R v. V
[1993] QCA 555
•16 December 1993
IN THE COURT OF APPEAL [1993] QCA 555
SUPREME COURT OF QUEENSLAND
C.A. No. 399 of 1993.
Brisbane
[R v. V]
THE QUEEN
v.
V
(Appellant)
_______________________________________________________________
The President
Pincus J.A.
Davies J.A.
_______________________________________________________________
Judgment delivered 16/12/93
Judgment - The Court
_______________________________________________________________
APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: CRIMINAL LAW - unlawful and indecent dealing with a child under 16 - child in question was appellant's daughter - whether complainant's story inconsistent with evidence of mother - whether false allegation made by complainant against grandfather was ground for making verdict unsafe and unsatisfactory.
CRIMINAL LAW - summing-up - evidence of conversations between appellant and his brother given by brother - conversations contained incriminating statements by appellant - no evidence given by appellant to contradict the statements - trial judge advised jury of the failure by the appellant to give evidence that the conversations did not take place or to provide explanation of what might have been said - whether direction proper.
R v. Weissensteiner (High Court unreported 17 November 1993)
Kops [1894] A.C. 650.
May v. O'Sullivan (1955) 92 C.L.R. 654.
Counsel:Mr A Rafter for the appellant.
Mr B Butler for the Crown.
Solicitors:Legal Aid Office for the appellant.
Director of Prosecutions for the Crown.
Hearing Date: 06/12/93
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 16/12/93
The appellant, who was convicted in the District Court of five counts of indecently dealing with his daughter, has appealed against conviction. The grounds of appeal argued were three: that the verdicts were unsafe, that the judge did not direct adequately with respect to the inconsistencies and conflicts in the Crown case, and that the judge wrongly told the jury that the appellant did not place before the court his version of incriminating conversations sworn to by his brother H.
The indictment charged two counts of unlawful and indecent dealing and three of attempting to have carnal knowledge of his daughter M. The three charges of attempted incest resulted in not guilty verdicts, but, as to each, the jury returned the alternative verdict of guilty of indecent dealing.
The complainant was born on 21 September 1977. She was just 16 at the date of trial, and the offences alleged were said to have occurred when she was in grades 7, 8, 9 and 10 at school. They were of two kinds: touching her sexually, particularly on the vagina, and attempting to have sexual intercourse with her. It appears to be unnecessary, for the purposes of this appeal, to explain all the details of the complainant's allegations.
There were two witnesses called to support the complainant's story; one was her mother, whose evidence was not, on the whole, of any assistance to the Crown. It is true that the mother said that one night she saw the appellant leaning over the child with his hand underneath the blankets "but I don't know where he was touching her there", which was presumably thought to give some support to the complainant's story that her father used, when tucking her in, to "put his hand in my undies". Further, the mother said that when the complainant used go to have a shower the appellant would go to the toilet. It appears that access to the toilet was gained by walking through the bathroom in which the shower was located, and the complainant said that on one occasion when she was showering the appellant came in, having asked to go to the toilet; instead of doing so, according to the complainant, he pulled the shower curtain aside and sexually assaulted her. The difficulty about use of the mother's evidence to support that part of the complainant's version was that when asked to estimate the number of times the appellant entered the bathroom while the complainant was in the shower, she answered "nearly every night that she was having a shower". The complainant, on the other hand, said that apart from the occasion when he assaulted her there were "a couple, I think" of occasions when the appellant came in to the bathroom while she was having a shower.
There were, apart from this, marked inconsistencies between the complainant's evidence and her mother's. If the mother was to be believed, there was an occasion when the complainant was observed by her in the kitchen leaning up against a cupboard with the appellant against her; according to the mother, the girl's dress was up and the appellant's penis was touching her "on her private". She said the girl's underpants were down and her pubic hair was visible. The complainant, however, was asked:
"Well, any of the times that you say your father was trying to have intercourse with you, or trying to put his penis in you, were you aware that Mum was ever around then?"
She answered "No". It is of course possible that the complainant was unaware of her mother's presence, but the complainant gave no evidence of any incident resembling that described by the mother. Again, the mother gave evidence of sexual handling of the complainant when she was in bed between her parents; the complainant said nothing of that sort ever occurred.
The appellant's counsel, Mr Rafter, also drew attention to difficulties with the complainant's evidence, considered in isolation. Of these, the most serious is that the complainant had made a false allegation about her grandfather, namely that he had "done the same thing as what [the appellant] did to you". It appears that the accusation was not made to any official person, but was "screamed at" a friend of the complainant's, a girl called Alana. Then, although the sequence of events is not absolutely clear, it appears that Alana told her own mother, who told the complainant that she had to tell her Aunt, so she did. The complainant said that she told the false story about her grandfather so that she would not have to go back to live with her Aunt, who was, it appears, a resident at the same place.
Mr Rafter relied upon two inconsistencies in the complainant's evidence, of which one only requires mention. This is that in a statement to the police she said that her father had tried to have intercourse with her a few times, whereas, during the course of a long and exhaustive cross-examination, she said that she did not know how often it occurred. The cross-examination on this aspect concluded:
"And how many times in that five month period do you say that he was trying to put his penis in you then?-- I don't know.
20, 30? Let's just stick to the bedroom?-- I don't know.
Sorry?-- I don't know.
Well, would it be 10 approximately?-- Probably, I don't know.
Probably. So, somewhere between - close to 50 anyway over those three years, hey?-- Yes."
Earlier in the cross-examination, the complainant had persistently refused to attempt to estimate the number of times her father tried to have intercourse with her. It does not appear that her having eventually assented to "close to 50" is, in the circumstances, a very weighty matter.
The Crown case obtained substantial support from the evidence of the appellant's brother H, who gave evidence of three conversations with the appellant. The first was on an occasion when the appellant was in hospital and -
"...I asked him what was going on and he told me that he touched her with a pair of tweezers to get a Med out of her vagina and he said that's all he done".
The second, according to H, occurred when H picked the appellant up from the hospital and took him to his solicitor. The evidence was:
"Yes and what was said that time?-- Well, he was in the solicitor's offices and he came out and he was in cold sweat and I said to him, I said, 'Look V,' I said, 'you must have done something wrong'. He said, 'Yes, I did'. He said, 'I molested her', he said 'but I did not rape her'. So I said to him, I said-----"
The third conversation was as follows:
"He - when we went to court, I met him downstairs and he said, 'I had enough. I want to plead guilty'. And he spoke to his lawyer-----"
The cross-examination of H was brief and did not include any suggestion as to why he might have been motivated to fabricate incriminating conversations.
It was not submitted that the jury could not accept the evidence of H. If they did so, it provided powerful support to the complainant's version of events. Discounting the mother's evidence completely, and keeping in mind the matters relating to the complainant's own evidence to which we have referred, there still appears to us to be an ample foundation on which the jury might properly base the verdicts which were given. The jury had before it uncontradicted evidence of an admission of sexual molestation made to the appellant's brother, a person whom they might reasonably think would be disinclined to fabricate such a story.
In our view, the verdicts were safe and satisfactory.
The second ground of appeal, that the judge did not sufficiently direct the jury with respect to inconsistencies in the Crown case, was not pressed. The summing-up was long and detailed and included a considerable amount of discussion of that subject; we think the point does not require detailed analysis.
The last ground of appeal was that the judge should not have told the jury what he did about the contradiction of H's story. After referring to H’s evidence the judge said:
"The accused chose not to place any evidence before the Court in relation to the times conversations may have taken place and he chose not to put his version of the conversation but the evidence suggests this, does it not: that the accused was in the psychiatric ward of the Toowoomba Hospital."
His Honour then discussed the statements allegedly made to H further and added:
"If you find that he did make such statement, you might say, 'Well, do I then find that the contents were true?' H’s sworn evidence is that it took place. There has been no evidence on oath that it didn't take place and then no explanation of what might have been said, if they were said."
The complaint is that, in drawing attention to the appellant's failure to give evidence to contradict H’s, the judge implied that the appellant "had some onus of giving his version of these conversations".
Counsel for the respondent, Mr Butler, argued that the judge was entitled to comment upon the failure of the appellant to give evidence about the conversations H alleged, and relied upon the recent decision of the High Court in Weissensteiner (unreported 17 November 1993). In that case the appellant was convicted of murder on circumstantial evidence. The appellant and the two alleged victims had been together on a boat, preparing to travel overseas in it; they disappeared and he sailed the boat off alone. Those and other circumstances pointed to the conclusion that the appellant had done away with the two missing people. The trial judge told the jury that the appellant did not have to give evidence and that they could not infer guilt simply from his failure to do so. The judge also said:
"The consequence of that failure is this: you have no evidence from the accused to add to, or explain, or to vary, or contradict the evidence put before you by the prosecution. Moreover, this is a case in which the truth is not easily, you might think, ascertainable by the prosecution. It asks you to infer guilt from a whole collection of circumstances. It asks you to draw inferences from such facts as it is able to prove. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge."
The point immediately before the High Court was whether such a direction was proper in such a case as was before it, one based on circumstantial evidence in which it appeared to be difficult for the Crown, but not for the accused person, to say in what circumstances the two people came to be missing from the boat on which they and the appellant had been living. Mr Butler argued, however, that Weissensteiner's case has a more general application and that what was there held constitutes authority relevant to a case such as this, where the Crown did not rely on circumstantial evidence to prove its case, but put forward direct evidence of the commission of the offences charged. In our view, Mr Butler's contention is correct. In the reasons of Mason CJ, Deane and Dawson JJ, as well as in those of Brennan and Toohey JJ, approving references were made to the statement of the Privy Council in Kops [1894] A.C. 650 at 653:
"There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary."
Both those sets of reasons also refer, with approval, to the High Court's remarks in May v. O'Sullivan (1955) 92 C.L.R. 654 at 658-659:
"After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v. Buttery for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear: cf. Morgan v. Babcock & Wilcox, per Isaacs J. But to say this is a very different thing from saying that the onus of proof shifts."
The question, then, is whether the present is a case in which it was legitimate to call attention, as the judge did, to the appellant's not having contradicted H’s evidence. That depends on whether the appellant's failure to contradict H was "capable of assisting [the jury] in the evaluation of the evidence before them" - per Mason CJ, Deane and Dawson JJ at p. 8. Their Honours also remarked, on the same subject:
"It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence."
In the reasons of Brennan and Toohey JJ one finds:
"It follows that, in Queensland and in other jurisdictions where there is no statutory prohibition against judicial comment, a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn."
Here, in our opinion, the appellant's failure to contradict H’s evidence was capable of assisting the jury in evaluating that evidence and it bore upon the probative value of that evidence. Further, it was reasonable to expect that if H’s evidence that the appellant made statements incriminating himself was untrue, some denial, explanation or answer would be forthcoming from the appellant. The peculiarity of the present case is that the judge drew attention to the lack of contradiction on the part of the appellant, not universally, but only in relation to H’s evidence. We assume that his Honour did so because there might have been thought to be such contradictions or inconsistencies in the rest of the evidence as to make comprehensible a failure on the part of the appellant not to give evidence to counter it. H’s evidence was, it appears to us, in a different category; it was plain and, if correct, damning.
It should be noticed that the judge did not expressly tell the jury that they might use the appellant's failure to contradict H’s evidence in evaluating it or assessing its credibility; that was left to implication. Nor did his Honour speak of an inference of guilt being possibly rendered less unsafe by the lack of contradiction. In fact, at other places in the summing-up the judge directed the jury not to draw an inference against the appellant on that ground. But if, despite those general directions, the jury took from his Honour's specific remarks about H’s evidence an implication that the appellant's failure to contradict it might make an inference of guilt less unsafe than it would otherwise appear to be, in our view that implication was a proper one.
In summary, the judge's having drawn attention to the appellant's failure to contradict H’s evidence of incriminating conversations was not an error.
All the grounds of appeal fail and the appeal must be dismissed.
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