R v Stewart

[1992] QCA 266

IN THE COURT OF APPEAL  [1992] QCA 266

SUPREME COURT OF QUEENSLAND  Appeal No. 165 of 1992

THE QUEEN

v.

S

(Appellant)

JUDGMENT OF THE COURT

Delivered the 21st day of August, 1992

The appellant was convicted in the District Court, Gladstone of attempted rape and two counts of indecent dealing.  The offences related to a fourteen year old girl.  This appeal is against the convictions.  An application for leave to appeal against sentence was not prosecuted and was refused by the Court at the hearing.

The principal Crown witness was the complainant (K).  Her evidence was that she and her twelve year old school friend (S) arranged to stay the night at S's grandparents' home on 15th February, 1991.  The appellant who was S's uncle, also lived there.  The girls went skating and arrived home at about 11.00 p.m. or 11.30 p.m.  On the suggestion of the appellant he and the girls went next door for a swim in a neighbour's pool.  During the swim the appellant wore no clothing.  The appellant wrapped a towel around himself after leaving the pool.  When climbing over a fence on the way back he called K back and asked her to hold the towel while he got over the fence.  He again covered himself with the towel and returned home with them.  Eventually, the girls went to bed in separate bedrooms and went to sleep.  The complainant's evidence on these matters was substantially confirmed by her school friend who, however, had no knowledge of subsequent events.

K's evidence was that she was then visited by the appellant who against her will committed a number of indecent assaults upon her, carried her outside the house and proceeded to have sexual intercourse with her against a wall.  The evidence raises some doubt on the question of penetration, and the jury found him not guilty of rape but guilty of attempted rape, and guilty of two indecent assaults.

On the following Monday morning at school the complainant told a school friend what had occurred, in circumstances capable of being regarded as a recent complaint.

When the appellant was interviewed by the police on 31st October, 1991 he claimed to have gone to bed before the girls came home from skating.  He gave evidence that he had been drinking with a friend during the afternoon, that they had left the hotel at closing time and the next thing he remembered was waking up in bed next morning.  He denied going swimming with the girls in the neighbour's pool.  His friend gave evidence that they had left the hotel at 10.15 p.m. and that the appellant was drunk.  His parents also gave evidence that he arrived home from the hotel heavily intoxicated and that he fell asleep at a table in the rear room.

Upon the appeal leave was sought to add the ground that "the learned trial Judge did not adequately direct the jury with respect to corroboration."  The Court permitted the ground to be argued, but reserved the question whether leave should be granted.

The only other ground argued was that the learned trial Judge failed adequately to put the defence case and that the summing up lacked fair balance.

As to corroboration, it was not suggested that there was no evidence capable of amounting to corroboration or that His Honour erred in selecting those parts of the evidence that could be so regarded.  Plainly evidence supporting the preliminary events in the swimming pool, and tending to show that the appellant consciously lied in denying such incidents were capable of being put as potential corroboration.  Counsel submitted that His Honour erred in failing to use the phrase "dangerous to convict" in the course of warning the jury of the need for corroborative evidence.  His Honour instead used words such as "it is prudent to look for" such evidence, and "it is necessary in cases of sexual misconduct that you keep the warning in mind", and that if not satisfied that K's evidence was corroborated "you should in line with the warning I have given you, scrutinise it carefully".  This point was not in the end pressed, and we think that in the context of this particular summing up there is no merit in the point.  It is not necessary that any particular formula be followed so long as the warning is clear enough.

The real complaint insisted upon by counsel for the appellant in relation to the summing-up with respect to corroboration was that His Honour failed to identify the reasons why corroboration is regarded as desirable.  Reliance was placed upon R. v. Button 1992 1 Qd.R. 552, 553, 560. The reason for the Rule, concisely stated in Kelleher v. The Queen 1974 131 C.L.R. 534, 553 is that the experience of the Courts has been that in some sexual cases people tell an entirely false story which is very easy to fabricate and extremely difficult to refute. In Button above, Macrossan C.J. observed that

"there is now considerable support for the view that some explanation of the reason for the warning of the danger should be incorporated since otherwise the point of the warning may be missed by the lay jury who may not in consequence give appropriate consideration to the danger which is involved" (p.553).

In the same case Byrne J. observed:-

"Desirable though it is that the summing-up exposed for the jury's consideration the rationale for the warning, there cannot be fixed prescriptions in which to state it."

That case was concerned with directions concerning corroboration of an accomplice.  Although that situation is analogous, the reasons for such directions in such cases are differently based.  No doubt a summing-up will always be strengthened if a Judge not only directs a jury of the need to approach a case in a certain way, but also tells them why the law considers such directions to be appropriate.  This seems to be so whether one is concerned with a sexual case such as the present, or a case involving an accomplice (as in Button) or a case involving the need to scrutinise evidence of identification (as in Sainsbury C.C.A. unreported 13th December, 1991 and R. v. Duffy C.A. unreported 23rd March, 1992).  These decisions underline the requirement that summings-up be tailored to the needs of the particular case and that a slavish insistence upon a formula, or a statement of reasons for the rule, is not necessary.

In the present matter the directions on corroboration were reasonably extensive and their effect was sufficiently emphatic.  The present case was not one in which either the evidence of the complainant or the evidence in corroboration could be described as weak or marginal.  It is not suggested that there are any important deficiencies, inconsistencies or improbabilities in the complainant's evidence or that there was any discernible reason for her making a false complaint.  The present matter is not one in which the failure to state the reasons for the rule should be regarded as constituting an error, which could have led to any miscarriage of justice, especially since there was no application for a redirection at the trial.

There remains the question whether His Honour failed properly to put the defence.  In the end the only point of complaint was that at one part of his statement of the defence case, His Honour made a dismissive comment, namely "the thought may occur to you that if S was going to lie about matters of that evening, why she may not go further and give some evidence, lying, or false evidence, of in fact witnessing something happening to K".  This was a comment well within the discretion of the learned trial Judge to give.  His Honour summarised the defence's submissions at some length, and other than for the above comment, did not do so in a disparaging manner, or state the points for the apparent purpose of demolition.  The present case does not nearly approach the level of imbalance or failure to put the defence case that would call for appellate interference (cf. R. v. Schulz C.C.A. unreported 19th April, 1991).  In our view the application for leave to add the additional ground should be refused and the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  Appeal No. 165 of 1992

Before the Court of Appeal

The President

Mr. Justice Davies J.A.

Mr. Justice Thomas

THE QUEEN

v.

S

(Appellant)

JUDGMENT OF THE COURT

Delivered the 21st day of August, 1992

MINUTE OF ORDER:        Application for leave to add additional ground refused and appeal dismissed.

CATCHWORDS:                 Criminal law - sexual offences - corroboration - whether necessary to state reason for traditional warning.

Counsel:D. Bullock for the Crown

A. Rafter for the Appellant

Solicitors:Director of Prosecutions for the Crown

Legal Aid Office, Queensland for the Appellant

Hearing date:  10th August, 1992.

N THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  Appeal No. 165 of 1992

THE QUEEN

v.

S

(Appellant)

_______________________________________

The President

Mr. Justice Davies

Mr. Justice Thomas

_______________________________________

Reasons of the Court delivered on the 21st day of August, 1992

_______________________________________

APPLICATION FOR LEAVE TO ADD ADDITIONAL GROUND REFUSED AND APPEAL DISMISSED.

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