R. v. T

[1994] QCA 45

THE COURT OF APPEAL  [1994] QCA 45

SUPREME COURT OF QUEENSLAND

C.A. No. 312 of 1993

Brisbane

BeforeMacrossan C.J.

McPherson J.A.
Pincus J.A.

[R. v. T]

BETWEEN

THE QUEEN

v.

T

(Appellant)

Macrossan C.J.

McPherson J.A.

Pincus J.A.

Judgment delivered 18.03.94

Reasons for judgment by the Court

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APPEAL AGAINST CONVICTION DISMISSED.

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CATCHWORDS      CRIMINAL LAW - EVIDENCE - admissibility and relevance in sexual offence - Whether evidence of anal fissures in child admissible.

CRIMINAL LAW - EVIDENCE - Corroboration - Flight - Consciousness of guilt - Whether absconding on bail corroborative - Whether consciousness of guilt must be proved beyond reasonable doubt - Discussion of Shepherd v. The Queen (1990) 170 C.L.R. 573.

Counsel:T. Carmody for the appellant

P. Rutledge for the respondent

Solicitors:Legal Aid Office for the appellant

Director of prosecutions for the respondent

Hearing Date:   5 November 1993

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Eighteenth day of March 1994

This is an appeal by T against his conviction at a trial in the District Court in which the jury found him guilty of six offences of a sexual nature committed against his 13 year old daughter between 1 January 1992 and 12 February 1993.  The counts in the indictment may be identified briefly as follows: (1) procuring a child to commit an indecent act; (2) attempted carnal knowledge; (3) carnal knowledge by anal intercourse; (4), (5) and (6) indecent dealing.  In each instance except for count 2 it was also charged as a circumstance of aggravation that the child was, to the knowledge of the appellant, a lineal descendant.

The offence charged in count 5 consisted of touching the complainant's vagina, which was alleged to have occurred on the morning of 12 February 1993.  The offence in count 6 (which was chronologically the last in sequence) was constituted by the appellant's rubbing his penis either in or against the complainant's anus in the course of what she described as an attempt to penetrate.  It was alleged to have taken place in the afternoon of 12 February, after the appellant collected the complainant from her school at Beenleigh.  She underwent a medical examination six days later on 18 February, which revealed two anal fissures of about 2 to 3 cms. in length.  The evidence of Dr Roylance, who conducted the examination was that the fissures were consistent equally with marginal penetration by a penis or other similar object, and also with passing a firm bowel motion.  He thought that the fissures were clinically about 5 days old, but "with an uncertainty of several days either side".  From his paediatric experience, he was able to say that children of the complainant's age were sometimes unsure whether a slight degree of penetration had occurred; although he also said that if the fissures were caused by penetration, it would have been uncomfortable and painful for the complainant at the time.

Counsel for the appellant at the trial objected to this evidence on the ground that it was "too equivocal" and consequently that it would be dangerous to admit it.  The evidence of Dr Roylance was thereupon received on the voir dire.  At its conclusion the trial judge ruled that the evidence would be admitted, remarking that it was one circumstance that could be taken into account by the jury in conjunction with a number of other circumstances.  On appeal it was submitted that the ruling was wrong; that evidence of the two fissures was "intractably neutral"; and that its likely prejudicial effect on the minds of the jury outweighed any probative value it might have had.

The evidence in question was plainly admissible in law as being relevant to an issue at the trial.  The complaint made about it here is that the evidence should have been excluded in the exercise of a sound judicial discretion.  That being so, even if we were persuaded that the discretion to exclude it had miscarried, the result might be, not that the appeal would succeed because the evidence had been admitted, but that it would be necessary to consider whether or not its admission had resulted in a miscarriage of justice : see Maric v. The Queen (1978) 52 A.L.J.R. 631, 634-635; R. v. Thompson [1983] 1 Qd.R. 224, 227. The evidence objected to but admitted in this case was not likely to have had the devastating impact on the minds of the jury that could be predicated of the material considered in Maric v. The Queen.

It is, however, not necessary to pursue this question because the problem of whether or not evidence of the anal fissures ought to have been admitted in circumstances like these is resolved by the decision of this Court in R. v. Morrison (CA 314 of 1993) given on 9 November 1993.  In that case anal fissures were found to be present in a 7 year old boy upon examination some 8 or more weeks after his last association with the appellant.  The argument advanced at trial and on appeal in that case is the same as we have heard here.  In rejecting it in Morrison Pincus J.A. said that there was no reason why evidence of what might be described as injuries of a potentially relevant kind (like the ruptured hymen in R. v. Kerim [1988] 1 Qd.R. 426) should not have been fit for consideration by the jury. Indeed, his Honour went on to say, if the complainant boy in that case had exhibited no injury in that region, the jury might have thought it a little odd in view of his immature age; and that, at least in that sense, the evidence of the fissures gave negative assistance to the Crown case by excluding doubts the jury might otherwise have founded on the absence of any such injury. The other judges of the Court in R. v. Morrison agreed with what Pincus J.A. said in that case.  There is nothing to distinguish that case or its facts from this.  It follows that this ground of appeal must fail.

The other ground of appeal concerned the evidentiary significance of the appellant's action in absconding a few days after he was released on bail.  It will be recalled that the last incident charged in the indictment was alleged to have occurred after school on Friday 12 February 1992.  On the evening of Saturday 13 February a complaint was made to the police.  The appellant was arrested on Sunday 14 February, and released on bail on Tuesday 16 February.  He decamped to New South Wales on or about Friday 19 and was re-arrested on 22 February 1993.  In between the first and last of those dates he made a number of telephone calls to his wife, both before and after going to New South Wales.  Evidence was given about what he said in the course of those conversations (some of which were tape recorded) with her.  Some letters he wrote to her at about the same time were also put in evidence.

On appeal it was conceded, correctly as it seems to us, that some of the statements made by the appellant to his wife in the course of those communications were incriminatory and so capable of being considered as corroborating the account given by the complainant girl.  No criticism is levelled against the trial judge's summing up in that respect.  However, the judge also told the jury that the appellant's sudden departure for New South Wales after he had been released from bail could be viewed as corroborative.  The complaint now made is that in doing so his Honour failed to direct the jury that they must first be satisfied beyond reasonable doubt that the appellant went to New South Wales because he knew he was guilty of the offences charged.

The directions given to the jury on this part of the prosecution case were extensive, but they are conveniently summarised by his Honour in a single sentence in the summing up.  Speaking of various excerpts from the conversations and letters to which he had been referring the jury, the judge went on to say:

"Before you could reach that conclusion, that is that they show a consciousness of guilt, you must be satisfied that there is no other explanation for his departure to New South Wales and what he said in those conversations and letters other than that they result from a consciousness of guilt."

The real question is whether, as the appellant contended, this direction was wrong in law because it did not direct the jury that they must first be satisfied beyond reasonable doubt that the appellant's behaviour was motivated by a consciousness of guilt before it became proper to rely on it as circumstantial evidence of guilt.

The reasoning on which it was sought to found this contention proceeds as follows.  Inferring the existence of consciousness of guilt is, it was submitted for the appellant, tantamount to drawing the ultimate inference of guilt, and consequently the same standard of proof must apply to it.  For this, reliance was placed on some passages in the reasons of Dawson J. in Shepherd v. The Queen (1990) 170 C.L.R. 573, 581. We are, however, unable to identify anything in his Honour's reasons that can be said to lend support to the appellant's submissions on this point. In terms of his Honour's analysis in Shepherd at 581, the argument before us conceived of "consciousness of guilt" as "the intermediate fact" and insisted it be established not only beyond reasonable doubt but in isolation from other evidence in the case before it would become available along with other circumstances to establish the appellant's guilt.  Such an approach is inconsistent with the rule of proof or the general principles of evidence applied by the courts to other matters and is, moreover, directly opposed to the very authority on which it claims to rely.  The jury, as Dawson J. explained, in Shepherd v. The Queen (1990) 170 C.L.R. 573, 580:

"may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof.  Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item separately."

Of this the evidence in the present case offers a practical illustration.  In reaching a verdict of guilty the jury were entitled to rely on the appellant's departure to New South Wales, but they could do so only if guilt was the only reasonable explanation of that departure or "flight".  That is the substance and effect of what his Honour told them in the passage of his summing up that is set out above.

In deciding whether there was any other explanation for that behaviour, the jury were bound to consider all reasonable explanations that were consistent with innocence.  When pressed on appeal, Mr Carmody of counsel suggested that possible explanations might be panic or stupidity, or perhaps even cultural or family factors apparent only to members of the Turkish community and not appreciated by others.  There is not the slightest support for any such hypothesis in the evidence here; but, what is more important, there is on the contrary a body of other evidence that tends very strongly to confirm the explanation contended for by the Crown.  It consists of the incriminatory admissions contained in the appellant's own telephone and written communications to his wife between 13 and 22 February 1993.  Among them were his confession "Yes, I know I am guilty", which was said in response to her inquiry how he could have done this to his own daughter; his plea to her not to tell the police he had telephoned; and his assurance, given after his wife received the results of the medical examination of the complainant, that it was not a vaginal contact - which must be seen against the background of other evidence emphasising the importance ascribed by Turkish people to the appearance of pre-marital virginity in marriageable girls.  Another item of such evidence is the appellant's action in taking away their young son, which he later explained to his wife he had done because, knowing he was going to gaol, "I just wanted to see him"; as well as other statements he made to the effect that he was "sick", that perhaps he had a double personalty, and that he was getting treatment.

When these various statements by the appellant are considered in conjunction with the timing and circumstances of his making off to New South Wales, they leave no room for rational doubt about the motive or reason for his doing so.  It follows that his Honour's direction to the jury with respect to the conditions under which those matters might be viewed by the jury as evidence of the appellant's guilt is not shown to be in any way incorrect or unfair or unfavourable to the appellant.

The appeal against conviction should be dismissed.