- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Douglas  QCA 69
CA No 51 of 2017
DC No 2485 of 2016
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 20 March 2017 (Rafter SC DCJ)
17 April 2018
6 November 2017
Sofronoff P and McMurdo JA and Brown J
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was charged with three sexual offences against the same child complainant – where the appellant was convicted by a jury of maintaining an unlawful sexual relationship with the complainant (count one) and one count of unlawfully and indecently dealing with the complainant (count three) – where the jury was unable to reach a verdict on one count of rape (count two) – where the prosecution effectively relied upon evidence of uncharged acts as evidence of the appellant’s sexual interest in the complainant – where the jury was not directed as to the use they could make of that evidence nor the applicable standard of proof – whether the trial judge’s failure to direct the jury caused a miscarriage of justice so that a re-trial should be ordered in relation to both counts one and three
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the proof of the offence of maintaining an unlawful sexual relationship with a child (count one) required the proof of more than one unlawful sexual act over the relevant period – where the prosecution case was based on any combination of several sexual acts described in the complainant’s evidence – where the prosecution case in relation to count one did not exclude the act of rape constituting count two – where the jury was unable to reach a verdict in relation to count two – whether some of the jury concluded the appellant’s guilt in relation to count one by a course of reasoning that was not open to them by reason of them not being satisfied of the appellant’s guilt of count two, resulting in a miscarriage of justice warranting a re-trial on count one
Criminal Code (Qld), s 210(1)(a), s 229B(1), s 349(1), s 668E
Evidence Act 1977 (Qld), s 21AK, s 93A
BBH v The Queen (2012) 245 CLR 499;  HCA 9, considered
HML v The Queen (2008) 235 CLR 334;  HCA 16, considered
Pfennig v The Queen (1995) 182 CLR 461;  HCA 7, cited
Shepherd v The Queen (1990) 170 CLR 573;  HCA 56, cited
P J Callaghan SC, with A J Kimmins, for the appellant
V A Loury QC for the respondent
Potts Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: I agree with the reasons of McMurdo JA and the orders his Honour proposes.
- McMURDO JA: The appellant was charged with three offences of a sexual nature against a child. The first was that in a period from March 2005 until June 2012, he maintained an unlawful sexual relationship with a boy who was under the age of sixteen years. The second was that on a date between March 2008 and March 2010, he raped that boy. The third was that between March 2008 and March 2012, he unlawfully and indecently dealt with the boy. After a trial, the appellant was convicted by the jury on counts one and three. The jury could not reach a verdict on count two.
- There are two grounds of appeal. The first is that the trial judge failed to properly direct the jury as to certain parts of the evidence. The appellant’s argument is that because the prosecution ultimately relied upon this evidence as discreditable conduct by the appellant in the nature of “grooming” the complainant for the offending, it was necessary that the jury be directed that they should not act upon the evidence unless they were satisfied, beyond reasonable doubt, that this was the purpose of the conduct. It is argued that the omission of this direction caused a miscarriage of justice and that a re-trial should be ordered on both counts one and three.
- The second ground of appeal relates only to count one. The proof of count one required the proof of more than one unlawful sexual act over the relevant period. The prosecution case was based on any combination of the sexual acts which were described in the complainant’s evidence, which included the act constituting count two (rape by the penetration of the complainant’s anus) and count three (the appellant sucking the complainant’s penis). The jury was correctly instructed that they did not have to be unanimous in their findings as to what sexual acts had occurred. Clearly, they were not unanimous on the question of whether the act, the subject of count two, had occurred. The appellant’s argument is that it was not open to the jury to be satisfied as to the occurrence of the act, the subject of count two, so that there is risk that some of the jury concluded that the appellant was guilty on the first count by a course of reasoning which was not open to them. It is said that there was therefore a miscarriage of justice which warrants a re-trial upon count one.
- For the reasons that follow, I would allow the appeal upon the first ground, set aside the convictions and order a re-trial on each count.
The evidence of sexual acts
- The complainant was born in 1998 and at all times lived at home with his parents and siblings. The appellant was born in 1970 and was a friend of the complainant’s family. He visited the complainant’s family regularly, would sometimes drive the children to or from school and on at least one occasion, he looked after the children overnight.
- In late 2012, the complainant told his father that the appellant had tried to “touch his privates”. His father asked him if that was all which he had tried to do and the complainant answered “yes”.
- In August 2013, the complainant was interviewed by police, and the recording of that interview was tendered under s 93A of the Evidence Act 1977 (Qld). He then said that the appellant “… started trying to rape me and stuff like that when I was young”. He described a number of incidents of sexual conduct, but no act which would constitute a rape.
- In February 2014, following an argument between the complainant and his father, the complainant said to him that he had been raped by the appellant. Consequently, he was again interviewed by police and the recording of that interview, conducted on 23 February 2014, was tendered under s 93A. It was what he then related to police that became the subject of count two.
- In his first interview by police, the complainant gave evidence that at some point in time the appellant began to ask questions about whether he had “hit puberty yet” and “grown any pubes”. He said that the appellant started to do things such as trying to “touch my body and stuff like that” and “shove his hands down my pants”. He said that the appellant would “touch” and “tug” his penis and try to “jerk me off”. He estimated that the appellant rubbed his penis “up and down” on seven or eight occasions. He recalled one occasion, which was associated with a birthday when the complainant was “about eight or nine”, on which the appellant pulled the complainant’s penis and “had the conversation about the pubes”. He said that “once or twice” the appellant had tried to “put his fingers in my bottom”, and that the appellant had “quickly shoved … his hands down the back of my pants … [a]nd then just … tried [to] put … his finger in my bum”. He said that this happened a “fair few” times, and that he recalled the appellant’s fingers actually entering his bottom.
- Towards the end of this first interview, the complainant said that the appellant had “… sucked my penis once”. He said that this occurred when, as he was lying in bed and “half asleep”, the appellant came in to say goodnight, pulled down his bed covers and “was trying [to] jump into bed with me”, following which “there was something going on with my penis and I looked down and there he is going, just sucked on my penis”. That became the subject of count three.
- During this first interview, the complainant frequently described the appellant’s conduct as “weird”. He described the appellant as “the weirdo”. He said that “it wasn’t up until I hit puberty that he was trying to be a bit weird”. He described the appellant shoving his hands down the complainant’s pants and getting “really weird”. When describing the act of fellatio, he described the experience as “really weird”.
- The act the subject of count two, described in the second interview with police, was said to have occurred in about 2010 or 2011, when the complainant was at home in his bedroom. The appellant came into the room whilst the complainant was lying on his chest on the floor playing with Lego. The appellant pulled down the complainant’s pants and underwear and “got his penis into my backside”. He said that it went in twice before the complainant pushed him off. He said that the event “really hurt” and that there was a “tiny bit” of bleeding. He said that his bottom was sore after that incident for two weeks and that he had to go on a “crappy milk” diet for a couple of weeks because he was not “going to the toilet properly”.
- In December 2016, in advance of the trial, the complainant gave evidence which was tendered under s 21AK of the Evidence Act. The complainant there agreed that his allegation of rape had emerged during the course of a “pretty big argument” between the complainant and his father, who had been violent towards him in the past. The complainant said that he had not alleged this incident in the first interview by police because it had been very embarrassing for him. He agreed that he had lied to police, because of that embarrassment, when he had said in his first interview that he had never allowed the appellant to put his penis in the complainant’s anus.
- Count one was particularised as consisting of any combination of two or more of the following acts: touching or attempting to touch the complainant’s penis with his hands, masturbating and attempting to masturbate the complainant with his hands, touching and attempting to touch the complainant’s backside and/or anus with his hands, penetrating the complainant’s anus with his penis (count two), pulling out his own penis and showing it to the complainant and the act of fellatio which was the subject of count three.
- The complainant’s father gave evidence that the relationship between the appellant and the complainant, on his observations, was “friendly”. He recalled that the appellant gave a Lego plane to the complainant as a gift. He recalled also that the appellant would go into the complainant’s bedroom to say goodnight. The father said he “never personally saw anything of a sexual nature” and did not notice the complainant upset or distraught after spending time with the appellant.
- The complainant’s mother testified, saying that the appellant would “go up and say goodnight to the children” alone when he was at their house. She never saw the appellant doing anything of a sexual nature towards the complainant, but said that the boy would “often be more angry and unsettled” after the appellant had been at their house.
Further evidence: a painting and a video recording
- In his first police interview, the complainant said that when he was aged about eight or nine, the appellant “made me a painting” as a present. He described it as “just a photo of me and a Lamborghini and like a background …”. The complainant said that “I thought it was kind of weird because … he took a photo of me with my shirt on, then he … ended up having no shirt on in the photo”. Evidence of the complainant’s mother described how the appellant would paint images from photographs taken by him.
- In his pre-recorded evidence in chief, the complainant identified the picture, and it was then tendered by the prosecutor without objection. The complainant was asked whether he knew from where the image had come, and he said that the appellant had taken a photograph of him at a time when, he recalled, he had been wearing a shirt.
- During the evidence in chief of the complainant’s mother, she described an incident at a social occasion in 2011 at the house of the appellant’s mother. The complainant’s mother was a long-time friend of the appellant’s sister, and it was through her that the appellant had been introduced to the complainant’s family. She testified that when she was inside the house with others preparing some food, someone told her that the appellant was outside sitting on top of the complainant. This was correct: it was depicted within a short video recording which was played to the jury. This was not said to have been an act of sexual misconduct. The act was described by the prosecutor, not inaccurately, as wrestling. The appellant was on top of the complainant, restraining him as the complainant struggled to get free. The appellant was recorded as saying something to the effect this is what happened when “kids go through puberty”. The prosecutor tendered the video recording without objection.
The relevance of the painting and the video
- Early in the trial, in the absence of the jury, the trial judge asked whether there were any “uncharged acts”. The prosecutor said that the video “demonstrates some sexual interest potentially”. On the following day, again in the absence of the jury, the prosecutor told the judge that “[i]n terms of discreditable conduct”, she would not be relying upon the video. But she said that “given the circumstances of how the photograph was taken”, the painting which was made from that photograph was relevant because it showed that the appellant had a sexual interest in the complainant. The trial judge said that he would need to be taken to the authorities on that question, and in particular HML v The Queen. His Honour questioned how the jury could reason from the evidence of the painting that it was “more likely that the charged acts happened.” The prosecutor said that if the evidence was not to be received as showing discreditable conduct, “it is still evidence relevant to the maintaining and the grooming aspect of the relationship there”.
- Shortly after that exchange, the judge asked the prosecutor about the video recording. He asked whether the prosecutor contended that it showed a sexual interest in the complainant. The prosecutor said that as she had already indicated, she would not be relying on this evidence to show a sexual interest. She suggested that its relevance was “to show at the time, which that was in 2011, the defendant’s ability to have dominance over the complainant when they’re wrestling on the ground”. She added that the “video also has audio in which the defendant starts talking about puberty, specifically to the complainant …”. The judge asked defence counsel whether he had “any difficulty with that” to which counsel answered “no”. Counsel conceded that it was relevant in the ways in which the prosecutor had suggested.
- At the beginning of the third day of the trial, again in the absence of the jury, the prosecutor said that she would not be “seeking the discreditable conduct warning”. She said that “it’s a part of the relationship evidence and I don’t require that direction to be given.” When asked by the judge to comment, defence counsel said “I think that’s appropriate”. The judge said “alright … I just want to be clear then that there are no uncharged acts being relied upon as revealing sexual interest.” There were then further discussions between the judge and counsel about what directions should be given on other questions. The judge then returned to the evidence of the painting and asked the prosecutor to again describe its relevance. She said:
“I’m going to use it in relation to the relationship of the gift – how he’s painted – it shows that there is a relationship between them. He’s painted him; he’s painted him with his favourite things – he’s developing a relationship, effectively, grooming evidence … as part of the relationship, making him comfortable. And also the circumstances of how the complainant was sure that he had a shirt on at the time the photograph was taken …”. (Emphasis added.)
The judge asked: “But you’re not suggesting that by doing that, that’s displaying a sexual interest[?]”. The prosecutor answered “It’s a sexual interest, I won’t be saying that, your Honour. But I’m saying he’s groomed this child and that’s because he’s having a sexual relationship with the child.” The judge said “Alright. Yes. Well, by the time of the picture, on the complainant’s case, they’re already sexual acts, is that not right?” The prosecutor answered “Yes. 2009/2010 was the evidence in respect of the gift.” The prosecutor was again asked to describe the relevance of the video recording, and she said that it “shows the dominance of the complainant.” She added that what could be seen on the video represented the “relationship between the pair and a comfortable – how comfortable the complainant is with the defendant and that allows him to, effectively, groom him to perpetrate sexual acts.”
- The judge asked whether there was some “risk of grooming type evidence being so close to sexual interest evidence that, perhaps, HML type directions do need to be given?” Although he added that he thought that this evidence was different because the conduct itself was not in question. In discussing the matter with defence counsel, the judge then said that “the HML direction contemplates disputed sexual interest evidence” and that “that sort of evidence has to be proved beyond reasonable doubt [but that] here the evidence is not disputed.” Defence counsel said that he was content, in effect, with the absence of a direction about the standard of proof for this evidence. The prosecutor then added “I just want to be clear, I’m saying it’s a behaviour towards a particular person … with the prospect of grooming them to participate in sexual acts.”
The prosecutor’s address to the jury
- After the appellant elected not to give or call evidence, the prosecutor began to address the jury. She immediately referred to an excerpt from the complainant’s first interview by police, where the complainant had said:
“Oh, well, when I started getting a bit older he started realising that I was – my voice was changing a bit and then he started saying, ‘Oh, are you – have you started puberty? Have you grown pubes?’ and he’s like, ‘Oh, can I see them?’ and stuff like that.”
The prosecutor then played the video to the jury, describing it as “that recording that you saw yesterday of them wrestling”. She pointed out to the jury that they would have heard on the recording the appellant asking “Do you give up[?]”, and that the appellant could be heard making the reference to puberty which I have already described. Referring to those words, the prosecutor said:
“Well, ladies and gentlemen, you just heard the words coming out of the horse’s mouth, as they would say. Isn’t it alarming that [the complainant] first tells you that there is weird stuff, or weird questions, and that is supported by the words actually [coming] out of the defendant’s mouth in that recording. Ladies and gentlemen, it’s no coincidence, and it’s with – something you would find [the complainant’s] evidence so much more compelling.”
- A little further on in her address, the prosecutor reminded the jury of the complainant’s evidence about “discussions regarding gifts for sexual favours …”. The prosecutor continued:
“Now, regarding the evidence in relation to the conversations about gifts [the complainant] told us that the defendant would buy him gifts if he could touch him or show him his penis.”
- Much further on, the prosecutor returned to the subject of the video. The prosecutor said to the jury:
“Now, that recording also shows the defendant wrestling [the complainant], and in the final portion of that recording it shows how the defendant was able to restrain [the complainant] just using his legs. It shows the defendant’s dominance and control over [the complainant] at that point in time in 2011, and clearly shows that the defendant had the upper hand in terms of physical prowess. Another inference that you may take is that [the complainant], although he’s struggling and wriggling, he doesn’t appear overly distressed by what is going on. He is trying to get free, but it does demonstrate this – a playful relationship between them, which you would suspect is something that the defendant would need to establish to perpetrate these acts on [the complainant] so habitually as [the complainant] has described.” (Emphasis added.)
- The prosecutor then addressed the jury, at some length, to the effect that the appellant had “groomed” the complainant. She said to the jury:
“In my submission to you, it’s an aspect that the defendant actively groomed [the complainant] into a normality that allowed him to do these things to [the complainant], and also in an effort to nip in the bud potentially his complaining to others.
As I said earlier, he’s clearly a vulnerable boy who has some behavioural issues. Would anyone really put two and two together that he may being preyed upon by someone? And how would that affect them believing him? And think about how [the complainant] felt, potentially, with those things.
Now, there’s also the issue of presents, which – his parents confirm that the defendant would give [the complainant] presents. Ladies and gentlemen, the defendant bought or offered [the complainant] presents, which is another concerning aspect, in my submission to you. It again goes to grooming to accustom [the complainant] to participate in these sexual acts and to allow the abuse to continue.
Another – and if I might just show you, I’ll hold it up – exhibit 1 that was tendered, the painting, I would suggest to you that’s another concerning feature that demonstrates the relationship and closeness between the defendant and [the complainant]. Firstly, it’s been disclosed in the evidence that it had [the complainant] and some of his favourite things such as the Lamborghini, and his Mum mentioned the Harry Potter …
Now, one of the most concerning things is that [the complainant] recalled the pose and the photograph being taken to create the photo. He says he was wearing a shirt in his brother’s room, and you can remember that exchange when he spoke to the judge about it in court. Now, his mum accepted, when asked by defence counsel, that there possibly could have been a photograph when he got out of the pool without his sun shirt on, but who would be in the best position to remember the pose that’s painted in that photograph? My suggestion to you would be [the complainant]. It’s just another concerning feature that shows the relationship between two people.
So I would suggest to you, ladies and gentlemen, that the defendant’s conduct has a clear level of grooming involved. [On] the way [the complainant] articulated his complaint to you, it starts with the uncomfortable hugs, moves to the questioning of the sexual development and then progressed to physical acts.” (Emphasis added.)
The defence address to the jury
- Defence counsel argued that the complainant was either mistaken or untruthful in saying that the various acts of sexual misconduct occurred. It is unnecessary to describe here the various arguments which were developed in support of that case. What is presently relevant is what was said about the evidence of the painting and the video recording. Towards the end of his address, defence counsel referred to the video and suggested that it was “fairly innocuous”. He argued that the video showed “nothing more than [the appellant] playfully wrestling children, with other children right around him, with the full knowledge he’s being filmed at the time.” As to the “painting and the gifts that were given”, defence counsel said that “if these were geared at grooming an individual to commit crimes against them, why is it done in full knowledge of his parents and, in fact, discussed with his mother, at least?” Again, he suggested that there was “nothing surreptitious” about the conduct and that it was “fairly innocuous”.
The directions of the trial judge
- The judge directed the jury about the painting and the video as follows:
“Members of the jury, I next turn to an aspect of the evidence the Crown has mentioned in the context of a developing relationship between the complainant and the defendant. The Crown relies on the evidence of the [painting] in exhibit 1 and the video, exhibit 12, as showing the developing relationship between the complainant and the defendant. The Crown argues the video shows the defendant’s dominance over the complainant and that the defendant’s reference to puberty is significant, having regard to the fact that the defendant had spoken to the complainant about that earlier. The evidence cannot be used to conclude that the defendant is a person with a tendency to commit the type of offences charged. The same applies to the other evidence of the defendant giving the complainant gifts.
That evidence has been led for the limited purpose of showing the development of the relationship between the complainant and the defendant and it cannot be used for any other reason. Specifically, as I have already said, this evidence cannot be used to reason that the defendant is a person with the tendency to commit offences of the type charged. The defence, I should mention, argues that this is irrelevant evidence anyway. The defence argues that the video is innocuous. The defence argues that it shows playful wrestling and it occurred in circumstances where the defendant was fully aware that he was being filmed. As to the painting, the defence argued that there was nothing secretive about that and that it is not relevant either. The defence, basically submits this evidence does not assist the Crown case at all.”
- The painting and the video were discussed again, in the course of the judge’s summaries of the respective arguments. The judge summarised the prosecutor’s argument in this respect as follows:
“[The prosecutor] submitted that the recording, exhibit 12, confirms that the defendant did speak to [the complainant] about puberty. She submitted that the recording shows the defendant exercising dominance and control over [the complainant]. She submitted that the video showed a playful relationship. She submitted that for this sort of offending to take place, the defendant had to build a relationship with [the complainant]. [The prosecutor] referred to exhibit 1, the painting, that she submitted demonstrated a closeness in relationship. It contained some of [the complainant’s] favourite things, the Lamborghini and the Harry Potter pictures. That was another feature, she submitted that showed the nature of the relationship between the defendant and the complainant.”
- Notably, the judge did not refer to that part of the prosecutor’s address, set out above at  in which the prosecutor had referred to “one of the most concerning things” being “the pose and the photograph being taken” which was used for the painting, and the evidence that the complainant was wearing a shirt when photographed but was depicted without a shirt in the painting. Nor did he refer to the prosecutor’s argument that the appellant had “actively groomed” the complainant and the suggested relevance of the painting in that respect.
- The judge summarised the defence argument about this evidence as follows:
“[Defence counsel] submitted that the video, exhibit 12, is innocuous. He submitted there was no sexual connotation to what occurred in that recording. He submitted that you should view it as playful wrestling. It was recorded in full knowledge by the defendant, but that it was being filmed. Similarly, he submitted the painting was not relevant. There was nothing secretive about that and he submitted it was innocuous.”
The first ground of appeal: the arguments
- The appellant’s argument is that the evidence constituted by the painting and the video was relied upon as proof that the appellant had a sexual interest in the complainant. If it was, then it is said that according to a majority of the judgments in HML, the jury should have been directed that they were not to find that this evidence proved that the appellant had a sexual interest in the complainant unless that was established to their satisfaction beyond reasonable doubt.
- It is further argued by the appellant that the judge’s use of the term “the relationship”, when describing the relevance of the evidence according to the prosecutor’s argument, compounded the difficulty because, it is suggested, the jury could have understood this to be a reference to the sexual relationship which was the subject of count one. Accordingly, when the judge referred to the prosecutor’s argument that “for this sort of offending to take to place, the defendant had to build a relationship with [the complainant]”, at the same time he referred to her argument that “the painting … demonstrated a closeness in relationship” and that it “showed the nature of the relationship between the defendant and the complainant.”
- It is submitted by counsel for the respondent (who was not the prosecutor at the trial) that neither the painting nor the video showed anything which could be described as discreditable conduct in this relevant sense, that is to say conduct which showed a sexual interest in the complainant. It is said to be significant that the painting depicted the complainant only from the waist up. As to the complainant being depicted without a shirt, the respondent’s submissions point out that it was the evidence of the complainant’s mother that the photograph which was used for this painting was one of the complainant getting out of a swimming pool, when he was not wearing a shirt. However the prosecutor at the trial, whilst acknowledging that the mother had “accepted, when asked by defence counsel, that there possibly could have been a photograph when he got out of the pool without his sun shirt on” argued to the jury that the complainant’s recollection was to be preferred because he “would be in the best position to remember the pose that’s painted in that photograph” and that the complainant’s evidence had been that he had been wearing a shirt when the relevant photograph was taken.
- As to the prosecutor’s argument to the jury that the absence of the shirt was “most concerning”, it is now submitted that this was an inconsequential comment, because the prosecutor had not articulated why that was a concerning feature. As to the video recording, it is now argued that the film “as a whole depicts good natured fun between an adult male and teenage boy” and that it does not demonstrate a sexual interest in the complainant.
- It is also submitted for the respondent that the fact that defence counsel did not seek the direction which is now suggested by the appellant’s argument, demonstrates that the directions which were given to the jury could not have been thought to suggest that these exhibits could be used as a step in the proof of a sexual relationship. It is further submitted that if such a direction was required, no miscarriage of justice had arisen because the jury could not have reasoned from the nature of these two exhibits that they demonstrated a sexual interest in the complainant.
The first ground - consideration
- Where a person is charged with a sexual offence against a child, and it is proved, otherwise than by the evidence of the act or acts charged, that the person had a sexual interest in the child, the fact of that interest is relevant. It is relevant because the accused’s sexual interest in the complainant rationally affects the probability of whether the charged act or acts occurred.
- Evidence of other sexual acts by the accused involving the same child, often described as uncharged acts, is relevant by its proving a sexual interest in the complainant. And a sexual interest in the complainant may be proved also by evidence of other conduct of the accused which is not itself a sexual offence.
- Thus in HML the prosecution relied upon certain conduct, not the subject of the charges, as affecting the probability of whether the charged acts occurred. The conduct was comprised of uncharged acts, that is to say other sexual assaults upon the complainant, and other conduct, namely the accused’s filming the complainant and buying her a particular style of underwear. Hayne J described the relevance of this conduct as follows:
“ … All these forms of conduct were tendered to show the expression of a sexual interest of the appellant in the complainant. That interest was said to have been demonstrated by translation of that interest into action, in some cases sexual acts of the kind which constituted the offences being tried.
 Demonstrating the appellant’s sexual interest in the complainant would demonstrate his motive to act as the charges being tried alleged he had acted.”
- The occurrence of uncharged sexual acts against the complainant by the accused will readily demonstrate a sexual interest which rationally affects the probability of the occurrence of the acts as charged. However acts which do not constitute sexual offences, but which are said to be relevant as disclosing a sexual interest in the complainant, will require interpretation. Some conduct in that category will readily prove a sexual interest. Other conduct will be equivocal. In each case, if the evidence is admitted, the jury will have to consider whether, in fact, that conduct occurred (where that fact is in issue) and whether, if so, it is to be interpreted in a way which is probative of a sexual interest.
- Evidence of other conduct of the accused, in relation to the complainant, is sometimes described as relationship evidence. But as Hayne J said in HML, that description may or may not capture the relevance of the evidence in a particular case. In HML, Kiefel J (as her Honour then was) described two purposes for which relationship evidence may be tendered. One purpose is “to show the sexual interest the accused had in the complainant at the time of the commission of the offences [because] [t]hat tendency, if proved, will in most cases make it likely that the accused committed the offences.” The other, her Honour said, is “for the more limited purpose of providing answers to questions which might naturally arise in the minds of the jury, such as questions about the complainant’s reaction, or lack of it, to the offences charged, or questions about whether the offences charged were isolated events.”
- Because so called “relationship evidence” can be admitted for different purposes, a jury must be instructed as to what constitutes the purpose of the evidence in the particular case and how it may be used by them. In HML, Kiefel J said that if it is admitted to prove that the accused had a sexual interest in the complainant, “[t]he jury will require the usual directions with respect to the use of circumstantial evidence and clear directions as to proof of the sexual interest as an intermediate fact.” As her Honour had earlier observed, that proof of the sexual interest as an intermediate fact would be proof beyond reasonable doubt, and a jury would have to be instructed accordingly. By an intermediate fact, her Honour was describing a fact constituting a link in a chain of reasoning towards an inference of guilt. On the other hand, if relationship evidence is admitted for the second purpose described by Kiefel J, the jury must be instructed as to the limits on the use to which the evidence can be put.
- In HML, the Court was divided on the questions of the bases for the admission of evidence of this kind, how such evidence could be used and what standard of proof was to be applied by the jury. But as Hayne J observed in that case, a majority of the Court was of the opinion that, as Kiefel J there said, in the ordinary course a jury would be instructed that they must only find that the accused had a sexual interest in the complainant if that was proved beyond reasonable doubt.
- The admissibility of evidence of this kind is a different question from its relevance, as the judgments in HML demonstrate. In HML, Hayne J, with whom Gummow and Kirby JJ agreed, said that for it to be admissible for the purpose of proving a sexual interest, the evidence had to satisfy the test from Pfennig v The Queen, which is “whether there is a rational view of the evidence that is consistent with the innocence of the accused”, or as Hayne J explained it in HML, “whether the evidence in question supports an inference that the accused is guilty of the offence charged, and is open to no other, innocent, explanation.” But that was not the unanimous view in HML. And in the later case of BBH v the Queen, Crennan and Kiefel JJ said that the Pfennig test had not been universally accepted and that in those jurisdictions where the test had not been abolished by statute (being in every state and territory save for Queensland, South Australia and the Northern Territory), “the test continues to apply [only] in its proper sphere of operation.” (Emphasis added.)
- In the present case, there was no objection to the admission of the evidence constituted by these two exhibits. Nor is it argued in this Court that the evidence was wrongly admitted. The present arguments concern the questions of the relevance of the evidence, the purpose for which it was tendered and to be used by the jury and what directions ought to have been given about those matters.
- I have set out earlier at  to  the exchanges between the prosecutor and the trial judge about the relevance of this evidence. As that summary shows, the prosecutor said different things at different times on the subject. Quite rightly, the judge pressed the prosecutor for a description of the relevance of the evidence, and whether it was tendered for the purpose of establishing a sexual interest in the complainant. The prosecutor’s response was to disavow that as the purpose of the evidence, but at the same time to say that, at least in respect of the painting, that this was “grooming evidence … as part of the relationship, making him comfortable.”
- Ultimately, what mattered was the purpose for which the prosecutor asked the jury to use this evidence. The prosecutor argued to the jury in terms which suggested, without the use of the words themselves, a sexual interest in the complainant. The prosecutor’s repeated references to the defendant “actively grooming” the complainant could be understood only as conduct which was motivated by the defendant’s sexual interest in the complainant. The prosecutor suggested other ways in which the video could have been relevant, such as that it depicted the relative sizes of the defendant and the boy. Nevertheless, one suggested purpose of this evidence was to prove that the defendant’s state of mind was such that there was a particular propensity to engage in conduct of the kind which constituted the alleged offences.
- The prosecutor’s description of the absence of a shirt in the painting, as “most concerning” suggested that the defendant’s conduct in altering the image in the photograph, by removing the shirt, revealed a sexual interest.
- The prosecutor suggested that the video illustrated the relationship between the defendant and the complainant, which “you would suspect is something that the defendant would need to establish to perpetrate these acts … so habitually …”. The prosecutor referred to what could be heard from the recording, as a reference to puberty, as “alarming”, in that it corresponded with the “weird stuff, or weird questions”, of the kind which the complainant had described to police. Again, that argument suggested that this exhibit was independent proof of a sexual interest.
- The unambiguous effect of the prosecutor’s address to the jury was to suggest that they should treat these exhibits of proof of a sexual interest in the complainant at any relevant time. That argument, if accepted, had the potential to strengthen the prosecution case, by increasing the probability that the charged acts had occurred. The importance of that evidence, if the prosecutor’s argument was accepted, came from the fact that it was independent of the complainant’s evidence. Undoubtedly the appellant had prepared and given the painting and he had been the person seen and heard in the video.
- The jury had to consider the use which could and should be made of that evidence. They had to consider whether the exhibits, considered together, were to be interpreted in the way for which the prosecutor contended, or instead in the way for which defence counsel had argued.
- The jury needed instruction from the trial judge about the relevance of a sexual interest, if that was demonstrated by evidence other than the complainant’s evidence of the conduct which was the subject of the charges. They required instruction as to what evidence it was that they were to consider, in deciding whether there was a demonstrated sexual interest. And they required instruction that they were not to find that the appellant had a sexual interest in the complainant unless they were satisfied of that fact beyond reasonable doubt. Regrettably, none of those instructions was given.
- As to the first of those instructions, it was necessary for the jury to be told that the effect of the prosecutor’s argument about these exhibits was that they demonstrated, independently of the complainant’s evidence, that the appellant had a sexual interest in him. The jury should then have been told that if they found that to be the fact, upon the basis of these exhibits, that fact would make it more probable that there were sexual acts by the appellant against the complainant.
- As to the second of those instructions, in BBH there was a division of opinion as to how a certain piece of evidence, said to be probative of a sexual interest by the accused in the complainant, was to be assessed. The evidence was from the complainant’s brother, who said that he had witnessed an incident involving his sister and the appellant (who was their father), which the prosecution said was probative of a sexual interest by the father in his daughter, and in turn, of his guilt on a charge of maintaining a sexual relationship with her. The appellant argued that the brother’s evidence was equivocal, in that the event which he described could have been something which had no sexual character. Hayne J, with whom Gummow J agreed, said that the evidence of the brother itself had to show that the accused had a sexual interest. Their Honours’ view was unchanged from HML, where Hayne J had said that the evidence of uncharged conduct is not admissible to prove a sexual interest if its interpretation of showing a sexual interest “depends upon the prior acceptance of other evidence of separate events demonstrating that interest”. In BBH, French CJ said that the brother’s evidence was not to be interpreted by “reference to evidence which the brother’s testimony was adduced to support”. French CJ, Gummow and Hayne JJ were in dissent, in holding that the brother’s evidence was inadmissible as propensity evidence.
- Of the majority in BBH, Crennan and Kiefel JJ (in a joint judgment) and Bell J held that the brother’s evidence was not equivocal, when it was viewed, not in isolation, but in conjunction with other evidence in the prosecution case. The other majority judgment was that of Heydon J. In his Honour’s view, the brother’s evidence had the capacity, taken by itself, to support a finding beyond reasonable doubt that, in the incident witnessed by the brother, the accused had either committed an offence of a sexual nature, or carried out other conduct, in either way revealing his sexual passion for the complainant. Consequently, in BBH, there was no majority view as to whether evidence could be probative of a sexual interest if its interpretation in that way was dependent upon the acceptance of other evidence in the prosecution case.
- That question, however, does not affect the present case. In this trial, apart from the conduct related by the complainant, the only evidence which could be said to be relevant, or potentially relevant, for this purpose was that constituted by these two exhibits. The evidence of the painting and the video, if equivocal, could not be made relevant only by the use of the complainant’s evidence of the conduct which these two exhibits were said to prove.
- The jury was effectively asked by the prosecutor to treat these exhibits as proof, independently of the evidence of the conduct which was charged, of a sexual interest. There was a real risk that that argument would be accepted, and that the fact of that sexual interest would be used as a step in the jury’s reasoning towards a verdict of guilty. That risk required the jury to be instructed as to the standard of proof. The jury should have been instructed that they were not to find, from these exhibits, that the accused had a sexual interest in the complainant unless that fact was established to their satisfaction beyond reasonable doubt. If the evidence had an interpretation which was innocent, in that it did not reveal a sexual interest, the jury was not to make that finding.
- The jury was instructed that this evidence was not to be used “to conclude that the defendant is a person with a tendency to commit the type of offences charged.” In my respectful view, that direction was insufficient. The direction did not explain the true effect of the prosecutor’s argument to the jury, the relevance of a demonstrated sexual interest in the complainant or the standard of proof to be applied. It must be acknowledged here that this direction was the result of unhelpful submissions from counsel when the judge was seeking their assistance in his preparation of the summing up.
- No objection was taken to the summing up. But the respondent does not suggest that this could be explained by a forensic decision and in my view, no such explanation appears. The appellant’s prospects of an acquittal could only have been improved by the necessary directions being given.
- It is said for the respondent that if such a direction was necessary, there was no miscarriage of justice “because the jury could not have reasoned from the nature of these two exhibits that they demonstrated some sort of sexual interest by the appellant in the complainant.” In other words, it is said that there was no prospect that the exhibits would have been used in the way for which the prosecutor had argued. That argument cannot be accepted. The prosecutor argued that the exhibits had this special significance and it was not inevitable that her argument would be rejected. It should be noted that this submission is to the effect that there has been no miscarriage of justice in the terms of s 668E(1) of the Criminal Code (Qld), rather than being an argument for the application of the proviso under s 668E(1A).
- In my conclusion therefore, this first ground of appeal must be upheld. It cannot be said that the absence of the required direction had no consequence for the outcome on counts one and three. On this ground, I would allow the appeal against each conviction and order a re-trial.
The second ground of appeal
- I would be unpersuaded to allow the appeal against conviction on the first count upon ground two. My reasons are that it was open to the jury to convict upon the charge of rape and that, in any case, there is no real prospect that if a juror was persuaded that the alleged rape occurred, that could have been material for the verdict on count one.
- As to whether it was open to the jury to be persuaded of the appellant’s guilt on the charge of rape, the appellant’s submissions refer to these features of the case. Initially the complainant had denied that any such thing had ever occurred. It was not simply a case where he had not mentioned the rape in his initial interview by police. The complainant’s justification was said to be his embarrassment in describing that particular offence. But it is argued that this justification was unpersuasive, having regard to the nature of some of the other acts which he did describe at the outset. It is submitted that it was an unlikely occurrence, when it was said to have happened on an occasion when the complainant’s parents were at home. The complainant said that the appellant had gone downstairs after the act of rape was complete and had said to the complainant’s mother that he had “just had a chat with him”. It is submitted that there was evidence which smacked of the construction on the complainant’s part, for it is unclear how the complainant could have known of that conversation.
- It is argued that there was no “detail provided to make realistic proposition that the appellant might have achieved an unprecedented act of anal penetration with an 11 year old boy”. His pants and underpants had been removed only “down to about (his) calves and … knee[s]”. It is pointed out that there was no evidence of any noise being made at the time of this event. It is emphasised that there was no evidence to support the complainant’s recollection that he had had a fortnight of problems with his bowels as a result of the act. And it is said that it was significant that the complaint was made in the course of a heated argument between the complainant and his father.
- All of those matters are relevant and together they provided a very substantial basis for an argument to the jury that they should acquit upon this count. But considered together, they did not result in the rape charge being one which was inevitably flawed and unable to be accepted by the jury. The fact that some jurors were not persuaded of the appellant’s guilt on this charge is not surprising, but nor is the fact that others were persuaded. Ultimately, each of the matters relied upon in the appellant’s argument was capable of some explanation and it was open to the jury to convict the appellant on this charge.
- But if a guilty verdict on this charge was not open, was there a miscarriage of justice in the conviction on count one? The argument is not that a guilty verdict on count one was unreasonable, if a verdict of guilty on count two was not open. The argument is that there is a possibility that some of the jury relied upon a conclusion of guilt on count two in finding the appellant guilty on count one. That could have been critical only if there is a more than a theoretical possibility that some of the jury were satisfied only that there were two sexual acts committed, and that one of them was that the subject of count two.
- Because of the verdict on count three, it is known that the jury was persuaded of the occurrence of that act. What must then be considered was whether there was a possibility that some of the jury were persuaded about the commission of the rape of the complainant, but of no other act. In my view there is no such possibility. The jury could not have been left unpersuaded about the complainant’s testimony that there were many sexual acts, if they accepted his testimony about count three. As their failure to agree on count two demonstrates, the prosecution case on count two was relatively weaker than on the other counts.
Conclusion and orders
- The appellant’s first ground of appeal is established. I would order as follows:
- appeal allowed;
- the convictions on counts one and three on the indictment be set aside; and
- the appellant be re-tried on those counts.
- BROWN J: I agree with the reasons of McMurdo JA and the orders proposed by his Honour.
 Criminal Code (Qld), s 229B(1).
 Criminal Code (Qld), s 349(1).
 Criminal Code (Qld), s 210(1)(a).
 (2008) 235 CLR 334;  HCA 16 (“HML”).
 (2008) 235 CLR 334.
 Ibid at 395  (Hayne J).
 Ibid at 395 .
 Ibid at 395  – .
 Ibid at 395 .
 Ibid at 502 .
 Ibid at 502 .
 Ibid at 502 .
 Ibid at 500 .
 Citing Shepherd v The Queen (1990) 170 CLR 573;  HCA 56.
 HML (2008) 235 CLR 334 at 502 .
 Ibid at 416 .
 See ibid at 362  (Gummow J), 371  (Kirby J), 390  (Hayne J) and 500  (Kiefel J).
 (1995) 182 CLR 461;  HCA 7.
 Ibid at 483.
 (2008) 235 CLR 334, 383 .
 See, for example, ibid at 502  (Kiefel J).
 (2012) 245 CLR 499;  HCA 9 (“BBH”).
 Ibid at 542 .
 As described above at .
 (2012) 245 CLR 499 at 526 .
 (2008) 235 CLR 334 at 384 .
 (2012) 245 CLR 499 at 521 – 522 .
 Ibid at 546 – 547  –  and 549  –  (Crennan and Kiefel JJ) and 557 – 558  –  (Bell J).
 Ibid at 534 .
- Published Case Name:
R v Douglas
- Shortened Case Name:
R v Douglas
 QCA 69
Sofronoff P, McMurdo JA, Brown J
17 Apr 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC2485/16 (No Citation)||20 Mar 2017||Date of Conviction (Rafter SC DCJ).|
|Appeal Determined (QCA)|| QCA 69||17 Apr 2018||Appeal against conviction allowed and retrial ordered: Sofronoff P and McMurdo JA and Brown J.|