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- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Brown  QCA 33
BROWN, Danny Thomas
CA No 210 of 2018
DC No 97 of 2018
Court of Appeal
Appeal against Conviction
District Court at Ipswich – Date of Conviction: 26 July 2018 (Horneman-Wren SC DCJ)
3 March 2020
16 October 2019
Sofronoff P and Henry and Davis JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – the appellant was found guilty after a trial of six counts of rape, five counts of indecent treatment of a child and one count of maintaining an unlawful sexual relationship with a child – where there were other allegations being heard under a separate indictment for sexual offences committed by the appellant against the complainant’s sister – where the appellant’s counsel at trial during cross-examination suggested that the complainant had fabricated their allegations against the appellant – where counsel had followed the appellant’s instructions to do so – where questioning the complainant’s motive to lie rendered admissible evidence by the complainant’s sister – where the trial judge directed the jury about the use of this evidence – whether the appellant’s counsel conducted the cross-examination in a way that caused an unfair trial – whether there has been a miscarriage of justice
Criminal Code (Qld)
BRS v The Queen (1997) 191 CLR 275;  HCA 47, cited
De Jesus v The Queen (1986) 61 ALJR 1;  HCA 65, cited
Gilbert v The Queen (2000) 201 CLR 414;  HCA 15, distinguished
Harriman v The Queen (1989) 167 CLR 590;  HCA 50, cited
HML v The Queen (2008) 235 CLR 334;  HCA 16, cited
Hoch v The Queen (1988) 165 CLR 292;  HCA 50, distinguished
Hughes v The Queen (2017) 263 CLR 338;  HCA 20, cited
KRM v The Queen (2001) 206 CLR 221;  HCA 11, cited
Mraz v The Queen (1955) 93 CLR 493;  HCA 59, considered
Palmer v The Queen (1998) 193 CLR 1;  HCA 2, considered
Pfennig v The Queen (1995) 182 CLR 461;  HCA 7, cited
R v Bevinetto  2 Qd R 320;  QCA 219, cited
R v Boardman  AC 421;  3 All ER 887, cited
R v Cranston  1 Qd R 159, distinguished
R v Griffin (No 1) (1868) 1 QSCR 176, cited
R v O’Meally (No 2)  VLR 30;  VicLawRp 7, cited
R v Phair  1 Qd R 136, cited
R v T  QCA 376, cited
R v Taylor  QCA 96, cited
Sutton v The Queen (1984) 152 CLR 528;  HCA 5, cited
TKWJ v The Queen (2002) 212 CLR 124;  HCA 46, considered
P J Callaghan SC for the appellant
M J Hynes for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: The appellant was convicted after a trial of six counts of rape, five counts of indecent treatment of a child and one count of maintaining an unlawful sexual relationship with a child. The complainant was the same female child in each case. She was aged between five and 12 years at the time of the offences. The complainant had, among her siblings, a sister who was a few years younger than her, whom I will call by the pseudonym “Nancy”, as well as an older sister who was 12 years older than her, to whom I will refer by the pseudonym “Amy”.
- Two indictments were presented charging the appellant with sexual offences. One indictment concerned offences committed against the complainant. The other indictment charged offences alleged to have been committed against Nancy. The charges in relation to the complainant were tried first and are the subject of this appeal.
- Because of the nature of this ground of appeal, and because the appellant sought to lead, and did lead, evidence on this appeal about his dealings with his legal representatives, the content of those dealings has been disclosed. Some of those dealings are material to this appeal.
- According to the appellant’s solicitor’s contemporaneous note, at one of the first conferences with his client, the appellant said that “the biggest issue [was that] he has no defence”. (BVH 2). At a later conference, after the committal, his then barrister (who was not his trial counsel) advised the appellant that the complainant “was forthright [in her evidence]… and appeared believable”. He said that the “jury [was] likely to believe her acc[ount]” and that the “likely outcome is they will find you guilty”. He said that it was “lucky there are 2 indictments, usually together & jury will believe both if they believe one. Problem is they are both almost as serious as each other”. To this, the appellant replied, “haven’t got a leg to stand on for either”. (BVH 7). At a later conference the appellant told his legal representatives that “he didn’t do any of it”. He offered, for the first time, that the complainant’s mother, to whom I will refer by the pseudonym “Jane”, “hates” him. He instructed his lawyers that he was going to plead not guilty to the charges. (BVH 12).
- In July 2018, a few days before the trial, the appellant’s solicitors briefed the barrister who ultimately conducted the trial. He informed the appellant that it seemed that Jane and the complainant had “discussed this a lot”. The appellant responded “it all started in May – they planned it”. (BVH 16).
- It is natural for a jury to ask itself why a complainant in a sexual offence case might fabricate the allegations against the accused. The same inquiry arises in the mind of defence counsel. I have dealt with the problems surrounding the issue of a complainant’s motive to lie in another case and will not repeat what I said. In this case the issue arose first in discussions between the appellant and his counsel, who asked why, in the appellant’s opinion, the complainant would make up her allegations. (BVH 16). The appellant said that Jane did not like him. He gave some instances demonstrating that dislike. His counsel said, “we can throw the book at [Jane] but [that] might not work”. Later, in response to the appellant’s question whether there was a chance that he would “win”, counsel pointed out that statements from the complainant’s siblings showed that she had made complaints to them before Jane had ever discussed the matter with the complainant. (BVH 16). The significance of this was that these complaints had therefore been made before Jane had had any opportunity to concoct them. To ensure that the appellant understood this, his counsel said, “…what I’m saying is that this pre-dates any involvement of [Jane]”.
- Jane’s involvement arose because her younger daughter, Nancy, made allegations to her mother that the appellant had raped her. This prompted Jane to ask the complainant whether she had had any similar experience. Her revelations led to the trial in this matter. Consequently, any challenge to the complainant’s credit based upon an allegation of concoction by her and her mother would run the risk that Nancy’s complaints would emerge.
- On the morning of the first day of the trial, the appellant gave final instructions that he would plead not guilty. Defence counsel told the appellant that he “will be suggesting [Jane] doesn’t like you [and the complainant] is making this up”. He asked whether the appellant could “think of anything else” and the appellant replied that that was the “only thing I can think of”. (BVH 16).
- When the trial began the learned trial judge asked the prosecutor to confirm that the prosecution would not be calling Nancy as a witness. The prosecutor did so and he informed the judge that, by agreement with defence counsel, he would ask leading questions of Jane to avoid the risk of Nancy’s allegations coming out. That was the correct position to take because, in the way that the prosecution had elected to proceed, Nancy’s allegations were irrelevant to the prosecution case.
- The complainant was the first witness. In cross-examination, defence counsel tested her upon the detail of her allegations and suggested that there were several discrepancies and inconsistencies in her evidence. He put directly that she had fabricated her allegations. Then, in accordance with his instructions, he asked her about Jane’s involvement in the making of the complaint to police. He put to her that she and her mother had “put your heads together to come up with this story”.
- In the absence of the jury, the prosecutor submitted to the learned trial judge that the cross-examination of the complainant by the defence counsel had rendered admissible evidence from Jane to explain what had prompted her to question her daughter about the possibility that the appellant had committed sexual offences against her. The prosecutor submitted that it was now open for him to lead evidence to explain Jane’s true motivation in maintaining her daughter’s allegations even if that involved leading evidence about the appellant’s sexual offending against another person. After hearing the arguments, the learned trial judge ruled that the evidence had become admissible. He said that he would direct the jury about the limits upon the use of that evidence and about how they were not to use the evidence as evidence of the appellant’s guilt. Before the jury heard the evidence, the learned trial judge conducted a voir dire to determine with precision the evidence that would be led. It emerged that the Jane had told the complainant that she wanted to speak to her because Nancy had said that the appellant “had been raping her since she was five years old”. The evidence actually led before the jury by the prosecutor was as follows:
“And the information she provided you was that [Nancy] had told her something of a sexual nature had happened between the defendant and [Nancy]? --- Yes.
And then she asked you if anything like that had happened to you? --- Yes.
And you responded to that? --- Yes
Okay. It was after that you go to make your statement to the police? --- Yes.”
- Later, Jane gave evidence as follows:
“[Nancy] had told you that something of a sexual nature had happened between the defendant and herself. Okay. After she told you that, did you send a text message to [the complainant], telling her that you wanted to talk to her? --- I sent her a message and I said, “I need to talk to you. I think we have a problem.””
- After the judge’s ruling, defence counsel gave advice to the appellant about the prospects of a mistrial being declared. According to his instructing solicitor’s notes, he observed that if an application was made and was successful then the Crown could seek to have both indictments heard together at a retrial. In that case, an acquittal would become less likely and, for that reason, he advised against applying for a mistrial.
- The appellant’s sole ground of appeal is:
“The appellant’s trial was rendered unfair, and a miscarriage of justice occurred by reason of the manner in which his case was conducted by his legal representatives.”
- In relation to the cross-examination about concoction between Jane and the complainant, the appellant submits that “this line of questioning was never going to help, but was certainly going to harm. The only rational courses open to any counsel were either to avoid the situation arising in the first place, or for the trial to be aborted once it arose”. He submits that “[o]n any analysis it cannot be said that the appellant’s trial was a fair one”.
- No ground of appeal contends that the evidence about Jane’s motivation was inadmissible or that the direction, which the learned trial judge gave to the jury about the permissible uses of that evidence, was faulty. Nor does the written outline make any such submissions. That reflects the undoubted correctness of the learned trial judge’s ruling and subsequent direction to the jury. It also reflects the prosecutor’s good judgment in minimising the prejudicial effect of the evidence about Nancy’s complaint.
- The learned judge’s direction was as follows.
“Now, ladies and gentlemen, in the course of the evidence of both the Complainant, and her mother, you heard mention of a suggestion that something of a sexual nature had happened between the defendant and the Complainant’s sister. That evidence is only relevant to your consideration of how or why it was that the Complainant came to indicate to her mother at the time at which she did that the defendant had raped her, that is, [the Complainant]. That is something which you might think is relevant to the credit of both [the Complainant] and her mother, it having been put to both of them that it was [the mother] who put [the Complainant] up to making a false complaint about the defendant. It is before you simply as part of a narrative of events as to how and why that may have come about at that time – that is the complaint may have come about at that time.
Now you must understand, that a suggestion that something of a sexual nature had happened between the defendant and [Nancy], forms no part of the case against the defendant. I formally direct you that you must not consider that brief mention of something between [Nancy] and the defendant at all, in considering whether the defendant committed the offences in the charges before you. That is because it would be quite wrong for you to conclude that the defendant is someone in respect of whom there’s been some unspecified suggestion of something of a sexual nature having occurred between him and [Nancy], and therefore he is a person who has a tendency to commit the type of offence with which he is charged. And it would be quite wrong for you reason [sic] that because there has been some mention of such a suggestion, therefore it is likely that he committed a charged offence or offences.
Again, I direct you that you are not to consider that at all, in considering whether the defendant is guilty or not guilty of the offences charged. It may appear to you that witnesses, other than those who have given evidence, might have been able to give some relevant evidence on some aspect of the case. You may not speculate about what others, who were not called, might have said had they been called. You should act only – or should act on the basis of the evidence that has been called, and only on that evidence.”
- While the appellant submits that defence counsel should have asked for a mistrial “and that application ought to have been granted”, the outline does not identify any basis for that submission. As I have said, no argument was addressed on appeal to the effect that the evidence was inadmissible and no argument was offered that there was any defect in the summing up. No possible basis upon which to discharge the jury has been offered.
- In TKWJ v The Queen, Gleeson CJ said that
“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial… [I]n the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.”
- Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions and assess risks.
- In this case, the appellant’s arguments, both written and oral, incorrectly concentrate upon the choices that were open to defence counsel and upon the asserted lack of wisdom of the decision that he ultimately made to cross-examine the witnesses about their motives in making the allegations. If it matters, I am not convinced that counsel was wrong to take the path that he chose. His client was faced with allegations of multiple serious sexual offences against a child that had happened years previously. Such allegations are notoriously difficult to refute and, as a result, the jury is always warned about the difficulty faced by an accused in such cases. The learned trial judge gave such a warning in this case. Absent any evidence of alibi, or other similar objective bases to suggest that the offences could not have been committed, an accused usually has nothing to offer to rebut a complainant’s detailed allegations except a bold denial. An additional burden faced by someone facing such accusations is the inevitable question that the jury will ask itself: why would the complainant make up these things? The appellant submitted in oral argument that this was a question that “we’re not allowed to ask and nobody’s allowed to ask”. That submission is incorrect. In R v Taylor, Pincus JA said:
“I do not believe that anything which was said by the High Court in Palmer holds that it is not material for a jury to think about why a complainant, who may possibly be lying rather than mistaken, would lie. A jury would, reasonably enough, regard it as an impermissible intrusion into their function if they were instructed not to take that factor into consideration. I cannot accept that it is necessarily wrong for a Judge to tell them that they may do so.”
- To the same effect was the remark of Thomas JA in R v T that it is “almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint”.
- What must not be done is for anyone to suggest that the accused is obliged to answer that question. Sometimes, the jury should be warned about that ramification of the prosecution’s burden of proof.
- In this case, if the complainant’s and her mother’s motive to lie was not put in issue, it is difficult to see how a conviction would not have been almost certain.
- In any event, the decision to cross-examine on this subject was one that was taken after due consideration and it was a deliberate course chosen in the hope of gaining an advantage for the appellant’s benefit. The fact that now, after conviction, the choice seems, to the appellant, to have been the wrong one, is immaterial.
- In Mraz v The Queen, Fullagar J said that the question whether there has been a miscarriage of justice has to be considered in the light of the right of every accused person to have a trial in which the relevant law is correctly applied and explained to the jury and in which the rules of evidence and procedure are strictly followed. If there is a failure in any of those respects, and if the accused may thereby have lost a chance that was reasonably open of being acquitted, then the accused has not had what the law says that he or she must have, namely justice according to law, and there will have been a miscarriage of justice. There was no such failure in this case.
- Evidence of bad character (including evidence about the commission of uncharged offences) may be relevant, and therefore admissible, for many purposes. It may be led to rebut evidence of good character, to prove an association with a crime scene, association with a criminal venture, to prove motive, or, as in this case, to rebut an accused’s allegation that a prosecution witness had a motive to lie. There is usually a risk that the evidence will be misused by the jury by reasoning from a propensity to commit criminal acts to a conclusion that the accused is guilty of the crime charged. It is that potential for misuse that constitutes the “prejudice” that is spoken of in the authorities. It is this potential for misuse that must be weighed against the probative value of the evidence. The mere existence of that risk does not render the evidence inadmissible. Instead, a trial judge has to make a judgment whether a suitable direction can overcome the risk of prejudice sufficiently and that the interests of justice would be best served by admitting the evidence subject to giving an adequate direction. While there may be cases in which the risk of misuse of evidence is so great that it should not be admitted, it must not be forgotten that evidence about uncharged acts of the most serious and forensically injurious kind is properly admitted very frequently. Sutton v The Queen, Hoch v The Queen, Pfennig v The Queen, KRM v The Queen, HML v The Queen and Hughes v The Queen were all cases of this kind. In this case, the general reference in Jane’s evidence to “something of a sexual nature had happened between the defendant” and Nancy falls far below the risk of prejudice presented by the evidence in cases like those. If that was not so, then the evidence should not have been admitted in that case, the appellant would have appealed upon the ground of error of law under s 668E of the Criminal Code (Qld) and the onus would then have been on the prosecution to demonstrate the applicability of the proviso. To cloak the admissible evidence that is tactically disadvantageous in the disguise of counsel’s incompetence that amounts to a miscarriage does not work.
- As I have said, there is no question in this case that the substantive law, as well as the laws of evidence and procedure, were correctly applied and there has been no suggestion that the learned trial judge misdirected the jury. It is therefore impossible to see how the trial was unfair.
- The heart of the appellant’s case really appears to lie in the following submission in his written outline:
“It is easy enough in such a case, to invoke the assumption that, as a general rule, jurors follow the directions given by trial judges. It does not follow that the jury room is a place of “undeviating intellectual and logical rigour”, nor that a jury’s decision making is unaffected by matters of possible prejudice. And evidence of this nature carries with it a particular and powerful kind of prejudice.”
- When relevant evidence is admitted in a trial and a proper direction about the use of that evidence has been given to the jury, then an argument that assumes that a jury will disregard the direction is unsustainable. Courts rightly, and necessarily, act on the footing that juries follow instructions.
- The three cases cited in the footnotes to this paragraph to support the appellant’s contention do not support it. Gilbert v The Queen was a case concerned with the failure of a trial judge to direct the jury to consider a verdict of guilty of manslaughter as a possible alternative to a verdict of guilty of murder. In the context of that situation, there was a discussion about the possibility that a jury might, against the evidence and in order to show mercy, find an accused person guilty of the lesser offence. Hoch v The Queen concerned the tests for determining the admissibility of similar fact evidence. R v Cranston concerned the principles applicable on an application to sever an indictment pursuant to s 597A of the Criminal Code (Qld). The case is authority for the proposition that the discretion to sever should be exercised liberally in cases in which evidence that is not cross-admissible is highly prejudicial.
- The evidence was relevant and admissible and the direction that was given by the learned trial judge about the use of that evidence was unimpeachable. Defence counsel’s tactical decision was rational and conformed to his instructions. Even if that were not so, the result would be no different. There were no irregularities in the conduct of the trial and the appellant suffered no miscarriage of justice.
- For these reasons the appeal should be dismissed.
- HENRY J: I agree with the President.
- I add that various arguments were explored at the hearing, some at the Court’s prompting, about the correct legal framing of why the trial was incurably unfair and that a miscarriage of justice therefore resulted. A significant issue emerging at the hearing was whether any direction, even one as admirably correct as that given here, could adequately address the risk of misuse of the obviously prejudicial evidence that the appellant was also accused of sexual misconduct against the complainant’s sister.
- Separate trials are sometimes ordered because the law in principle recognises sex offences are peculiarly likely to arouse prejudice. On the other hand, as the cases cited by the President demonstrate, multiple complainant sex offences are sometimes permitted to be joined if the evidence of offending against one complainant is probative in respect of an offence relating to another. In such cases the probative value of the relevant evidence trumps its risk of prejudicial misuse and that risk is instead addressed by direction. The jury is taken to comply with such directions when given. This was not a joinder case but, similarly to a joinder case, the evidence of sexual complaint by another was relevant at the trial and the risk of its prejudicial misuse was addressed by direction. It has not been demonstrated why in this sex case the risk of prejudicial misuse of relevant evidence could never be adequately addressed by direction when it is plainly the policy of the law in other sex cases that it can be.
- DAVIS J: I agree with the reasons of Sofronoff P and Henry J and I join in the order that the appeal be dismissed.
Affidavit of Bianca Van Heerden (BVH).
R v Bevinetto  QCA 219 at -.
(2002) 212 CLR 124 at .
 QCA 96 at 6.
Palmer v The Queen (1998) 193 CLR 1;  HCA 2.
 QCA 376 at .
cf. R v Phair  1 Qd R 136.
(1955) 93 CLR 493 at 514.
KRM v The Queen (2001) 206 CLR 221.
BRS v The Queen (1997) 191 CLR 275.
R v O’Meally (No 2)  VLR 30.
Harriman v The Queen (1989) 167 CLR 590.
R v Griffin (No 1) (1868) 1 QSCR 176.
See per Lord Morris in R v Boardman  AC 421 at 439.
(1984) 152 CLR 528.
(1988) 165 CLR 292.
(1995) 182 CLR 461.
(2008) 235 CLR 334.
(2017) 263 CLR 338.
Gilbert v The Queen  HCA 15; 201 CLR 414 at  and .
Hoch v The Queen  HCA 50; 165 CLR 292; R v Cranston  1 Qd R 159.
supra at  and .
De Jesus v The Queen (1986) 61 ALJR 1; 22 A Crim R 375. The principle had emerged as obiter in Sutton v The Queen (1984) 152 CLR 528.
Gilbert v The Queen (2000) 201 CLR 414, 420  (Gleeson CJ and Gummow J), 425  (McHugh J, dissenting); HML v The Queen (2008) 235 CLR 334, 458  (Heydon J), 493  (Kiefel J).
- Published Case Name:
R v Brown
- Shortened Case Name:
R v Brown
 QCA 33
Sofronoff P, Henry J, Davis J
03 Mar 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC97/18 (No Citation)||26 Jul 2018||Date of Conviction (Horneman-Wren SC DCJ).|
|Appeal Determined (QCA)|| QCA 33||03 Mar 2020||Appeal against conviction dismissed: Sofronoff P and Henry and Davis JJ.|