The Queen v A

[1992] QCA 440

COURT OF APPEAL  [1992] QCA 440

MACROSSAN CJ
McPHERSON JA
DERRINGTON J

CA No 159 of 1992

THE QUEEN

v.

A  Appellant

BRISBANE

DATE 10 NOVEMBER 1992

JUDGMENT

THE CHIEF JUSTICE:  This is an appeal against conviction.

The appellant pleaded not guilty to a number of offences but was convicted following a trial.  The offences involved sexual episodes between himself and the person established in the trial as being his daughter.  The episodes spanned a period of time between about 1982 and 1989.  He was convicted of indecent assault on a girl under the age of 14, the reference being to his daughter, also of attempted incest with the girl on 2 occasions, and 4 occasions of incest.  These episodes were spread throughout the period to which I have referred.

The appellant was represented at the trial but before us he conducted his own appeal.  His grounds of appeal show signs of having been drafted either by himself or at least not with professional assistance.

The counsel appearing for the Crown on the appeal submitted, and it certainly appears to be a fair submission, that the Crown in this case had a strong case which it put before the jury.  Amongst the evidence which the Crown had were the appellant’s own statements to a family friend that he had had sex with his daughter; to another person, a family friend, that he had had sex with his daughter on several occasions; the appellant's wife gave evidence at the trial and said that she saw him over the daughter's bed on one occasion with his underpants down and his penis erect.  In fact, he was convicted in respect of that behaviour, that improper behaviour, on his own plea.

The appellant also admitted to his wife that he had had intercourse with the girl and when asked did he ever come inside her he said, "No, I always pulled out in time."  In a tape recorded interview with the police the appellant admitted that he had had intercourse with his daughter on a number of occasions, although he later withdrew those admissions.

There were 5 numbered grounds taken.  The argument which the Court had presented to it by the appellant did not very relevantly relate to any of those particular grounds, or at least it was not totally covered by those grounds.  The 2 grounds which seem most relevant to the matters which the appellant addressed us on were these, that the Judge's comments to the jury were unfair and defamatory and that the Crown witnesses' evidence given at a first trial involving the appellant was changed and used by the Judge in wrong fashion in the summing up to the jury in this trial.

We have had our attention directed to the parts of the summing up to which the appellant wishes to object.  It is unnecessary, in my opinion, to describe all of his objections in precise detail.  In respect of one portion of the summing up his objection really amounted to this, that the Judge stating to the jury or purportedly stating to the jury the words which one of the witnesses had used, in fact used his own, that is the Judge's words.  When we examine that particular part of the summing up it does not seem to me that the Judge was purporting to state exact words only to give the effect of testimony given by a witness.

I do not consider that there was anything in this reference by the Judge which was liable to mislead the jury or result in any unfair verdict.  The appellant objected to the Judge's language and the strength of it, as it appears at one stage in about the same passage.  The Judge's language was strong but I have to say that looking at it in terms of the whole of the summing‑up there is nothing there which would call for us to intervene.

In respect of another episode, the appellant objects to the Judge having said to the jury that the evidence was that the appellant was masturbating beside his daughter while he was looking at her.  The appellant wished to object before us that there was not evidence that he was looking at the girl while that episode as described by the girl continued.  He said the evidence was rather that he was sitting beside her.  It might be thought that there was not a significant difference in these two descriptions or versions of the same episode and in fact when we had our attention directed to the evidence of the girl we see that her description of it was that he was performing these actions while he actually had his finger, or fingers, inside her vagina.  It is hard to see that he is left with a substantial complaint in respect of that matter.

In his argument before us, the appellant objected to what in effect was described as the Judge's over frequent reference to corroborating evidence.  The Judge was, of course, obliged to direct the jury upon the need to look for corroboration.  It does not seem to me that there was any substance in that complaint calling for us to act.

There is no ground, I should say, taken in the notice of appeal that the Judge misquoted the evidence to the jury but since the appellant was unrepresented the Court allowed considerable latitude to him in advancing the matters of complaint which he wished to put before us.

Another set of complaints can be summed up under this heading, that there was some variations in the accounts of the witnesses given in a first trial as compared with what they said on the second trial with which we are concerned and there were variations also appearing in the witnesses alleged recollection of events.

The effect of any such variations would be a matter, of course, for the jury to assess and our attention was not directed to anything which could even remotely be regarded as being in the class of dramatically different so obliging the jury to entertain doubts.

In short, and he is not necessarily to be criticised on this account because it is no doubt difficult for a layman to separate the wheat from the chaff, a lot of the matters that he advanced before us seem to be really no more than quibbles.  Certainly not such matters as would entitle us to interfere.

He said that some of the witnesses who gave evidence in the trial provided their testimony to the authorities late in the scheme of things.  Again, it would be a matter for the jury to consider what they thought there was of substance in that complaint.

One further objection was that matters which had been admitted in the first trial relating to alleged behaviour between the appellant and his daughter had been the subject of relevant acquittal in that trial but again was introduced in the second trial.  However, the appellant's explanation of this to us is that his own counsel persuaded him that the best way to conduct the second trial was to permit the admission of this particular portion of the evidence.

There were no relevant redirections sought which would concern us in respect of the matters of complaint now raised by the appellant.  At the conclusion of his submission on all of the points which he wishes to advance I am left with the view that there is no justification for interference on the basis that the course of the trial in any way miscarried or that anything calls for our positive intervention.

I would, for myself, dismiss the appeal.

McPHERSON J:  I agree.  It is perhaps necessary to record that the application for leave to appeal against sentence that appears in the form of notice of appeal before us was earlier withdrawn or abandoned by the applicant.

DERRINGTON J:  I agree.

THE CHIEF JUSTICE:  The order of the Court then is Mr A that your appeal is dismissed.