- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Ernst  QCA 150
ERNST, Kenneth Ralph
CA No 264 of 2019
DC No 82 of 2019
Court of Appeal
Appeal against Conviction
District Court at Maroochydore – Date of Conviction: 5 September 2019 (Moynihan QC DCJ)
17 July 2020
15 July 2020
Sofronoff P and Mullins JA and Davis J
CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted on 11 of 15 counts of sexual offences against the same complainant – where the Crown case depended entirely upon the evidence of the complainant – where the defence case was that none of the charged acts happened – there the evidence of the complainant was not corroborated but it was supported to a degree by preliminary complaint evidence – where the complainant was under 16 years old for counts 1, 2, and 3 – where the appellant was 16 years of age or older for counts 4 through 15 – where the complainant admitted to having a consensual sexual relationship with the appellant when she was 17 – where the complainant admitted to having made false allegations of a sexual nature in the past – where a friend of the complainant has provided affidavit material on appeal where she deposes that the complainant had told her that she had “an affair” with the appellant – where the friend also gave evidence about the complainant’s propensity to lie – where the evidence of the friend went to the complainant’s credit and also to the question of consent – where the friend called prosecution authorities before the appellant’s trial in order to give the information to which she has now sworn – where she spoke to a police officer and related some of these matters to him, including that the complainant was having “an affair” with the appellant and that the complainant spoke of the relationship, and the appellant himself, in positive terms – where she deposes that she told police about the complainant’s proclivity to lie – where the police officer noted none of it and communicated nothing to prosecution authorities – where, as a result, none of this information was disclosed to the defence pursuant to the prosecution’s duty of disclosure – where there is evidence led on this appeal that the police officer’s attention was only upon facts that might assist the prosecution case – where the appellant submits that this breach has occasioned a miscarriage of justice – whether the prosecution failed to disclose information – whether the proviso is applicable – whether the failure to disclose the witness has occasioned a miscarriage of justice
Criminal Code (Qld), s 668E(1A)
Grey v The Queen (2001) 75 ALJR 1708;  HCA 65, cited
Mallard v The Queen (2005) 224 CLR 125;  HCA 68, cited
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533;  HCA 2, cited
R v HAU  QCA 165, cited
R v Richardson  1 QB 299, cited
Toohey v Metropolitan Police Commissioner  AC 595, cited
A Glynn QC, with M Longhurst, for the appellant
D Balic for the respondent
Sunshine Coast Legal Pty Ltd for the appellant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant was convicted on 11 of 15 counts of sexual offences against the same complainant. The Crown case depended entirely upon the evidence of the complainant. Her evidence was not corroborated but it was supported to a degree, as will be seen. The charges arose out of the following evidence given by the complainant.
The complainant was born in December 1976. When the complainant was either 13 or 14 years old, the appellant, who was known to the family and was older than her by 16 years, sat beside her as she played a computer game and moved his hand over the area of her vagina (count 1). In September 1991 the family, including the appellant, was on a camping holiday on Keppel Island. The appellant sat near a tent and exposed his genitals to the complainant (count 2). In June 1992 the family, including the appellant, was on holiday on Hinchinbrook Island. The appellant gave the complainant a massage during which she lay on her stomach while he sat astride her back. In that position he rubbed his erect penis against her bottom. He then moved his fingers inside her swimming costume and rubbed her nipples (count 3).
The remaining offences were alleged to have been committed after the complainant had turned 16. During another holiday on Keppel Island in 1993, the appellant came behind the complainant and put his hands under her jacket and touched her nipples (count 4). On another occasion during the same holiday, the appellant invited the complainant to explore a cave and, while in the cave, he again came behind her and touched her breasts (count 5). He then took her hand and placed it on his penis (count 6). On yet another occasion he sat beside her and moved his fingers inside her swimming costume, touching her vagina (count 7). He then lowered her swimming costume and touched her breasts (count 8). He took her costume off and performed oral sex on her (count 9). He told the complainant to lie on the sand and, while she lay there, he induced her to put his penis into her mouth (count 10). Later, when the complainant entered the cabin that she was occupying on the island, she found the appellant inside. He put her hand onto his penis (count 11). He told her to kiss or to lick his penis and she did so (count 12). On another occasion on Keppel Island the appellant invited the complainant to go night fishing with him. While sitting on the beach he put his hands inside her underwear and rubbed her vagina and clitoris (count 13). At a wake after the death of the complainant’s father by suicide, the appellant encountered the complainant in the family home and embraced her and, holding her, he kissed her on the mouth and neck and rubbed his hands over her (count 14). Finally, one night while the complainant was visiting her bathroom, the appellant entered and lifted her onto the sink and, having already applied a condom to his penis, attempted to penetrate her vagina. This attempt was unsuccessful because they were interrupted by the appellant’s wife (count 15).
Counts 14 and 15 were alleged to have been committed between March and June 1994 when the complainant was 17 years old.
In cross-examination the complainant admitted that she had falsely told people that her father had raped her when she was a child. She admitted also that, when she was living with a sexual partner, Ms F, she had falsely accused Ms F of raping her while she was asleep.
There was also the following:
“… In the early days of your relationship with [Ms F], did you say to her, [Ms F], that you were quite pleased with your sexual experiences with Mr Ernst? --- I might have indicated that there were times when I enjoyed what he was doing.”
And also the following:
“… So do you agree that you told Ms Ryan [a psychologist] that Mr Ernst was inappropriate to you when you were 15, but at 17 had consensual sex with him for the year? --- Yes.”
“Do you accept you have a history, which I’ve outlined to you and which you have largely accepted, of making false allegations of this nature? --- I accept that I have a mental health history after significant trauma and some of the statements that you’ve indicated that I said I did say.”
A work colleague of the complainant, Mr C, gave evidence of preliminary complaint. During a holiday in Vietnam in 2015, he and the complainant had the following exchange:
“We were discussing while having a few drinks after a day of activities in Vietnam, and we were talking about our first loves and losing virginities, and she – I said, “How – you know – what was your – who was your first love”, and she – she said she didn’t know, and she broke down in tears, and she told me that it was – that she’d been sexually abused by Ken from a very young age. She was groomed from a young age and it progressed over a number of years. So from before the age of 16 to – to all the way up to 19 – 18 – 19 years old.”
On a later occasion, the complainant related incidents to Mr C that correlated with count 7, incidents that might have correlated with counts 5 and 6, and other incidents that correlated with counts 14 and 15.
The complainant’s mother gave evidence that placed a time frame on the holidays on Keppel Island and Hinchinbrook Island and she also gave some evidence that was capable of being regarded as evidence of preliminary complaint in relation to counts 3, 5 and 14. A friend of the complainant, Ms B, gave some non-specific evidence of preliminary complaint in relation to counts 3, 14 and 15.
Ms F, gave evidence that the complainant had told her that she and the appellant had “started … with oral sex” when the complainant was 14 and “then it progressed to other types of sex” which included “vaginal and anal sex as well”. Ms F said:
“Yeah, so she specifically talked about places of opportunity. So she talked about Great Keppel Island quite a bit. Specifically, a beach that they used to go to to fish. And there was a cave as well. I believe it was Links Beach.
Okay. Anywhere else?---She did also talk about the bathroom of her brother-in-law’s home as well.
Did she talk about what happened in that bathroom?---Not really. That they just had sex in the bathroom while other people were asleep.”
Ms F said that she ignored these accounts “because of her lying to me in the past”.
Another friend of the complainant, Ms M, gave evidence of preliminary complaint in relation to counts 5 and 14.
A psychologist, Ms Ryan, who had treated the complainant in 2013 and in 2015, gave evidence about preliminary complaint in relation to count 3 and also said that the complainant had told her that she had been having consensual sex with the appellant from when she turned 17.
It will be seen that the history of the appellant’s sexual dealings with the complainant spanned two periods, namely the period covered by counts 1, 2 and 3, before she turned 16, when her consent to his sexual advances was immaterial to the offending charged, and the period relating to the remaining counts, after she had turned 16, when the sexual acts, if they occurred, would constitute offences only if the complainant had not given her consent. Counts 14 and 15 were alleged to have been committed after the complainant had turned 17.
The complainant made a pretextual phone call to the appellant during which she accused him of acting towards her in a way that was “wrong” but during which, with one exception, she did not explicitly accuse him of doing acts before she turned 16. Rather her complaints to him were general and were consistent with there having been a consensual sexual relationship although, in the circumstances of his marriage and her youth, an immoral one. The following is an example:
“COMPLAINANT: … It was just me? But what was it with me? I mean I was a [sic] awkward, ugly lookin’ kid and I had no boyfriends or anything. And you knew that, why didn’t you have a bloody, some sort of a bloody fling with an adult woman for fuck’s sake? Why me? I don’t understand Ken. I don’t understand--
ERNST: [complainant] how do I, how, how can we stop what’s happening?
COMPLAINANT: I need to know why. Why did it happen? What was that? [Your wife] was beautiful, I don’t understand what it was with you, I never understood why you did that to me. I don’t understand. And that’s why I thought, was I like, ah, like cursed or what the hell? What was it?
ERNST: Ah, I just want this all to stop [complainant].”
Later the complainant said the following:
“COMPLAINANT: It’s gotta’ be an acknowledgement that what you did was wrong. I’ve never heard it, it’s just like I’m like wrapped up and, and because I was like you know, and even that thing with the confession, it’s like yeah consent. How have you had consent? I never consented. I was so young and you were there. But you worked it all and had it all ready. And it was just wrong. I, I didn’t have any control in that situation. I didn’t even.”
The appellant gave evidence. He denied any sexual contact with the complainant. He admitted that he had massaged her on Hinchinbrook Island, something that the complainant had put to him during the phone call and that he did not then deny, but he said that there was no sexual element involved in that.
The appellant has appealed his convictions on two grounds. One of these concerns new evidence that has been obtained from a former acquaintance of the complainant.
Ms V was a student at the University of Southern Queensland in Toowoomba during 1995 at the same time as the complainant. Two of her affidavits were tendered on the hearing of this appeal. According to Ms V, the two became friends and the complainant told her that she was having “an affair” with the appellant. She described “various sexual exploits she engaged in” with the appellant. She made no complaints about any of his conduct but, rather, described her affair with him “in positive terms”. Ms V said:
“a. When [the complainant] would tell me about her relationship with MR. ERNST, she was talking like it was still happening in the present. I recall an incident where she was talking about having a miscarriage with MR. ERNST’S baby.
b. I recall forming an opinion that it sounded like the relationship with MR. ERNST had been going on for several years, the way she was talking about it did not seem like it was something new.
c. In relation to my use of the term ‘confronting’ – [the complainant] was very graphic all the time. She never spoke about her sexual encounters with MR. ERNST in a sinister way, it always was consensual. I would definitely remember if she ever said it was non-consensual, she was talking like she was obsessed with him.”
Ms V also gave evidence of the complainant’s propensity to lie. She gave various instances of this proclivity, which it is not necessary to list, and said:
“[The complainant] did admit, when I strongly confronted her later in the year that she had been telling lies, without being specific about what was true and what wasn’t, but I rattled through the whole list of lies, including the miscarriage and she didn’t correct me. I asked her why she did it. In response, [the complainant] admitted that she was a liar and said to me words to the effect of ‘I do it because I like to hurt people’.”
Mr Glynn QC, who appeared with Mr Longhurst of counsel for the appellant, rightly submitted that the complainant was the central witness in the case and that without her evidence there was no case. The complainant’s evidence was supported by the evidence of other witnesses. Her mother’s evidence placed the complainant and the appellant at the locations of some of the various alleged offences. The evidence of other witnesses supported her credit by way of evidence of preliminary complaint. However, the case depended entirely upon the jury’s acceptance of the complainant as a truthful witness.
The defence case was that none of the charged acts happened. This response to the Crown case faced an obstacle in the pretextual phone call, which was capable of being read as if the appellant was not disputing that he had had a sexual relationship with the complainant. Nevertheless, even if the jury rejected his denials as false, they would have been obliged to consider whether they were satisfied of two other things, both of which depended wholly upon an acceptance of the complainant as a witness of truth. First, the jury had to be satisfied that the acts charged as counts 1, 2 and 3 were done when they were alleged to have been done, before the complainant had turned 16. Second, they had to be satisfied that the other acts were done without the complainant’s having given her consent. The jury might well have rejected the appellant’s denials as the assertions of a man who was caught in an extra-marital affair and that he was maintaining a desperate false denial to avoid facing up to that situation rather than from a fear of being found guilty of criminal offences. In any event, as a matter of obedience to the learned judge’s directions on the law the jury would have had to consider whether, if they were satisfied that the appellant had done the acts charged in counts 4 to 15, they constituted offences.
The evidence of Ms V was most material to consent. Her evidence was capable of explaining counts 4 to 15 as consensual sexual acts between two lovers. It is significant that the jury acquitted the appellant on the two offences that were alleged to have been committed after the complainant had turned 17, consistently with the evidence of Ms Ryan referred to in paragraph  above.
Ms Balic, who appeared for the respondent, submitted that the evidence that might be given at a trial by Ms V went solely to the complainant’s credit. In one respect that is true. Any evidence that tends to cast doubt upon the truth of the evidence given by a witness is related to that witness’s credibility. However, in another respect, evidence that directly contradicts a fact in issue does more than that. It constitutes an alternative fact which can ground an actual finding and is, therefore, substantive evidence. It would have been open to the defence to call evidence that, during a relevant period in which it was alleged that the appellant committed offences involving non-consensual sexual acts, the appellant and the complainant were engaged in a consensual sexual relationship. This would constitute direct evidence led to contradict a fact that the prosecution must prove as part of its case. Further, part of the evidence of Ms V in that respect is capable of amounting to a prior inconsistent statement made by the complainant, namely, her statement that she was having an affair with the appellant. If the complainant denied making it, that statement could have been proved by the evidence of Ms V and would have been evidence of the truth of its contents.
The evidence from Ms V related to a potentially material period, namely 1995. Counts 14 and 15 took place in 1994 and counts 4 to 13 took place in 1993. If the jury accepted the evidence of Ms V, or if that evidence raised a doubt as to the giving of consent, then the jury might well have acquitted upon the basis that all of the charged acts committed after the complainant turned 16 had been consensual.
In another respect, the evidence of Ms V does go strictly to credit. It is evidence of the complainant’s propensity to tell lies about people to their discredit and is significant for two reasons.
First, the material contained in the evidence of Ms V furnishes powerful bases for cross-examination. This includes a series of alleged lies of a bizarre kind, including tales about purported sexual adventures, as well as the evidence about her self-acknowledged proclivity to tell damaging lies.
Second, the accumulation of lies that Ms V says the complainant told her suggests a substantial potential line of attack on her credit as a witness. It is established that a witness may be asked whether he or she has knowledge of an impugned witness’s general reputation for veracity and whether, from such knowledge, the witness would believe the impugned witness’s sworn testimony. A witness may also be called to impeach the credibility of another witness by expressing an opinion as to whether the latter is to be believed upon his or her oath. Although the impeaching witness cannot give evidence in chief to explain the facts that give rise to that opinion, they can be explored in cross-examination. Evidence can also be given that a witness is a notorious liar. Such evidence might involve medical evidence to show that a witness suffers from some psychological condition that affects her reliability, something that emerges from the complaint’s evidence referred to in paragraph  above.
Mr Glynn QC submitted that the evidence of Ms V was fresh evidence. Although it was suggested by Ms Balic that the evidence might have been obtained by reasonable endeavours, that submission cannot be sustained. It is true that, as she deposes, Ms V had telephoned the appellant and his wife in 1995 to warn them about some of the things that the complainant was saying. However, the appellant told her that he was not interested in hearing her story because these were private family matters. It would be unrealistic to suppose that that phone call, which was significant to Ms V for obvious reasons, would have been so significant to the appellant that, although it was made more than 20 years ago, he would have appreciated in 2017 that Ms V might be a witness who could now help his case.
Nor can it be accepted that this evidence is of only marginal significance. Although there was some useful evidence available to the defence concerning the complainant’s willingness to make false allegations of sexual offences committed against her, this fresh new evidence is much more substantial because of the alleged persistence of the complainant’s tendency to tell fantastic stories. This is evidence which, if accepted by a jury, might well have led it to conclude that it would be unsafe to convict on the complainant’s evidence despite the evidence of preliminary complaint.
Of more importance than the fact that this is fresh evidence strictly so-called, is the fact that Ms V called prosecution authorities before the appellant’s trial in order to give the information to which she has now sworn. She spoke to a police officer and related some of these matters to him. She told him that the complainant referred to her relationship with the appellant as “an affair” and that she spoke of that relationship, and of the appellant himself, in positive terms. She spoke of it as a relationship that has persisted for a significant period. She told him about the complainant’s reputation for lying and she gave him specific instances. All of this information was highly material for the reasons that have been explained. The police officer noted none of it and communicated nothing to prosecution authorities. As a result, none of this information was disclosed to the defence pursuant to the prosecution’s duty of disclosure.
Mr Glynn QC submits that this breach has occasioned a miscarriage of justice. That submission must be accepted. Courts, including the High Court, have repeatedly emphasised that a prosecuting authority’s duty of disclosure of relevant information and evidence is not just a protection against miscarriages of justice. Its fulfilment is a presupposition of a fair trial. However, the officers of the Director of Public Prosecutions can only fulfil their duty to the extent that they are knowingly placed in possession of such material. No criticism can possibly be made about the conduct of this case by the officers of the Director of Public Prosecutions. Like the appellant’s own legal representatives, they too did not know about this evidence.
The administration of criminal justice depends heavily upon the work of police. In this sphere, the investigative work of police culminates in the evidence led at a criminal trial because it is the function of police, not the Director of Public Prosecutions, to investigate an alleged offence and to collect and assemble relevant evidence. Judges and juries depend utterly upon the integrity of that process. To a great degree, that integrity depends upon the assumption that police investigators have been objective and have attempted to uncover all relevant evidence that can reasonably be assembled, whether it is inculpatory or exculpatory. Indeed, sometimes a prosecution case can gain unassailable strength in the eyes of a jury if it is evident that the evidence that has been put forward has been the result of an utterly objective investigation and one in which, having regard to the truth of the Crown case, the investigators did not fear to find and put forward evidence that might exculpate an accused person. That is why paragraph 2.5.1 of the Police Operations Procedures Manual provides:
“When conducting investigations, officers are to remain objective and impartial and consider their initial appreciation of an occurrence, based on the preliminary information provided by complainants, witnesses or informants, may differ to what has occurred.”
In this case such objectivity was missing insofar as the information offered to the police officer by Ms V was concerned. According to his evidence led on this appeal, the police officer’s attention was only upon facts that might assist the prosecution case. He was only interested to find out if Ms V might be able to give evidence to strengthen the credit of the complainant. He was uninterested in learning that there may be issues about the reliability of the complainant and so he ignored (or did not hear) what Ms V had to say. He made some desultory, sparse and useless notes of his conversation with her but failed to record any of the highly important things that Ms V was earnestly attempting to convey to him.
As a result of this gross investigative failure there has to be a retrial. For the reasons given, this evidence was capable of influencing the outcome of the trial. Its non-disclosure constituted a serious breach of the presuppositions of a fair trial so that the proviso in s 668E(1A) of the Criminal Code (Qld) cannot apply.
The cost of the first trial has been wasted. The effort made by the witnesses, jurors and others at that trial has also been wasted. The complainant will have to undergo the ordeal of giving evidence again. All of this might have been avoided.
The appellant argued another ground of appeal based upon the conduct of a juror at the first trial, but having regard to the conclusions already reached, it is not necessary to consider this other ground of appeal.
The appeal should be allowed, the verdicts of guilty should be set aside and there should be a retrial of the counts on which the appellant was found guilty.
 R v Richardson  1 QB 299; (1968) 52 Cr App R 317 at 323.
 Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 545 per Latham CJ.
 Toohey v Metropolitan Police Commissioner  AC 595 at 608.
 Mallard v The Queen (2005) 224 CLR 125 at  and Grey v The Queen (2001) 75 ALJR 1708; R v HAU  QCA 165 at  per Keane JA.
 Issue 76 effective 5 June 2020.
- Published Case Name:
R v Ernst
- Shortened Case Name:
R v Ernst
 QCA 150
Sofronoff P, Mullins JA, Davis J
17 Jul 2020
No Litigation History