R v S

[1995] QCA 560

IN THE COURT OF APPEAL	[1995] QCA 560
SUPREME COURT OF QUEENSLAND

C.A. No. 413 of 1995

Brisbane

Before	Fitzgerald P. Davies J.A. McPherson J.A.
[R. v. S]

T H E Q U E E N

v.

S

(Appellant)

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered: 14/12/95

Separate concurring reasons for judgment by each member of the Court.

APPEAL AGAINST CONVICTION ALLOWED. A NEW TRIAL ORDERED.

CATCHWORDS	CRIMINAL LAW - INDECENT DEALING - Whether statements should, in the exercise of the trial judge's discretion under s.98 Evidence Act, have not been admitted - Whether independent evidence could amount to corroboration of the one incident - Whether "incident" was described in sufficient detail as to make it possible to identify some element or part of it that the independent evidence is capable of confirming.
Counsel:	K. Copley for the appellant D. Bullock for the respondent
Solicitors:	Winning & Sorensen for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	5 December 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 14/12/1995

The circumstances giving rise to this appeal are set out in the

reasons for judgment of McPherson J.A.

It is necessary, at the outset, to identify the incident which

was the subject of the charge against the appellant. As McPherson J.A. points out, an accused person is placed in a

position of considerable difficulty, and potential unfairness,

when an offence is alleged to have occurred on an unspecified date during an extended period without any detail which might

relate the offence to a particular occasion. That difficulty is greatly exacerbated once a suggestion is made that witnesses to

the offence alleged might be speaking of more than one incident.

For example, the question immediately arises whether the offence charged, of which the accused person will in the ordinary course of events be acquitted or convicted (and punished), relates to the incident spoken of by one witness or the incident spoken of

by another. It is not an answer to the dilemma that, whichever

incident is the subject of the charge, the evidence of the other

witness might also be admissible in proof of that charge.

In the present case, there is no justification for proceeding on the footing that there might have been two offences committed by

the appellant. Other considerations aside, the evidence of the

complainant and her brother was clearly related to a single occasion. The complainant’s evidence referred to a single incident at which her brother was present, and his evidence also

related to the only occasion at which he was present when the complainant was indecently dealt with by the appellant. The prosecution case was directed to proof of that incident on that

occasion.

It follows, in my opinion, that the judge misdirected the jury, the trial miscarried and the appeal must be allowed and the

conviction quashed.

As McPherson J.A. has stated, the question whether a new trial

should be ordered is one of some difficulty. The charge against the appellant is related to the incident of which the complainant

spoke when interviewed by police. If her tape recorded statements were admitted into evidence they could not, without other cogent evidence, safely support a conviction. The only other available evidence is that of her brother, whose description of events differs significantly from the

complainant’s and contains inconsistencies when different account
which he has given are compared.
Nonetheless, provided that it generally accepted the

complainant’s brother’s evidence, a reasonable jury could rationally accept to the requisite standard of satisfaction the complainant’s statement that she was indecently dealt with by the appellant, although she cannot now remember the incident and was confused or mistaken in her description of what occurred in her police interview.

In the circumstances, I agree that a new trial should be ordered,

leaving the decision whether or not to proceed to the Director of

Public Prosecutions.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 14th day of December 1995

I agree with the reasons for judgment of McPherson J.A.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 14th day of December 1995

The appellant was convicted after a trial in the District Court at Rockhampton of a single count of having indecently dealt with a child on a date unknown between 1 January 1991 and 20 November 1992.

At the time of the incident alleged to have constituted the offence the complainant lived with her mother and her older brother in a house referred to in evidence as the brown house because it had been painted with sump oil to keep the termites down. It was in that house that the offence is said to have been committed. The appellant was a frequent visitor there. The complainant's mother said he used to come there once a week, or perhaps as much as two or three times a week. He had, she said, "the full run of the house" except for the mother's bedroom and the children's bedroom. Sometimes the appellant was left alone with the children when the mother was outside the house attending to washing or doing some gardening. According to the complainant's brother's evidence, the incident occurred when their mother had gone to town.

The complainant was born on 15 June 1988. At the time of the incident she would have been between 2 years 9 months and 4 years 5 months old. The incident was not reported to her mother until 11 August 1994, which was at least 1 year 9 months after the incident and might have been as much as 3 years 5 months after it. On 12 August 1994 tape recorded statements were taken by the police at Theodore from both the complainant and her brother. The trial took place some 13 months after the interview, at a time when the complainant was a little over 7 years old and her brother was 10.

The statements were admissible and were admitted in evidence at the trial pursuant to s.93A(1) of the Evidence Act 1977. It was submitted that they ought, in the exercise of the trial judge's discretion under s.98 of the Act, not to have been admitted; but we do not consider that his Honour's discretion miscarried in admitting either of them, even though, as it emerged at the trial, the complainant had no independent recollection of the incident itself: cf. Re Morris (C.A. 390 of 1994), at pp.6-7.

A major problem confronting the prosecution at the trial was, however, that the complainant's account of the incident in the tape recorded interview (ex. 1, and the enhanced version of it which is ex. 2) differed from the description given by her brother both in the tape recorded interview with him (ex. 4) and in his oral evidence at the trial.

The complainant said that the appellant had touched her "one time" on "my private". He had done this in her mother's room to which he had taken her while her mother was outside talking to somebody. There he had pulled her pants down while she was lying on the bed and he stuck his dick near her private. At the time he had, she said, had his blue working shorts on, but had taken them off and was "laying on top of me". The bedroom light was not on, but there was a light.

The brother's account of it was different. In ex. 4 he was recorded as saying that the incident had taken place in the complainant's room at night. The appellant, who had his old clothes on, had called the complainant in there and the brother had watched them. She was lying on her bed and the appellant was kneeling on the floor. He watched the appellant get his tongue and "lick her out", by which he meant "put it near her pussy".

The evidence by the appellant's brother at the trial was to substantially the same effect as ex. 4, although there were some differences as well as some further detail. He said the complainant was getting out of the bath and had a towel round her. The appellant was there and he went into her room. She was going to get dressed by putting her undies on when the appellant walked in and tried to take them off. He pulled them off and knelt in front of her. The brother was standing near the door, and the appellant's head was in the way, but he saw the appellant licking the complainant's private. The appellant noticed him standing there watching, and told him to go away.

There were some discrepancies in the two accounts that were given by the brother; but judging by the printed record, he gave his evidence persuasively, and the jury could fairly have considered him a reliable witness. The problem is, however, that the descriptions of what happened and where it happened that were given by the complainant and her brother differ so widely that they appear to refer to two different incidents on separate occasions. Both the activity alleged to have been carried out by the appellant and the room where it took place were different.

The learned judge drew the attention of the jury to the possibility that two separate incidents were being described. He initially directed them in effect that if they considered that two quite different incidents were involved, then the evidence from the brother of the complainant was not capable of amounting to direct corroboration of her evidence, although it might nevertheless be useful because the incident the boy had described "would be consistent with the accused man's conduct towards her as she described, although inconsistent with her evidence that such an incident occurred only once". Evidence of another such incident between the appellant and the complainant, his Honour went on, could tend to make her statement of the accused's conduct towards her more credible and so "would serve to allay the natural concern that her evidence was either mistaken or a fabrication". Later, in the course of giving redirection, the learned judge added that another incident like that "could demonstrate on his part a sexual interest in [the complainant], although being inconsistent with her evidence that such an incident occurred only once". It was, as his Honour pointed out, possible that the complainant had completely forgotten the incident her brother described.

So far, we would be prepared to indorse his Honour's approach to the matter. However, the difficulty remains that the possibility was also put to the jury in the course of summing up that what the two children were describing was in fact one and the same incident. In that event, his Honour said, the brother's evidence might provide direct support for the complainant's evidence that an incident occurred between herself and the appellant. In redirecting the jury, his Honour stated the position as follows:

"One possibility is that both children were attempting to tell the truth and recall the same incident ... if that were the case, then [the brother's] evidence provides direct support for [the complainant's] evidence to the police officer that an incident occurred between herself and the accused because on that view of the facts [the brother] would have witnessed the same incident although he did not give any evidence of seeing the things that [she] described when she was speaking to the police".

With respect, we have considerable difficulty in accepting the validity of this approach to the matter. It may be that his Honour was intending to convey to the jury that the brother's evidence related to the same incident but referred to a part of it that was quite different from that described by her. If that was the intention, the learned judge did not explain it to the jury in so many words. Without some such explanation, it seems impossible to regard the brother's evidence of what he saw as capable of corroborating the complainant's statement about what happened in the course of the same incident. It is no doubt true that in order to be corroborative it was not necessary that the independent evidence coming from the brother should have been confirmatory in every particular of the complainant's account of what happened. It would be enough that it did so in a material particular; but it must be capable of going at least as far as that. In the present case it is not possible to identify any material particular of the complainant's statement that was confirmed by her brother's evidence. To speak of it as confirming or tending to confirm evidence about an "incident' is not sufficient. An "incident" must be described, and described in sufficient detail as to make it possible to identify some element or part of it that the independent evidence is capable of confirming. Otherwise the independent evidence tends only to show that there was some other and separate incident from that which is alleged to constitute the offence.

In the present case the underlying difficulty at the trial stemmed largely from the imprecision with which the particular occasion of the alleged offence was identified. The period of time within which it was supposed to have taken place covered a span of almost two years. There was nothing apart from the allegation itself to distinguish the occasion in question from any other day during the same period. That is not infrequently so with offences alleged to have been committed against small children, who cannot be expected to know or remember particular dates in a year. Sometimes the difficulty can be solved by relating the occasion to a particular external event which the child witness can recall, and which can then be fixed by evidence of some other witness and so objectively verified. Without some such evidence, the trial tends to throw up problems of the kind discussed by the High Court in S. v. The Queen (1989) 68 C.L.R. 266 and R. v. F (C.A. 489 of 1994). The accused is placed in the quandary that even if he gives evidence he can effectively do little more than deny that he has ever done anything of the kind alleged on any occasion. He is deprived of any real opportunity of establishing an alibi. Confronted with the detail in which the prosecution witnesses may claim to describe the event, his denial that anything like that ever happened tends to look not only bare but lame. There is thus a real risk of injustice to someone who happens to be innocent.

In the present case the problem for the defence was exacerbated by the difficulty of not knowing whether what was being described was one incident or two. Particulars identifying the incident charged were apparently not sought, but it seems clear that at the trial counsel for the prosecution elected to treat the evidence as relating to only one incident. In the course of redirection the trial judge told the jury that counsel for the Crown accepted that, before they could convict, they would need to act on the complainant's account of what occurred, and so be satisfied of it beyond doubt. There can be no question about that; but, according to what the judge told the jury, counsel had also gone on to say that the complainant's statement was corroborated by her brother's evidence because it showed that the appellant had "some sexual interest" in the complainant.

We do not consider that showing some sexual interest in the complainant was capable of corroborating her account of what happened on the occasion she described unless the jury were first satisfied that her brother's evidence related to the same incident as she described . Even then, for reasons we have already stated, the disparities between the accounts given were too great to enable his evidence to be capable of directly corroborating her statement in any material particular. It is a possible explanation that what the brother saw was a different stage, either earlier or later, of the same incident. There are some self-evident problems in approaching the evidence in that way; but for the present it is enough to say that it was not an explanation that was squarely put to the jury for their consideration at the trial. Without that being done, it remains correct to say that the brother's evidence was not capable of corroborating her statement in ex. 1.

The appeal against conviction must therefore be allowed. We have considered rather anxiously whether or not a new trial should be ordered in view of the time that has elapsed; the apparent difficulty of fixing the occasion with any degree of precision; the state of the complainant's recollection; and the ordeal for her that a second trial must inevitably entail. On the other hand, her brother's evidence appears to be not wanting in impressive detail and cogency. Going by the record, there is evidence on which a jury, properly instructed, could fairly convict the appellant. In these circumstances the decision whether or not to proceed with the indictment ought, we think, properly to rest with the Director, who will doubtless arrive at it after bearing in mind the considerations mentioned in these reasons.

The appeal against conviction is allowed. A new trial is ordered.