Tully v The Queen [2006] HCA 56 7 December 2006 B12/2006
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
A J Kimmins with K A M Greenwood for the appellant (instructed by Welldon Zande & Reddy)
L J Clare with V A Loury for the respondent (instructed by Director of Public Prosecutions (Q))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tully v The Queen
Evidence – Criminal trial – Sexual offence – Uncorroborated evidence – Delay in making of complaint – General rule from Longman v The Queen (1989) 168 CLR 79 requiring warning of danger of conviction – Whether trial judge bound to give a warning in present case – Duty to make comments in interests of justice – Requirement of fair trial – Conviction depended on evidence of complainant alone – Whether need for warning or comment as referred to in Robinson v The Queen (1999) 197 CLR 162.
Evidence – Criminal trial – Sexual offence – Evidence of uncharged acts – Whether admissible as relationship evidence – Whether subject to the constraints imposed for the admissibility of similar fact or propensity evidence.
Words and phrases – "delay", "Longman warning", "propensity evidence", "similar fact evidence", "uncharged acts", "uncorroborated evidence".
KIRBY J.This is an appeal from a judgment entered by the Court of Appeal of the Supreme Court of Queensland[1]. By that judgment, the Court of Appeal dismissed the appellant's challenge to his conviction of sexual offences against a young girl ("the complainant"), the daughter of his then domestic partner.
[1]R v TN (2005) 153 A Crim R 129.
Although several issues were raised in the Court of Appeal, to support the challenge to the conviction, in this Court only two grounds remain. The first complains of the failure of the trial judge to give the jury a warning, with reference to features of the evidence, which the appellant said was necessary "to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case"[2]. The second concerns the suggested inadequacies and imperfections of the directions given to the jury on the subject of the standard of proof of uncharged acts which were described by the complainant in giving her evidence.
The appellant is entitled to succeed on the first point. The case is not one for the application of the "proviso"[3]. A new trial should be ordered. The circumstances of the case make it unnecessary, and inappropriate, to deal with the issues concerned with the uncharged acts.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tully v The Queen [2006] HCA 56
Case
[2006] HCA 56
Decision Date
CaseChat Overview and Summary
In *Tully v The Queen*, the High Court of Australia considered an appeal by Raymond Douglas Tully against his convictions for sexual offences involving a child. The appellant had been charged with ten counts, including rape and indecent dealing with a child under 16. The jury was unable to reach a verdict on some counts, but convicted the appellant on others. The appeal to the High Court concerned whether the trial judge had erred in failing to adequately direct the jury regarding the uncorroborated evidence of the complainant, particularly in light of the delay in her making a complaint.
The central legal issue before the High Court was whether the trial judge was bound to give a specific warning to the jury about the dangers of convicting on the uncorroborated evidence of the complainant, as discussed in cases like *Longman v The Queen* and *Robinson v The Queen*. This involved considering whether the circumstances of the case, including the complainant's age, the nature of the allegations, and the delay in reporting, necessitated such a warning to ensure a fair trial. The Court also had to consider whether there was evidence capable of providing independent support for the complainant's account or explaining the delay in her complaint.
The High Court, in dismissing the appeal, reasoned that while the complainant's evidence was uncorroborated in a technical sense, there was evidence that could provide independent support for her version of events. Furthermore, the Court found that there was evidence capable of explaining the delay in the complainant making her allegations. The Court distinguished the present case from *Robinson v The Queen*, noting that *Robinson* was considered an exceptional case where a warning was more strongly justified. The Court concluded that the trial judge's directions, while not containing a specific "Longman warning," were sufficient in the circumstances to ensure a fair trial, and therefore, no miscarriage of justice had occurred. The Court also noted that it was unnecessary to deal with issues concerning the admissibility of evidence of uncharged acts.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant is entitled to succeed on the first point. The case is not one for the application of the "proviso"[3]. A new trial should be ordered. The circumstances of the case make it unnecessary, and inappropriate, to deal with the issues concerned with the uncharged acts. Those issues are important, but this is not the occasion to decide them. [3]Criminal Code 1889 (Q) ("the Code"), s 668E(1) and (1A).The facts Nature and course of the trial: By an indictment dated 28 June 2004, the appellant was charged with ten counts of sexual conduct involving the complainant. Two of the counts involved the offence of rape[4]; four counts charged that the appellant had unlawfully permitted himself to be indecently dealt with by a child under 16 years of age[5]; and four counts charged that the appellant had unlawfully and indecently dealt with a child under 16 years of age[6].[4]The Code, s 349.[5]The Code, s 210(1)(c).[6]The Code, s 210(1)(a). At his trial, in the District Court of Queensland (Richards DCJ), the jury were unable to agree on the two counts of rape. One, count 2, was alleged to have occurred between 31 January 1999 and 1 June 2000; the other, count 10, between 1 January 2000 and 1 June 2000. The jury also disagreed on one of the counts alleging that the appellant had permitted himself to be indecently dealt with (count 1). That offence was alleged to have occurred between 31 January 1999 and 1 February 2000. On all of the remaining counts, the appellant was found guilty by the jury. He was convicted and sentenced on each count to concurrent sentences of three years' imprisonment. A retrial was ordered on those counts upon which the jury could not reach a verdict. However, no such retrial has occurred. The complainant was born on 11 March 1990. She was thus between the ages of nine and slightly more than 10 years of age when the alleged offences happened. The complainant's mother had begun a personal relationship with the appellant in early 1999 and the couple lived together with the complainant and her brother successively in their respective premises. It was soon after the relationship with the mother began that the complainant alleged that the appellant had begun to act inappropriately. At first this allegedly involved his exposing his penis to her; but later the events allegedly occurred that gave rise to the counts on the indictment[7]. [7](2005) 153 A Crim R 129 at 134 [33]. The complainant did not tell her mother about any of the appellant's alleged conduct until April 2002. By that time, the mother, the complainant and her brother were living in New South Wales. The police were notified and the complainant underwent two recorded interviews in April 2002 and May 2002. No immediate charges were laid. In October 2003, the appellant's home in Queensland was searched. Hand guns for which he was licensed were found and photographs were taken of the appellant's pubic area. The photographs disclosed the presence of a mole near the appellant's penis to which the complainant had referred in her statement to police. She was 12 years old at the time of the interviews and 14 years of age when the trial took place in July 2004.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
The jury's verdicts: The jury retired. After deliberating for more than a day they returned to announce that they could not reach agreement on counts 1, 2 and 10. However, they were agreed on the other counts. Their verdicts of guilty on those counts were taken. The conviction of the appellant followed as did his sentence.The Court of Appeal's decision Complaint based on Robinson: The initial notice of appeal to the Court of Appeal challenged the appellant's conviction on the counts on which he had been found guilty on the basis that the conviction was "unsafe and unsatisfactory". However, by the time the appeal was argued, a specific ground of appeal was formulated complaining that the trial judge had erred in failing adequately to direct the jury in relation to the evidence and that this had occasioned a miscarriage of justice[13]. The Court of Appeal rejected this submission. Its reasons were given by Keane JA (with whom Williams JA and Helman J agreed).[13](2005) 153 A Crim R 129 at 131 [5]. On the first issue, after noticing the limited content of the trial judge's remarks to the jury on the approach that they should take and the observations of this Court in RPS v The Queen[14] about the content of jury instructions, Keane JA turned to address the appellant's complaint that the trial judge had failed to direct the jury "that they needed to scrutinize the complainant's evidence with great care before they could convict the appellant"[15]. His Honour referred to the decision of this Court in Robinson v The Queen[16]. However, for two reasons, Keane JA concluded that Robinson did not demonstrate any error on the part of the trial judge in this case in failing to give a warning to the jury.[14](2000) 199 CLR 620 at 637 [41]-[42].[15](2005) 153 A Crim R 129 at 139 [53].[16](1999) 197 CLR 162. The first reason stated by Keane JA was that Robinson had held back from requiring a warning to the jury "in every case where a child's complaint of sexual abuse is uncorroborated"[17]. He concluded that, although in the present case there was "no corroboration in the technical sense of evidence tending to confirm one or more of the elements of the offences charged, there was evidence which is capable of providing independent support for the complainant's version of events"[18]. Moreover, he concluded that there was "evidence which explains the complainant's delay in complaining about the appellant's conduct"[19].[17](2005) 153 A Crim R 129 at 140 [56].[18](2005) 153 A Crim R 129 at 140 [56].[19](2005) 153 A Crim R 129 at 140 [56]. The second reason advanced by Keane JA was that Robinson was, in his Honour's words, "truly an exceptional case so far as the justification for the warning was concerned"[20]. This, he said, was because aspects of the case involved matters in which "judicial experience may have given the trial judge an advantage in assessing the credibility of the competing versions of events "over and above worldly wisdom and experience of the jury"[21].[20](2005) 153 A Crim R 129 at 140-141 [58].[21](2005) 153 A Crim R 129 at 141 [58].