R v T

[2003] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

R v T [2003] QCA 104

PARTIES:

R
v
T
(appellant)

FILE NO/S:

CA No 326 of 2002
DC No 227 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

14 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2003

JUDGES:

McPherson JA and Mackenzie and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed
Convictions on counts 1, 2 and 5 quashed and a verdict of acquittal entered on those counts

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION –  APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where  appellant convicted on 3 counts and acquitted on 6 counts of indecent dealing – where guilty verdicts stood solely on complainant’s testimony – where  acquitted where the acts alleged occurred in the presence of others – whether  guilty verdicts unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether adequate direction was given regarding the effect of not acting on the complainant’s evidence on some counts on her credibility generally

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether evidence that the complainant made a complaint to now deceased relative prejudicial

M v The Queen (1994) 181 CLR 487, applied
MFA V The Queen (2002) [2002] 193 ALR 184, cited

COUNSEL:

S L Kissick for the appellant
B G T Campbell for the respondent

SOLICITORS:

Don McMillan Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MCPHERSON JA: I agree with the reasons of Mackenzie J. The appeal should be allowed and the verdict on counts 1,2 and 4 should be set aside. On each of those counts, verdict and judgment of acquittal should be entered.

1. MACKENZIE J:  This is an appeal against conviction on three counts of indecently dealing with a girl under 14.  The appellant was tried on five counts of indecent treatment of the same girl while she was under 14, and five counts of indecent treatment of the girl under 16.  The offences allegedly occurred between 1977 and 1987, a period when the complainant was between 7 and 17 years of age.

1. At trial, one count of indecent treatment of a girl under 16 was not proceeded with after the Crown Prosecutor came to the realisation that the offence appropriate to the facts, wilful and unlawful exposure of a girl under 16 to an indecent act, did not exist at the time the offence was alleged to have occurred.  The appellant was convicted of counts 1, 2 and 5 on the indictment and sentenced to two years imprisonment.  Counts 1 and 2 occurred on the same day between 31 December 1977 and 1 January 1979.  The offence alleged in count 5 occurred between 31 December 1979 and 1 January 1982.  The girl was born on 1 January 1971.

1. The first and second counts on the indictment, for which he was convicted, occurred when the victim was staying at the appellant’s house and when the appellant had sent his own children away on an errand to a shop.  The offences occurred against a background of the appellant having on a previous occasion shown the victim a pornographic magazine whilst she was at his home and the hiding place for that literature. The first offence involved making the victim place her hand on the appellant’s penis for the purpose of masturbation.  The second offence occurred later the same day when the appellant’s children had again been sent to the shop.  On that occasion the victim was forced to perform oral sex on the appellant.

1. The offence in count 5 occurred when the victim was aged 9 or 10.  It also occurred at the appellant’s house.  In this case, however, the victim’s father who suffered a bowel condition was in the house but in the toilet at the time when the victim was tricked into entering a bedroom with the appellant where she was made to masturbate him.

1. The jury acquitted the appellant of counts 3, 4, 6, 7, 8, and 10.  Count 9 was the count terminated by nolle prosequi.  With regard to counts 3 and 4, the offences were alleged to have been committed on an occasion when the complainant and the appellant were in a car along with others at the drive-in theatre.  Count 3 relates to an allegation that the appellant had the complainant sit on his lap and placed her hand inside his pants on his penis.  Count 4 relates to an allegation that after the movie had finished and they were driving home the appellant put his penis into her mouth when she was lying with her head on his lap.

1. Count 6 related to an occasion when the complainant, along with other children, was intending to sleep in a tent in the backyard of the appellant’s residence.  The complainant had gone to sleep in a sleeping bag but woke when the appellant and the complainant’s father also entered the tent to stay for the night.  It was alleged that the appellant lay beside the complainant, put his hand into her sleeping bag and touched her on the genitals inside her underwear.

1. Counts 7 and 8 related to an occasion when the appellant, the complainant, and others went camping.  With regard to count 7, the complainant was sleeping in a tent with the appellant and his wife.  During the night the complainant woke and discovered the appellant touching her genitals.  At or about that time the appellant’s wife got up to go to the toilet and the complainant left the tent with her but made no complaint.  Count 8 allegedly arose from the appellant taking the complainant and his daughter to a bakery, the owner of which the appellant knew, one night. During the return trip from the bakery it was alleged that the appellant took the girl’s hand and placed it on his penis.

1. Count 10 allegedly occurred when the appellant took the complainant for a ride on a motorcycle.  Whilst she was riding as pillion passenger and holding him around the waist the appellant allegedly moved the girl’s hand on to his groin on the outside of his clothes. 

1. With respect to counts 1 and 2, which happened within a short time of one another, there was no evidence directly supporting or casting doubt upon the complainant’s evidence.  The conviction therefore depended on the jury accepting her as a reliable and truthful witness.  There was some independent evidence, that was more peripheral to the issue of whether the offences occurred than in the cases of counts 3, 4, 6, 7, and 8, suggesting that the children who had allegedly been sent to the shop could not have gone by the route the complainant had said. There was no evidence settling that issue  decisively.  With respect to count 5, conviction depended entirely upon acceptance of her evidence beyond reasonable doubt.

1. The grounds of appeal are as follows:

(a)The verdicts of guilty are unsatisfactory, considering that the applicant was acquitted of 6 further counts and the Crown case stood solely on the testimony of the complainant

(b)The learned trial judge failed to adequately direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count, ought to be taken into account in assessment of the complainant’s credibility generally.

(c)Evidence that the complainant told a person about one incident, such alleged recounting not constituting fresh complaint, was prejudicial and resulted in the trial being unfair.

1. Ground (c) arises from an answer given when the complainant was under cross-examination by defence counsel in a series of questions designed to establish that she had not complained about the incident in count 5 to her father or mother.  After several questions had been asked in this vein she said that she had told her cousin  who is now deceased.  Cross-examining counsel immediately put to her that she had not told anyone about the incident.  She gave a non-responsive answer and the questioning moved on to establish that she had not told her mother. 

1. At the end of the witness’ evidence defence counsel said during the discussion of wider issues that he had been very specific in his questioning about whether she had told her father or mother.  He said that the evidence had come as a surprise but the issue could not be pursued for fear of “making the trial perhaps unfairer”.  The learned trial judge made a comment that suggested that she considered that the answer obtained was one of the hazards of cross-examination.  There was no application to discharge the jury. 

1. In the course of summarizing the facts with regard to count 5 the learned trial judge mentioned the evidence that the complainant’s cousin had been told of the offence.  Later in a general direction concerning the absence of complaint, the evidence was referred to again as the “only evidence that she told anyone about things that were happening”.  The learned trial judge pointed out that the jury had not heard from the cousin.  She directed that the absence of timely complaint needed to be considered in relation to the complainant’s credibility. 

1. There was no evidence that the complaint to the cousin was timely.  There was no express direction given that it was not recent complaint nor that it could not be used to establish the complainant’s consistency.  It is purely speculative whether the evidence had any influence on the jury’s view of the complainant’s evidence on count 5 but given the nature of the direction it is equally impossible to entirely dismiss the possibility that the direction given may have left the jury with the impression that it could use the evidence of the complainant in that regard with regard to credit.  However it is unnecessary to resolve whether the trial miscarried because of this because of the conclusion reached in relation to the wider issue of the different verdicts. 

1. The unusual feature of the case is that in all instances where there was evidence that the acts described by the complainant occurred in the direct presence of other people a verdict of not guilty was returned.  In one instance (count 10) where the verdict was not guilty, the act described occurred when only the appellant and the complainant were present.  This verdict may be put aside as a case where the jury may well have thought that, in the circumstances in which the alleged offence occurred, the complainant had misinterpreted the nature of the act and therefore the jury was not satisfied beyond reasonable doubt.  On the other hand the instances where verdicts of guilty were returned were all occasions when only the appellant and the complainant were present. 

1. In MFA v The Queen (2002) 193 ALR 184 the High Court reviewed the state of authority concerning the proper approach where it is argued that the verdict is unreasonable or cannot be supported having regard to the evidence. It was re-affirmed that the test was that expressed in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487, 493 as follows:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

1. In the course of analysis of the issues, the respective joint judgments of Gleeson CJ, Hayne and Callinan JJ and McHugh, Gummow and Kirby JJ referred to MacKenzie v The Queen (1996) 190 CLR 348, Jones v The Queen (1997) 191 CLR 439 and R v Markuleski (2001) 52 NSWLR 82. With specific reference to cases involving sexual offences Gleeson CJ, Hayne and Callinan JJ said the following:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant’s evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”

1. McHugh, Gummow and Kirby JJ said the following at 203-204

“[85] … In judging suggested inconsistency, this court said in MacKenzie that ‘if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.’  The court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act ‘in accordance with strictly logical considerations’ or even ‘in accordance with the strict principles of the law which are explained to them’.  Juries sometimes give effect to ‘their innate sense of fairness and justice’ as well as to their sense of proportion and compassion.

[86]       Nevertheless, cases do arise where different verdicts returned by a jury represent ‘an affront to logic and commonsense’ and suggest a compromise in the performance of the jury’s duty.  Such a conclusion ‘depends upon the facts of the case’.  There can be no ‘hard and fast rules’ except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission.”

1. Later on the same page they said the following:

“[89]… We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot.  It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.  All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.  Jones was a very fact-specific case.  Indeed, all such cases are highly fact-specific.”

1. They also said at 206 that upon the application of the test in M v The Queen, the operation of the principles in MacKenzie v The Queen and the significance of the decision in  Jones v The Queen  the court was speaking with a single voice.  When the question is addressed whether there is a logical and reasonable basis for sustaining the differentiation the jury drew in this case it is difficult to so find  unless it is accepted that there was a basis upon which the jury could properly convict on the counts where there was no evidence rendering the commission of the offences less likely but to acquit where there was evidence of that kind.  Counsel for the respondent suggested that the rationalization was that the jury were prepared to accept the truthfulness of the girl but only where there was the additional factor that she said that the offence happened in circumstances where there was little risk of him being detected. 

1. It can easily be accepted, as MFA v The Queen points out, that in a case where there is an acquittal on counts where there is no supporting evidence but convictions on counts where there is such evidence there is a logical and reasonable basis for the verdicts and that they can stand together.  That outcome is often related to the issue of proof beyond reasonable doubt.  The present case has the inherent difficulty that even giving full weight to what is said in MFA v The Queen the outcome implies that the jury was only prepared to convict in cases where there was no other person present who might observe the offences being committed, even though the complainant had said that some were committed in those circumstances but others were committed in the presence of others.   To convict of offences where there was no evidence that others were present and might see suggests that, at best, the jury was prepared to accept the complainant as a basically honest witness but not to convict on her evidence if there were circumstances relating to the way the offences were said to have been committed that left the jury in doubt that the offence occurred. 

1. In my view, the consequence of this is that in practical terms the jury was requiring the appellant, in cases where there was no evidence in the complainant’s account or from another source, to point to something casting doubt on his guilt.  In practical terms, by reasoning in this way, the jury perhaps unconsciously but impermissibly cast an onus on the appellant to disprove guilt.  Had the jury perceived the flaw in their reasoning, the proper verdicts would have been not guilty on all counts.  In the circumstances I am satisfied that the verdicts on counts 1, 2 and 5 cannot stand.  The appeal must be allowed.  The remaining question is whether an acquittal should be entered or a new trial ordered.  Because of the basis upon which the convictions are to be set aside it is in my view inevitable that a verdict of acquittal should be entered. 

1. I would allow the appeal, quash the convictions on counts 1, 2 and 5 and enter a verdict of acquittal on them. 

1. PHILIPPIDES J: I agree with the reasons of Mackenzie J and with the orders proposed.