal knowledge of a girl under 14 years of age, the reasons for the decision in Reg v Rearden, supra and other like cases are peculiarly applicable."
In my opinion, some assistance can be gained also from the old case of R v Rhodes [1899] 1 Q.B. 77 cited with approval by McHugh J. in Harriman v The Queen (1989) 167 C.L.R. 590 at 630 and following. Wills J. at 84 said:-
"If the transactions sought to be given in evidence had been prior to the offence charged, and within a reasonable period of time, it is clear that they would have been admissible. What difference does it make if they were immediately after the act complained of? If they formed part of the same system of fraud, I think it can make no difference. The only difficulty in this case is, I think, the long interval of time that elapsed between the act charged and the other acts. Very often the only nexus between such transactions is their proximity in point of time. That, however, is not the case here, and, had there been no other connecting link, I should certainly have thought that the transaction two months after was at any rate too remote."
See also Director of Public Prosecutions v Kilbourne (supra) at 749 cited with approval by Macrossan C.J. in R v Sakail at 316. Lord Hailsham approved of several Scottish cases which required that there be some connection between two offences in the matter of time before a later offence is capable of providing corroboration for an earlier offence. Obviously a question of degree is involved. If the time gap is significant, and there is no other factor necessarily linking the later conduct with the earlier offence charged, the preferable view is that evidence of the later conduct is inadmissible and particularly where the later conduct does not itself constitute an offence. Reference has already been made to the comment by Macrossan C.J. in R v Sakail at 319 to the necessity for "close connection in time and circumstances between the matters charged and the matter admitted". If the incident observed by A was consensual (or not shown to be non-consensual), and if the complainant was then 17, the circumstances of its occurrence are quite different to those surrounding the events the subject of Count 1 when the complainant was nine, and Count 3 when she was 12.
Whilst it is true that the jury could have acted solely on the complainant's evidence, having regard to the warnings in that regard given by the learned trial judge, this in my opinion does not overcome the difficulty associated with the failure of the learned trial judge to deal correctly with the question of corroboration as central as it was to this case.
Whilst it is also true that the jury were entitled to accept A's initial evidence that he was about 7½ years of age at the time he first made the observations such that in that event, his evidence was capable of amounting to corroboration of the complainant's evidence, there was clearly an alternative view of the evidence which, by reason of the foregoing, was in my opinion more likely to have been accepted by the jury. In any event, it is not the function of this Court to determine what view the jury might have taken of any parts of the evidence, had the directions been adequate.
In my opinion, the direction as to A's evidence, being the only evidence advanced as being capable of corroboration, should have been put on two bases:-
(1)if the jury accepted that A was 7½ years of age at the time he made the observations, that evidence was capable in law of amounting to corroboration of the offences charged; alternatively
(2)if the jury came to the view that he was 12½ years of age so that the complainant was then 17 years of age, his evidence of the event described (which was not shown to be unlawful) was not capable in law of amounting to corroboration and should be disregarded by them.
In my opinion, there was a relevant misdirection to the jury. As pointed out by Goddard L.C.J., Byrne, McNair JJ. in Zielinski v R (1950) 34 Cr.App.R. 193 at 197, "If a Judge points to a piece of evidence as being capable in law of amounting to corroboration and it turns out that it is not capable of amounting to corroboration then the conviction may be quashed;...". The question then is whether there has been a substantial miscarriage of justice, having regard to s.668E(1) of the Criminal Code and in particular the proviso thereto.
This is not a case where there is a considerable body of other corroborative evidence as to which the jury was properly directed as occurred in R v Richards & Ors. [1965] Qd.R. 354. Indeed, there was no other corroborative evidence whatsoever even though there may broadly be described, some other evidence giving general support to the evidence of the complainant. The evidence of the complainant's mother and indeed of the appellant himself in a record of interview concerning the occasion when he had his arms around the complainant when she was 7½ years of age, on one view shows an attraction by him for her although it is equally capable of indicating an innocent attraction and not necessarily implicating him in any of the alleged offences. There is also the evidence from the appellant's mother (supported by the statements to that effect in the appellant's record of interview) that "they" told her they wished to marry when the complainant was 16 years of age. This again shows an attraction for each other after the age of 16. Her evidence that she was 15 (at the end of the nine month period after she went to live with her father after she turned 15, when she said he proposed marriage to her), cannot be corroborative of her evidence as it is clear that a complainant cannot corroborate herself: R v Christie [1914] A.C. 545 at 557 per Lord Atkinson; and R v Whitehead [1929] 1 Q.B. 99. For reasons already mentioned, I do not consider the fact that he admitted sexual intercourse with her with her consent after she was 16 as strengthening her evidence in any way as to events in the distant past.
A factor which sometimes demonstrates that there is no miscarriage of justice exists where no application for redirections is made by experienced Counsel acting for an accused person at the trial. However, as the Court of Appeal in R v Morgan (1978) 1 W.L.R. 735 at 740 said: "Nonetheless the judge's duty cannot be circumscribed by whether Counsel does or does not take a particular point in this class of case". That was a charge of indecent assault on a boy aged 11 where a redirection was not sought on the judge's failure in not warning the jury about the risks of convicting on the victim's brother's uncorroborated evidence. See R v Wilson (C.A. 355 of 1994, 14th November 1994) and also the joint judgment of Fitzgerald P. and Davies J.A. where their Honours noted that the fact that no redirection was requested on the basis that the trial judge had failed to give an appropriate warning, was not necessarily fatal to the point's success on appeal. See also per Lee J. at p.5. Also in R v McEndoo (1991) 5 A.Crim.R. 52 the Queensland Court of Criminal Appeal, Connolly J. (Andrews C.J. concurring) at 57 referred to the fact that the failure to ask for redirections is not decisive even though such failure may be a useful indication as to whether a miscarriage of justice has actually occurred.
In this case, there was failure by both Counsel to seek redirections from the learned trial judge over errors made as to the age of the complainant with respect to Count 3 and the fact that His Honour had said that the complainant was resorting to the appellant for cuddles and put up with sex during the occasion when the offence the subject of Count 3 was alleged to have occurred when she was 12. I do not see that in this case, the appellant should be bound by the failure of his Counsel to seek a redirection with respect to A's evidence. This aspect might well have been simply overlooked.
A somewhat similar proviso to s.668E(1) was considered by the Privy Council in Makin v The Attorney-General for New South Wales [1894] A.C. 57, which was contained in New South Wales legislation in a case where a trial judge reserved a question of law for consideration of the judges of the Court. In that case the question was whether or not evidence of criminal acts other than those charged was admissible. That evidence was held to have been rightly admitted. However, at 69, the judgment proceeded:-
"Reliance was of course placed upon the language of the proviso. It was said that if without the inadmissible evidence there were evidence sufficient to sustain the verdict, and to shew that the accused was guilty, there has been no substantial wrong or other miscarriage of justice. It is obvious that the construction contended for transfers from the jury to the Court the determination of the question whether the evidence - that is to say, what the law regards as evidence - established the guilt of the accused. The result is that in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon him is made to depend not on the finding of the jury, but on the decision of the Court. The judges are in truth substituted for the jury, the verdict becomes theirs and theirs alone, and is arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords.
It is impossible to deny that such a change of the law would be a very serious one, and that the construction with their Lordships are invited to put upon the enactment would gravely affect the much cherished right of trial by jury in criminal cases."
Whilst that case dealt with the question of admissibility of evidence, it has parallels to the present case. In my opinion, the appellant was entitled to have his guilt or otherwise determined by a properly directed jury, and not by the Court of Appeal, however convincing the complainant's evidence may appear from the printed record. Furthermore, for a misstatement or misdirection in the summing up to amount to a miscarriage of justice, it must be reasonably possible that without the misstatement or misdirection, the jury would not have returned a verdict of guilty. In such a case there is a miscarriage of justice and a substantial one: Cleland v R (1982) 151 C.L.R. 1. I think that the above possibility exists. Having regard to all of the issues raised at the trial, I am unable to conclude that the jury, properly directed, would necessarily have found beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted. In my opinion, the conviction on Count 1 must also be set aside.
As to (c), the point is whether there should have been a more explicit warning given by the trial judge because of the very considerable lapse of time between the alleged misconduct which the complainant said commenced when she was three or four years of age and the offences charged on the one hand, and on the other hand, the date the complaint was first made to the police some 20 years later with the subsequent trial the following year. His Honour, in directing the jury that they should not accept any witness's evidence unless they were satisfied that it was honest, accurate and reliable, said:-
"That is particularly so here where people are talking about events which occurred many
years ago, and you know yourself that time affects memory."
That was a general warning applicable to the memories of witnesses in general, but His Honour gave no direction concerning the ages of the complainant and her brother who were recalling events which had occurred many years before when they were very young children or concerning the associated dangers as to children's perceptions of what had occurred when they were very young. Whilst it may well be true that the complainant and A gave fairly forthright evidence as might be expected by persons of their ages at the trial, i.e. 29 and 25 respectively, and that the trial judge has a discretion, a suitably framed warning was in my opinion appropriate in the context of this particular case. The categories of cases in which warnings should be given are not closed: see Director of Public Prosecutions v Kilbourne (supra); Longman v The Queen (supra) at 86, as adopted with approval by Dawson J., Gaudron J. in B v The Queen (supra) at 616. See also Longman v The Queen per Deane J. at 100 and per McHugh J. at 107-8.
As to Count 1, there was evidence on which a reasonable jury properly directed could have concluded beyond reasonable doubt that the appellant was guilty of the offence of rape when the complainant was nine years of age. There should be a new trial on that count. I have read the reasons of Macrossan C.J. and Pincus J.A. but remain of this view. However, there should be no new trial with respect to the charge in Count 3.
In the result, the appeal should be allowed, the convictions set aside, a verdict of acquittal entered on Count 3, and a new trial ordered on Count 1.
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