R v SBH
[2008] QCA 264
•5 September 2008
SUPREME COURT OF QUEENSLAND
CITATION:
R v SBH [2008] QCA 264
PARTIES:
R
v
SBH
(appellant)FILE NO/S:
CA No 293 of 2007
DC No 131 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction and Sentence
ORIGINATING COURT:
District Court at Bundaberg
DELIVERED ON:
5 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2008; 18 June 2008
JUDGES:
Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal against conviction allowed
2. Convictions and verdicts set aside
3. New trial orderedCATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of one count of maintaining a sexual relationship with a child, and three counts of rape – where appellant convicted on the basis of evidence given by the complainant, who was his daughter, and the complainant’s brother – where inconsistencies in the evidence given by the appellant’s children – whether a jury acting reasonably could have convicted
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where complainant and her brother made allegations as to the appellant’s conduct in statements made under s 93A of the Evidence Act 1977 (Qld) – where appellant not provided with copies of transcripts of s 93A statements and not advised of children’s allegations – where appellant claimed he did not have sufficient opportunity to instruct his legal counsel – whether the appellant suffered a miscarriage of justice
Evidence Act 1977 (Qld), s 21AA, s 21AN, s 93A
COUNSEL:
The appellant appeared on his own behalf
T A Fuller for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
HOLMES JA: On 12 October 2007, the appellant was convicted of one count of maintaining a sexual relationship with a child (between 1 May 2003 and 11 October 2006) and three counts of rape; the first of the rape offences occurring on 30 September 2006 and the remaining two between 8 October and 11 October 2006. He was sentenced to 12 years imprisonment on the maintaining count and 10 years imprisonment to be served concurrently on each rape count. He appealed against his conviction and sought leave to appeal against his sentence on the grounds that the verdict was unsafe and the sentence manifestly excessive. On the hearing of the appeal (at which he represented himself), he was permitted to add a further ground for the appeal against conviction: that the incompetence of his legal representatives resulted in his not receiving a fair trial.
The Crown case
The complainant’s first disclosures
The complainant was the appellant’s daughter, E, who was born on 22 March 1996. The maintaining count thus related to a period during which she was between seven and ten years old, while the charged rapes were said to have occurred towards the end of that period. The appellant and the child’s mother had been in a de facto relationship of which E and a brother, J, eighteen months older than she, were born. After her parents’ separation E spent alternate weekends and half the school holidays at her father’s house. Her brother did likewise until he turned 11, when he moved to live with his father.
On 12 October 2006, a Thursday night, E was at her mother’s house. On her subsequent account to an investigating police officer she was unhappy there: her stepfather hit her and she was dissatisfied with the excessive amount of housework she had to do. She telephoned the home of a couple who she knew were engaged in emergency foster care, Mr and Mrs Bulberts, and told Mrs Bulberts to pick her up, or she would be "on the streets". Faced with that prospect, Mrs Bulberts complied, and E was allowed to sleep at the Bulberts' house for the night. In the morning after breakfast E asked to stay on and was told she could not, because they only provided emergency accommodation. She informed Mr Bulberts, "I don't want to go back to Dad's because every time I go there he wants to have sex with me".
Later that morning, a police officer who was making enquiries to locate E arrived at the Bulberts' premises. She informed him too, that she wanted to stay at the Bulberts' house and was told that it was out of the question. Mr Bulberts was present for, and took notes of, the conversation between E and the police officer that day. He and that officer, Sergeant Nixon, gave a consistent account of what E said: that her father had had sex with her when she stayed at his house and made her sleep without clothes in his bed with him. He had last had sex with her on the previous Monday (9 October).
E’s s 93A statements
At the heart of the Crown case were two video-taped interviews of E. She emerges from them as an intelligent child with a lively mind and an unusual degree of self-possession. In her first interview, on 13 October, E said that she had run away from her home to the Bulberts (with whom she had stayed previously) because her stepfather was abusive and violent, and she wanted in any case to go to a different school. When asked to talk about her father, she said that every night she spent at his house he made her sleep with him naked and tried to have sex with her. He mistreated her brother, J. when he “wagged” school by taking him by the scruff of the neck and holding him up against the wall. He had threatened both children that if they told anyone he would kill them, and had said that he would like to kill the rest of her family. Once she had asked a friend of her step-brother to pinch her so that she could go to the police station and say that her father had caused the injury, but the police had found out what had really happened.
E had last been to the appellant’s house on the preceding Monday (9 October). By way of explaining what led up to her being there, E said that she had stayed at a friend’s house on Saturday and Sunday night, and “ended up taking their mobile phones with me. ’Cause I’m a bit of a thief sometimes.” When her older step-brother who was supposed to collect her failed to do so, she rang her father on the Monday afternoon, and he took her to his home, where she stayed overnight. On their way home, at about 4.00 pm, he had noticed that she was playing with one of the stolen mobile phones, and took it from her. When they arrived home, some friends were there. They left at about 6.30 pm, after everyone had had dinner. When they left, the appellant asked her how she had got the mobile phone; she lied and said that she had earned it.
That evening, E said, she went to bed “really early”. She was told that she had to sleep in the appellant’s bed, something which had been happening since she was five years old. Asked to explain her statement earlier that day that her father tried to have sex with her, she said,
“he tries and does it with me, but I keep on rolling over, ‘cause I don't like him doing [indistinct] sometimes it does happen.”
Sex was “when a man puts their um private part into a female's private part”. Asked for more description, E said she did not know how to explain how her father had sex with her, but he did it while she was facing away from him. On the Monday night he had had sex with her by “putting his rude part in my rude part”. It was annoying; she did not like people “cuddling up to [her] very hard”.
E went on to say that the appellant also had sex with her over the lounge chair and on the table. The most recent occasion of having sex over the lounge chair was on the last weekend she had spent at his house, at the start of the school holidays. She had arrived on Friday (29 September). Asked on what day her father had sex with her over the lounge chair, E answered “Saturday and Sunday”. Her brother worked in his part-time job at a boatshed until lunchtime on Saturday, and that morning her father had made her bend over the lounge chair, taken off her pants and had sex with her. (This event was the basis of the first of the rape counts on the indictment). As to what she meant by “having sex”, she said,
“he puts his rude part into my rude part and then he starts shoving it. And then once he stops … he comes on me”.
Asked to expand on the last statement, E said it was like “mash potato”. The police officer went through her statement of events with her, and confirmed what she had said and that it had occurred on the Saturday while her brother was working. E went on to explain that about six months previously, while she was having a menstrual period, her father had had sex with her and she began to bleed badly. (This allegation was left as an uncharged act.)
At that point the interview was suspended while the tapes were changed. When the taping recommenced, the police officer reprised what E had said about sleeping in her father's bed and his having sex with her on the previous Monday. He asked whether she could tell him any more about her father having sex with her on the Monday night, and she shook her head. He went back then to Friday, 29 September and asked if anything had happened on that night; E answered that she had slept in her own bed “for a change”. The police officer repeated her account of what had happened on the Saturday and asked her to tell him about the Sunday. This exchange followed:
“… Well, Dad [indistinct] it happened again and I slept with him again then -----
On Saturday night?—No, Sunday night.
Okay. So, Saturday night. Tell me about Saturday night?—Well, I actually slept in my clothes Saturday night so nothing happened on Saturday night.
So, nothing happened on Saturday night?—No. And then Sunday[1] nothing happened because [J] was home the whole day and Dad won't do it in front of [J].
Okay?—that night [J] – I ended up sleeping in my own bed.
On Sunday night?—Yes. That's about it.
Over the following holiday week spent at the appellant’s house, E said, “Nothing really happened … I just slept in my own bed.”
[1]The transcript of the interview recorded this word as “Saturday”, although it is quite clear from the recording that E said “Sunday”. This was one of a number of inaccuracies in the transcript, which led to its not being provided to the jury. The appellant, understandably, was misled by this particular error into a submission that this constituted an inconsistency in E’s evidence.
There was some further discussion about the event six months earlier, when E had her period; she said the appellant had been “shoving his rude part into my rude part” after which she began to bleed. That had occurred on the bed. When asked how her father had had sex with her on the bed, E said “I don't know”. She went on to say that she remembered that her father began doing this when she was about five years and three months old. The first such occasion was in an old house with a dam somewhere, but she could not recall the detail of other occasions between then and the present.
The interviewing officer returned to E's earlier mention of having sex on the table and asked when that had last happened. E said it was the Monday just gone. The incident was explored in this passage:
“On Monday? Tell me about that, having sex with you on the table?‑‑ He put his rude part into my rude part, that's all that I really remember.
Okay. Was this before you went to bed? And where was [J]?‑‑ In bed. I was watching - I was watching Dad make eggs.
Tell me about all about watching Dad making eggs and having sex on the table, tell me everything about that?-- When Dad was making eggs, I told you about having sex on the table. But I'll tell you about when Dad – I was watching Dad making eggs, 'cause I don't go to bed till really late.
Mmm-hmm?-- And I was watching Dad make eggs and like, you get the eggs and you put them into a little container thing.
Mmm-hmm?-- And you get a fork and you just mix them all together and I think you call it okey, something like that.
Mmm-hmm?-- Like a pancake.
Yep, and then what happened?-- Then he started doing it with me on the table, and I went to bed.
Okay, Can you tell me more about him doing it to you on the table?‑‑ I don't really know.”
After that there was some discussion about the pyjamas E was wearing at the time, before the police officer returned to how the incident had happened:
“Well, can you tell me how it happened?-- Well, I sat on the table and I like, hold on like that.
Mmm-hmm?—And there's two chairs that I have to put my legs on, and he stand up and starts to put his rude part in my rude part.
Okay. So you said that you had your bottom on the table? Okay. And you – and there's two others chairs which you put your legs on, and where's Dad at?-- In the middle of the chairs.
In the middle of the chairs, yep. And then what happened?-- He starts doing it with me, having sex.
Okay. When – when Dad has sex with you, what does he do?-- Puts his rude part into my rude part.
Okay. Does he say anything at all?-- No.
All right. And how long did this happen for?-- About two minutes and then he [indistinct] his eggs and then I went to bed.
Okay?-- I don't really want to go back to my dad's house.
And what happened after two minutes?-- And then he went and cooked his eggs, and I went to bed.”
In bed, E said, she slept naked as her father also did. She ignored him initially but he had sex with her. She told him to stop it or she would tell the police; he said she would not dare. (E’s account of the earlier incident of intercourse on the table gave rise to the second count of rape, while the sexual activity in the appellant’s bed was the basis for the third such count.)
On 16 October 2006, E was examined by a medical practitioner, Dr Stephens, who gave evidence at the trial. Her physical findings were consistent with E’s being in the early stages of puberty, and E reported that she had had her first period two months previously. Dr Stephens saw no signs of acute trauma, such as bruising, bleeding or swelling, on E’s genitalia, but she observed three small irregular tears or transsections of the hymen, which she considered had been caused by something passing through the hymen with force; such as a penis, a finger or a small blunt object. It was unusual, Dr Stephens said at the trial, for a child of 10 to have transsections of that nature on their hymen, and they were not in an area of the hymen likely to be injured accidentally.
On 18 October 2006, E was re-interviewed. She made some complaints about her stepbrothers and her stepfather, who, she said raised his fists to her, yelled at her and the other children and threatened to kill her brother. E was asked if there was anything she wanted to say in relation to the matters raised in the earlier interview. She said that when her father was “sexually assaulting” her, as she now termed it, he recorded the event on video, but had since recorded over the tapes. When asked how he had done that she said:
“[Indistinct] yeah?—um, well, he'd put it in the video, like to record a thing -----
Mmm-hmm-- ------ and he'd make [J] shine it on us.
Mmm-hmm?-- When he was sexually assaulting me.
Mmm-hmm?-- And then he'd watch it on TV and then he said [indistinct] like if it was not good, he'd make me do it again and it was – it'd get very annoying.
Okay. And what would he make you do?-- Have sex with him.
And you said that [J] would hold the video camera. How old was [J] when this happened?-- About 11.”
This had last happened about nine months ago. (Immediately after this interview, police obtained some video tapes from a cupboard which had been taken from the appellant's house. One of those videos had a very brief section at its beginning showing a bed, but the balance of the tape had been taped over.)
In the course of this interview, E enquired whether her father was going to get out of jail, because she wanted his bed and television set. She volunteered that one of her stepbrothers had had sex with her somewhere between 10 and 20 times, putting his private part in her anus. And, she said, her eleven year old ex-boyfriend, T, had “done it with [her] once”, on the weekend of 7-8 October, when she had stayed at his parent's house. (This was also the weekend on which E had come by the two mobile phones which in the earlier interview, she said she had taken. In this interview, she said that T’s sisters, who were jealous of her, had put their parents’ mobile phones in her school bag, to get her into trouble. She did not discover they were there until she was at school the following day.) She and T had sex on the Saturday; asked what that involved, E said that T had put his private part into her private part. She was presently wearing the same underpants that she had worn that night; she informed the police officer that they had sperm on them, which might be from T or her father. She had obtained the pants “brand new” from T's sister:
“… And then when I wore them the night after I'd stayed with [T] there was all this sperm and that [indistinct] from me and [T].”
They had not been washed since; she offered them to the police for examination.
The underpants which E had produced to the police were sent for analysis. It was found that there was seminal fluid on them, but because it contained no spermatozoa and no DNA could be obtained from it, no statement was taken from the analyst concerned.
J’s s 93A statements
J was interviewed on 18 October 2006. The relevant questioning commenced in this way:
“So can you tell me why you’ve come in to talk to me today?-- Yeah, what happened to [E].
Okay. Can you tell me everything about that?-- Yep. Every
time [E] came over, Dad would take her into bed and have
S E X with her.
Hmm-mmm?-- If she didn’t want to go in the room, he would let
her go in her bed and he would go into her bed.
Hmm-mmm?-- [Indistinct].
Okay. So .....-- That I know about.
Sorry?-- That I know about, that’s all I know about what
happened with [E].”
The police officer asked if he could tell him what sex was and J responded, “I don’t know much about it”. These things happened when he was in bed at night; he heard a bed hitting the wall, and he did not really know what E and his father were doing. However, E had told him that every time she visited the appellant’s house, the latter made her have sex with him at about 10.00 at night. J was usually home on Saturdays, but on Sundays he went fishing about six in the morning until four in the afternoon. He was asked when E had told him about having sex and he said that it was in January or February 2004. He did not like his father because he had picked him up and thrown him against a wall.
In another interview on 25 October, J reiterated that E had told him that her father had sex with her. Asked when she had told him that, he said at 2.15 on 11 November 2004. The police officer asked how he knew and he said that he had written it down in a book at his mother’s. E had told him that their father made her sleep in his bed and have sex with him every night. Initially he denied ever having seen that; questioned further, he said that he had seen E sleeping and having sex in his father’s bed. When he walked past his father’s bedroom door in order to get a drink, he had seen his father on top of E; both naked, but covered by a doona. He had written that in his diary: on a Saturday, two weeks after the end of the school holidays.
In his diary (which he described in some detail) J had, he claimed, written:
“Dad makes E sleep in her bed every night and has sex with her. They had no clothes on and they were under a blanket.”
He made this entry two days after seeing it occur. The police officer questioned him further on when he had seen this event. He responded that on the weekend after school went back, E had stayed over on the Friday, Saturday, and Sunday and he had seen this happen on the Saturday. His diary was at his mother’s house, but had some trouble finding it because his room was a mess from when he had retrieved his possessions from his father’s house.
E’s pre-recorded evidence
E’s evidence was taken at a videotaped hearing (pursuant to s 21AA of the Evidence Act 1977) in September 2007. Her evidence-in-chief was limited to confirming her name and age and that she had participated in the police interviews. The cross-examination did not explore any of the allegations of rape against her father. E was asked whether she had ever stolen, and admitted that she had stolen money from her father and a mobile phone from her friend. She told her father, she said, that she had earned the mobile phone by doing chores for a person named Katherine who did not in fact exist. The timing of that incident was not the subject of any questioning and it was not suggested that it was relevant in any way to her allegations against her father.
E agreed that she had enjoyed being looked after by the Bulberts, and perceived that if she could stay with them, she “would have good things like good meals and good clothes, a good place to live” which she did not get at either parent’s house. She conceded that making the complaint “had turned out pretty well” for her; she was now in foster care. She had, she agreed, asked a Family Services officer if she could visit her father in jail; that was because she missed him, not because she felt sorry for getting him into trouble. E said that she and J had run away from home once before, as a result of which a police officer named Mary had talked to her, but she had not said anything about her father doing anything sexual to her. She explained a little more about the pinching incident; she did not want to go to her father’s house so she allowed a friend to pinch her arm so as to leave marks, and then went to the police to complain that her father had chased her and injured her. However, they discovered that her friend had pinched her. That was an idea her step-brother and her friend had come up with, not she.
E was asked whether anybody else had “...done anything like this” to her. She nominated T; another boy whom she had gone out with for two days; and an adult called Peter, whose nickname was “Spin the bottle”. Her step-brother, E said, had also touched her and attempted to put his private part into her anus, but that was just the once; it would be a lie to say that it had happened between 10 and 20 times. She repeated that she had sex with her father in the bedroom, in the lounge room and in the kitchen. The appellant had recorded their sexual activity on videotape; initially she said once, but corrected it to “sometimes”; and sometimes her brother J took the video. She concluded by rejecting counsel’s suggestion that she was not telling the truth about the appellant, saying that she knew it was the former’s job to get the appellant out of jail, but her father had “done the wrong things to [her]”. She added, apropos of nothing, that the appellant “had been on drugs and that sort of stuff, just to bring it up.” No application was made to have that remark excised from the tape before it was tendered in evidence and played to the jury.
J’s pre-recorded evidence
J gave evidence on the same occasion; his evidence in chief was similarly limited to formal matters. In cross-examination, he said that he had actually seen the appellant “putting his cock in [E’s] vagina” on every occasion that his sister came to stay. In addition to seeing his father have sex with his sister in bed, he had seen it happen on the kitchen table. J had seen these events since his sister was eight; at that time the appellant had warned him that if he told anyone what he had seen, he would kill him, if he ever got out of jail. That was why J had not told the police he had actually seen his father having sex with his sister. The appellant was aware that J was at the door watching him have sex with E. J said he saw his father naked, while E had a shirt on. His father would try and handcuff his sister by her hands and feet to the bed, but he had never actually succeeded in getting the handcuffs on. Those handcuffs were kept in the ceiling of the appellant’s house and were still there; J had seen them when he had moved out of the house. (A police search soon after J gave evidence found nothing.) He had seen his father and sister having sex both at night time and during the day. J agreed that he hated his “father’s guts”, which he said, was because of what his father had done to his sister and because his father had thrown him against the wall.
In response to questions on the subject, J maintained that he had never had a diary or written anything in one; it would have been a lie if he had said so. It was his sister who had a diary. Reminded of his claims in the police interview, he said he did have a little book in which he used to write things down. He had retrieved the book from his mother’s house and taken it back to his father’s residence after his second interview with the police on 25 October; his father had burned it. (In fact by that time the appellant was already in custody and was not subsequently released).
J said his father had a video camera set up at the end of the bed on which he would record his activities with E. E and his father watched the tapes; this happened every time E came over. He had never filmed his father and E having sex, but he had seen one of those tapes once by accident. He had not told the police officers what he had seen on the tape because he was shy.
The trial
For some reason, on the first day of trial, the investigating officer communicated with the forensic analyst about the finding that E’s underpants had seminal fluid on them, and realised that it might yet be of significance, because the appellant was known to have had a vasectomy, with the probable result that his semen would not contain spermatozoa. After discussions with the Crown, the defence formally admitted that the appellant had undergone a successful vasectomy with the result that he produced seminal fluid devoid of sperm cells. Dr Stephens confirmed that seminal fluid did not necessarily contain sperm. One such circumstance was where a successful vasectomy had been performed Another was this: the median age at which pubertal males produced semen was 12 to 14 years; a boy of that age could produce seminal fluid without sperm cells.
The appellant's former wife, Ms C, gave evidence and outlined the access and custody arrangements for their children. She confirmed that E had spent the weekend of 7-8 October at T's house. She returned home from school on the afternoon of Tuesday 10 October, her father having taken her there. That evening she was, atypically, "very grumpy, very defiant". She was uncooperative, angry and argued about doing her household chores. On the morning of Friday October 13 she could not be found.
The appellant’s “unfair trial” ground
The appellant made a number of complaints of the conduct of his legal representatives which, he said, had resulted in his not receiving a fair trial. No proper instructions had been taken from him; he had not received the transcripts of what his children had said to the police until after the trial and consequently did not know the details of the rape allegations against him; the admission that he had had a vasectomy was made without his instructions and in his absence; he had been told in strong terms that he should not give evidence.
Failure to convey the allegations to the appellant and to take instructions on them
The solicitor who acted for the appellant, Mr Highland, and the barrister who appeared at his trial, Mr Benjamin, both gave evidence on the appeal, as did the appellant himself. From their evidence the following picture of the appellant's dealings with his legal representatives emerged.
The appellant was held in custody from 16 October 2006, having been charged between E’s first and second interviews. Mr Highland said that he first made contact with the appellant by letter dated 4 December 2006, once he had received a grant of legal aid. He did not at any time visit the appellant at the Maryborough Prison where he was held on remand; he agreed that he had told the appellant Legal Aid would not pay him to make the journey. Mr Highland said that if a prisoner wanted a conference with a lawyer, arrangements could be made for a video or telephone link. He, however, depended on counsel's advice as to whether they wished to have a video conference and, in this case, counsel had not expressed any interest in doing so. He had telephone conversations with the appellant, but they did not involve taking instructions.
On 6 December 2006, Mr Highland spoke to the appellant at the Bundaberg police watch house. He had a note that on that occasion he told the appellant about the committal hearing and advised him that there was sufficient evidence for him to be committed for trial. He also said that he would send him the brief of evidence. The appellant, however, maintained that he had received only copies of the statements of Mr Bulbert, his former de facto wife Ms C, and Sergeant Nixon. In particular, he had not at any time been given copies of any transcripts of the interviews of E and J with the police. He first saw those when they were provided to him after the trial.
On 20 March 2007, Mr Highland appeared for the appellant at the committal. Before the hearing commenced, he explained to the appellant the nature of committal proceedings and obtained his instructions to proceed by way of a full hand up of evidence without cross-examination of witnesses. No other instructions were taken at that time. Mr Highland was able to locate on his file a copy of a letter to the appellant of the 20 March 2007, enclosing the statements of Mr Bulbert, Sergeant Nixon and Ms C; it seems probable that the prosecution had supplied those statements at the committal. He could not find any other covering letter which might have accompanied the rest of the brief of evidence. Mr Highland's recollection was that the brief of evidence had been sent, but he conceded at one point that his "only recollection" was that he had told the appellant that he would provide him with a brief of evidence.
At the conclusion of the committal hearing, Mr Highland told the appellant that he needed some specific instructions. At some time subsequently, he received from the appellant a document which commenced “I am writing down what I believe will help my court appearance”. It consisted of handwritten notes, most of which related to the appellant’s earlier relationship with Ms C and access and custody arrangements in relation to their children.
One paragraph of the notes deals with the occasion E referred to in her interview, when she falsely accused the appellant of assaulting her. A further, somewhat bewildering series of incidents is described. After J had misbehaved in various ways, he was placed in the appellant’s custody. He obtained his part-time job at the boatshed and his behaviour improved until “the week of the Bundaberg Show”, when he went to his mother’s house. On that weekend, Ms C allegedly assaulted E, who was placed temporarily in care (presumably with the Bulberts) before being returned to her mother. The following week J disappeared; on his return a week later, a school counsellor informed the appellant that J could not manage his schoolwork as well as his part-time job. (In this court, the appellant explained that in consequence, J was made to give up his job and stay home on Saturdays; a matter of some relevance to the rape charged as occurring on Saturday 30 September.)
To this point in the notes, the dates and order of the incidents described are unclear; one cannot tell, looking at them, whether they deal with events occurring close in time to, or years before, the matters the subject of the charges. The timing becomes less confusing as the appellant goes on to describe the events of Monday 9 October when he picked E up from school and found her in possession of two mobile phones and a charger, which she said she had got from her mother. The following day, a friend rang him to tell him that E had stolen the phones and charger from the place where she had stayed on the weekend. (Here, the appellant said that he had contacted Ms C that afternoon to pass that information on to her, so that a confrontation between E and her mother about the issue was probable.)
The copy of the notes as annexed to Mr Highland’s affidavit included a list of four items which the appellant said would assist with his case. The list read as follows:
“(1) Statement [Ms C] untrue;
(2) Statement Bulpert and Family Services time differences;
(3) Report from prison on time in custody;(4)Attendance records of [J] and [E] from [N] Primary School and [W] Primary School.”
Here, however, the appellant maintained that that list was not written by him and he had in fact sent another longer list to Mr Highland. But the handwriting on the list annexed to Mr Highland’s affidavit is entirely consistent with the rest of the appellant’s material, and there is simply no reason to think that Mr Highland would present the court with a forgery. I have no hesitation in concluding that on this point the appellant is confused and that Mr Highland produced the list which the appellant forwarded to him.
On 21 June 2007, Mr Highland wrote acknowledging receipt of those notes and complaining that the appellant had not provided instructions in relation to the specific allegations made against him. The letter continued:
"For example, you have not informed me of your response to [E's] allegations to the effect that:
·'He makes me sleep without clothes in his bed with him'; and
·'He had sex with me last time I was there'."
In answer to that enquiry, the appellant wrote back and said that both his children had slept in his bed from time to time; E had never slept naked with him and the only time she had been unclothed was when she had wet the bed during the night and he had showered her, changed her and put her back in her own bed; he had never had sex with his daughter and could only guess that his children had suffered some abuse in their mother's home. In 2001, his children had stolen a small amount of money from him and then made false allegations against him which had been investigated and found to be untrue. The appellant ended the letter to his solicitor by saying that if there was anything else he needed to know, the appellant would explain it as best he could.
On 6 September 2007, the pre-recording of the evidence of E and J took place. Mr Highland said he had a note that prior to the commencement of the hearing he and counsel (not Mr Benjamin) conferred with the appellant for 48 minutes. On the appellant's account, his barrister did not at that time take any instructions from him. Instead, he discussed what sentence the appellant would get if he pleaded guilty and what he could expect if he went to trial. Other than that, he explained to him the process of recording the children’s evidence. To some extent that is consistent with what Mr Highland said; he had recorded that the appellant was advised of the process involved, and there was reference to a possible sentence on a plea of guilty. Counsel had confirmed that the appellant wished to maintain his plea of not guilty.
Mr Highland said that counsel had a copy of the notes the appellant had sent earlier. Questioned about whether any instructions were taken, or whether the barrister had asked the appellant about any aspect of the children's interviews, Mr Highland said he had not made any note to that effect. However, he thought that counsel, while interviewing the appellant, was making notes on the various statements of witnesses. When the pre-recording was over, Mr Highland said, he had a brief conversation with the appellant to explain to him what the next procedure would be. He did not take any instructions from him then, and did not see him again before the trial. He wrote to him on 26 September to tell him that he had briefed Mr Benjamin to appear at the trial.
Mr Highland next saw his client with Mr Benjamin on 9 October 2007, the morning of the trial, either in the watch house or at the holding cells at the Court. Mr Benjamin said that was his first meeting with the appellant. He had explained his function as counsel to him, and the way in which the matter would proceed. He did not recall whether he had taken specific instructions in relation to the witnesses to be called. Mr Benjamin explained, however, that by that stage, the children had already given evidence, and it was unlikely that the appellant could assist with instructions as to the evidence of the remaining witnesses, which concerned, in the main, fresh complaint evidence and scientific evidence.
Findings re the provision of the brief of evidence and the taking of instructions
Mr Highland's file contains no covering letter which would confirm his having forwarded the brief of evidence. His recollection of having done so seemed largely dependent on the fact that he had indicated he would. (I should say that Mr Highland seemed to be doing his best, in an entirely frank way, to recall events which were, from his perspective, unmemorable.) All of the information contained in the appellant’s handwritten notes, as the latter pointed out, is consistent with his having access only to the statements he identified as sent to him, with the addition of the particular allegations set out in the solicitor's letter.
I am satisfied that Mr Highland, despite his intentions, did not, in fact, forward the brief of evidence to the appellant and that all the appellant received was the statements which became available around the time of the committal, of Mr Bulbert, Ms C, and Sergeant Nixon. The appellant had never faced charges of this kind before, and his only previous experience as a prisoner was serving four days for unpaid fines 20 years earlier. It is not surprising that he did not appreciate that there should have been more to the promised brief.
In consequence of Mr Highland’s omission, the appellant did not have access to the transcripts of what his children had said to the police officers. Nor was that information provided to him in any other form. He had only the broad allegation, contained in the statements of Bulbert and Nixon, that E said her father had sex with her, the last occasion being on 9 October, together with the information relayed by Mr Highland, that E said he made her sleep in his bed without clothes. The appellant did not have the detail of E’s and J’s allegations and could not have given instructions to meet those allegations prior to the children’s giving evidence.
As to what occurred in the appellant’s conference with counsel immediately before the pre-recording of evidence, it seems probable that at least part of the 48 minutes was taken up in discussing procedure. If any instructions were taken, they must have been brief indeed. It does not seem possible that counsel could, in that time, have gone through the interviews in any detail. The only questioning in the cross-examination which did not seem based on what the children had said themselves in those interviews was the questioning about E’s having wanted to visit her father in jail. That was something Mr Highland could recall the appellant mentioning to him; on what occasion, he could not remember. But there is nothing to suggest that the appellant had given instructions on the content of the interviews. Indeed, from the cross-examination of the two children, it does not seem that counsel himself had an entirely clear understanding of what was contained in the interviews. From some of his questions, it is plain that he had not at any stage listened to the tapes, as opposed to looking at the transcripts, which were in many respects inaccurate. And of course, by the time the trial began before the jury, it was too late; the children’s evidence was already given.
Advice against giving evidence
The appellant said that Mr Benjamin had told him not to give evidence; in the appellant’s words “he told me to keep me [sic] mouth shut, don’t say anything, don’t take the stand, the prosecution’s got nothing and you’ll be going home”. Mr Benjamin said that he had discussed whether the appellant should give evidence and told him he did not think it a good idea because of his tendency to anger, a view with which, Mr Benjamin said, the appellant concurred (and which, from observation of the appellant during the appeal, seems to have been well-founded). He had explained also that if the appellant did not give evidence he would have the opportunity of last address and his evidence was unlikely to add anything to his plea of not guilty.
I do not accept that Mr Benjamin told the appellant he would be going home because the prosecution had nothing, although the latter may have thought that was the tenor of what was said to him. Mr Benjamin’s advice to him to refrain from giving evidence was explicable and given in proper terms, and the appellant accepted it. But it is an unfortunate fact that had the appellant decided to take the witness stand, it would have been only when he heard the tapes of the children’s interviews played at trial that he could have grasped just what he needed to give evidence about. One would hope, to put it mildly, that a decision as to whether to give evidence would generally be made with rather more preparation and consultation.
The vasectomy admission
On the second day of the trial, the Crown made its application for an adjournment to obtain further evidence in relation to the seminal fluid located on E's underpants. The appellant agreed that Mr Benjamin raised the issue with him and that he had instructed that he did not want an adjournment because he had been in custody already for nearly 12 months. But he contended that the admission that he had had a successful vasectomy was made without instructions. All that his solicitor and counsel had asked of him was that if he had a vasectomy in 1996 and he had responded in the affirmative. In fact he was unaware, because he not had any subsequent tests, whether the vasectomy was successful or not. He also maintained that when the actual admission was made he was not in the Court. It was a surprise to him when he read the transcript and found the admission had been made.
Mr Highland could recall the appellant saying that he had never gone back to find out whether his vasectomy had been successful. Mr Benjamin said counsel for the Crown had informed him that she intended to call the doctor who performed the vasectomy to say that it had been a successful procedure. He told the appellant that if he did not dispute the evidence there was some advantage to making an admission; both he and Mr Highland said that the appellant gave instructions to make the admission in the words said in court.
I do not accept the appellant's evidence that he did not give instructions to make the admission, and it would be astounding if he were somehow left forgotten in the cell while court convened and it was made. It does not follow, however, that he is being untruthful; I am inclined to think that the discussion was rapid, and events happened quickly, so that he had simply forgotten precisely what occurred in that regard.
Unreasonable verdict?
There are features of E's evidence which give cause for concern as to her reliability. In her first interview particularly, she made allegations the detail of which varied, at times substantially, in the re-telling. She began the interview with the broad claim that her father made her sleep with him and tried to have sex with her every night. Later, in response to questioning about his making her have sex over a lounge chair when she stayed for the school holiday week, she first maintained that the incident had occurred on both Saturday and Sunday of the first weekend, but subsequently retreated to saying it had occurred once only, on the Saturday morning, and she had slept every night in her own bed. And E was specific in her description of having dinner with the visiting friends on Monday 9 October, afterwards going to bed "really early". Later in the interview, when pressed for detail of her father having sex with her on the table, E altered her account, to saying that it happened on that very night when she stayed up to watch her father cook.
E’s claim in that interview that her father had had sex with her while she was menstruating, six months previously, sits oddly with her account to the doctor that she had had her first period two months before. The description of the appellant’s ejaculate as “mash potato” is curious, and the incident in which she produced her underpants for examination at the second interview was unusual, to say the least. E herself admitted to dishonesty: she had lied about the mobile phone; particularly worrying was her admission to having previously made a false complaint about her father to the police. She had altered her evidence substantially as to the extent of her step-brother's interference with her.
There was, putting J's evidence to one side, no evidence which unequivocally corroborated E. The medical evidence as to trans-sections of her hymen was equivocal; it had to be seen in the light of her statement that other people had had sex with her. The videotape, possibly showing a glimpse of her father's bed, was of no real probative effect. The discovery of seminal fluid on her underpants was equally explicable by her having had sex with T.
J did, in broad terms support E’s account, but there were significant inconsistencies between their evidence, for example as to where E and her father had sex and whether J had videoed the events. More fundamentally, the discrepancies within J's evidence, the plain inventions about the diary and its fate and more particularly the dramatic escalation in his allegations between the two interviews suggested that he, at least, was a very unreliable witness. As the trial judge pointed out, his evidence created a strong impression that he was anxious to say what he thought was required in order to support his sister.
Counsel for the respondent Crown very sensibly acknowledged that conviction depended on acceptance of E’s evidence, since J’s credit was undermined. The task of assessing her evidence is not assisted by the fact that she was not challenged as to her allegations except in the most general terms, and some of the questioning of her elicited nothing but bewilderment; unsurprisingly, because it was based on an inaccurate transcript, not what she had actually said. The deficiencies in E's evidence were, as I have explained, significant. On the other hand, in some respects, E was disarmingly frank about her own failures of honesty, while maintaining at all times the truth of her allegations against the appellant. A good deal may be explained by the fact that despite a rather worldly presentation she was only a child of 10 when interviewed, and came from a most unsettled background. Making those allowances, I conclude that the contradictions in her evidence were not so overwhelming as to say that a jury, properly instructed as this was as to those deficiencies and the need for caution, could not, acting reasonably, have convicted.
Miscarriage of justice in failure to provide transcript and take instructions
However, all of those features made it crucial that the evidence of E and J be thoroughly tested. The appellant's solicitors did not at any time sit down and go through the witness statements with him. Worse, he was not provided with the children's allegations and could not give instructions in any detail. The instructions which he did give were detached from any knowledge of what was being said of him. There were matters which assumed significance only once it was clear what the allegations were.
In particular, the sequence of events with the theft of the mobile phones on the weekend of 7 October concluding with the appellant’s telling Ms C on 10 October what E had done was capable of suggesting a motive to make a false complaint in order to avoid returning to either parent’s house. But the relevant train of events was not made clear in the appellant’s notes, possibly because he was not aware of how it fitted in with E's allegations; and his counsel at the pre-recording does not seem to have grasped its significance. Similarly, according to the appellant, J was grounded on Saturdays as at the end of September; which accords with J's statement in his interview that he was usually home on a Saturday but went fishing on a Sunday. That question of whether J was at home on Saturday 30 September when, according to E, he was away and her father had sex with her, could have been explored had instructions been given.
Miscarriage of justice requiring re-trial
It is perturbing to think that the time and attention given to the appellant’s defence was so scant when the offences with which he was charged were so serious; as is evidenced by his receiving a 12 year sentence, without eligibility for parole for nine years and seven months. The situation results from a combination of human error, the difficulty of access to the appellant in a provincial jail and, I fear, the inadequacy of Legal Aid funding for representation in cases of serious offences. Whatever the causes, one inevitably comes to the conclusion that the failure to provide the brief of evidence to the appellant or in any other way to take instructions on the specific allegations made against him by his children has resulted in a miscarriage of justice. For that reason the appeal against conviction must be allowed and a re-trial ordered.
An obvious means of attempting to correct the injustice would be an order under s 21AN that E and J be required to give further evidence at another preliminary hearing; and possibly, exclusion of the evidence taken under the limitations of inadequate instructions in the pre-recordings of 16 October 2007. However, counsel for the Crown suggested, sensibly in my view, that such orders would be premature; that it would be appropriate for any new defence counsel to have the opportunity to take instructions from the appellant and then decide, firstly, whether to seek a further pre-recording and, secondly, whether the existing pre-recording ought to be placed before the jury in an edited form. That approach has a good deal to commend it; for that reason, I would make no further orders. But I would observe, given the inadequacy of the transcripts, that the appellant should personally be given access to the tapes of the s 93A interviews and the pre-recorded evidence.
There remain two matters worth mentioning, given that a re-trial is necessary. Mr Benjamin mentioned in his evidence that it was apparent the appellant had been remanded in custody because he appeared for the entire duration of the trial in prison issue clothes. Mr Highland, explained that the appellant had no family who would fetch him a change of clothes; so, as he saw it, there was no option but for him to appear in what he wore from the prison. The significance of that is reduced by the fact that it was made known to the jury for other reasons that he had spent at least some time in custody: the fact that his daughter E had wanted to see him in jail was revealed, as was the impossibility of his being at large to destroy J’s book. Even so, it was still, in my view, an unfortunate state of affairs that it was made clear to the jury through his garb that he remained in custody one year after his arrest; and it is difficult to feel confident that his appearance every day in those clothes had no effect on the jury’s perception of him. One would hope that the Legal Aid Office might look into whether there is any means of ensuring that the situation does not recur on the re-trial.
The second issue of concern is the reference in E’s pre-recorded evidence to her father’s having been on drugs. There might conceivably have been a forensic reason not to object to the admission of that comment: it might have been suggested that it showed some animus on her part; but given that it did not receive any mention in counsel’s address it seems more probable that it was the result of oversight. If so, it would be as well if some consideration were given to the matter before such a prejudicial piece of evidence were placed before the jury on the next trial.
ORDERS:
1. Appeal against conviction allowed.
2. Convictions and verdicts set aside.
3. New trial ordered.
FRASER JA: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by her Honour, and with her reasons for the orders.
DAUBNEY J: I respectfully agree with the reasons for judgment of Holmes JA and with the orders proposed.
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