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SUPREME COURT OF QUEENSLAND
R v Hyde  QCA 196
CA No 293 of 2018
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 5 November 2018 (Devereaux SC DCJ)
11 September 2020
15 April 2020
Sofronoff P and McMurdo and Mullins JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – ADJOURNMENT – GENERALLY – where the appellant was convicted of 10 counts of sexual offending against two children – where, shortly before the trial, the prosecution disclosed that the complainants’ father had been recently charged with using the internet to attempt to procure a child under 16 years to engage in a sexual act – where the appellant applied for an adjournment of the trial, which was refused by the trial judge – whether a miscarriage of justice thereby resulted
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant submits that the possibility that the complainants’ father was the offender was not properly put to the jury – whether a miscarriage of justice thereby resulted
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant submits that although the trial judge directed the jury according to Longman v The Queen and Robinson v The Queen to an extent, there were crucial aspects of the required directions which were missing – whether it was necessary for the judge to make specific comments about certain aspects of the evidence – whether the directions given were deficient
Crampton v The Queen (2000) 206 CLR 161;  HCA 60, cited
E P Mac Giolla Ri, with R C Taylor, for the appellant
Richard Gray & Associates for the appellant
- SOFRONOFF P: I agree with McMurdo JA.
- McMURDO JA: The appellant was tried by a jury in the District Court on 11 charges of sexual offending against two children. The complainants were sisters and I shall refer to them as A and C. A was born in July 1992. C was born in March 1991. The offences were alleged to have been committed at various times between the beginning of 2000 and January 2004. The appellant was alleged to have maintained an unlawful sexual relationship with each child in the course of which she was raped and, in the case of A, sodomised.
- The judge directed the jury that they should find the appellant not guilty on one charge that he raped C. The jury found him guilty on the other counts. He was sentenced to terms of imprisonment ranging from seven to 11 years, all of which were to be served concurrently. The judge declared that 440 days had been spent in pre-sentence custody, the length of which was explained by the fact that he had been previously tried and convicted, the convictions in that case being quashed on appeal for a misdirection.
- The appellant appeals against his convictions on three grounds. The first is that the judge wrongly refused him an adjournment of the trial, on account of the provision of information and material by the prosecution very shortly before its commencement. In essence, the information was that the complainants’ father, whom I will call D, had been recently charged with using the internet to attempt to procure a child under 16 years to engage in a sexual act. It is said that the appellant was denied an opportunity to investigate that matter, and more generally, D’s history, to the end of arguing to a jury that any offending against either of these complainants was actually that of D and not the appellant. It is said that a miscarriage of justice thereby resulted.
- The second ground is that there was a miscarriage of justice because the appellant’s trial counsel did not conduct his case in a way which properly put before the jury the possibility that it was D who had done any of these things to the complainants.
- For the reasons that follow, none of the grounds should be accepted, and the appeal should be dismissed.
- The appellant’s wife was a friend of the complainants’ mother. Their families socialised together, and the complainants often went to the appellant’s house, where his wife would look after them after school while their mother was at work.
- A and C each described a course of frequent and persistent sexual offending by the appellant against her. There was one occasion on which, the complainants said, they were together when he abused them. C described going into her bedroom and finding her sister, A, already in the room with the appellant. The appellant directed them to “do stuff”, and told C to “finger your sister”. She said she had to comply, by putting her fingers in her sister’s vagina. In the same incident, she was made to kiss her sister. On the other occasions, each of them, in the absence of the other, was subjected to abuse involving sexual touching, kissing in an indecent way, oral sex and the penile and digital penetration of the vagina.
- Most of the offending was described as occurring at the appellant’s house. A relatively small number of these incidents occurred at their own house. One incident, involving the complainant C, occurred in the appellant’s car, and another incident occurred at a workshop owned by the appellant’s brother. There was also an (uncharged) incident where A was abused by the appellant, when the two families were on a camping trip in New South Wales.
- The offending against each girl ended at about the same time, which was when the two families stopped associating for other reasons. A said that she was then in grade six, going into grade seven, and as I have said, she was a year younger than her sister.
- In November 2014, C told her husband that the appellant had sexually assaulted her when she was younger. She described in some detail what had happened to her, including the occasion in which he had offended against the two girls at the same time. Soon afterwards, C told a long-standing friend, whom I will call F, of the offending. C also told another of her sisters, B, about what had happened. This led to a family meeting at B’s house, attended by the complainants, their mother, whom I will call K, and their brother. After this meeting, the three sisters and their mother went to the mother’s house to tell their father about the offending. In that way, their father became a witness of their complaints.
- On the evening on which those meetings occurred, although A was present, she said nothing about offending against her. However, a few days later, A contacted C and the two women met. A then said to C that she did remember the appellant committing offences against her. In particular, she recalled the incident where the two girls were abused at the same time.
- In their evidence, the complainants were sure that it was the appellant who had committed the offences against them. A described the appellant’s distinctive appearance: he had something like a “lazy eye”, he wore an eye patch, and he had his hair in a “rat’s tail” with a bandana which he always wore. C also described the bandana, the eye patch and other distinctive features of his appearance.
- In the cross-examination of A, the appellant’s trial counsel raised a possibility that it was her father who had sexually abused her. This part of the cross-examination proceeded as follows:
“Right. And you said that you were close with your father. Correct?---Yeah.
But there was a time where you stopped being close to him. Is that correct?---Yes.
That was while you were young?---Yes.
And you actually started pushing him away from you. Correct?---Yes.
In fact, you got to the point where you were:
…unable to be close to my father, show or receive affection from him or even look him in the eye due to my overwhelming fear and anxiety of being in close proximity of a male.
And do you know when that happened, when you started feeling like that?---I don’t know.
You were quite young?---Yeah.
Maybe around about the same time that you say you were being abused by Mr Hyde?---Yeah.
Yes. Your father never exposed you to any pornography in the house?---No.
And he never committed any acts of sexual impropriety towards you?---No way.
No one in your household committed acts of sexual impropriety towards you?---No.
So all the abuse that you suffered when you were young came from Mr Hyde?---Yeah.
You can’t be mistaken about that?---No.
And you’re now blaming him for something that someone else did?---No.”
- It was also suggested to A that she had made up her evidence about the appellant “just to show some support to your sister”, which A rejected.
- At the end of the cross-examination of A, there was this evidence:
“…Can I ask you this – did you start remembering any of the things that Allan had done to you from dreams – remembering from dreams?---Yeah.
Right. So things came back to you in dreams, did they?---Yeah, like – yeah.
Right. There’s not a chance that you’ve kind of – had some dreams and then adopted them as - - -?---No.
- - - real things? And just so I understand this correctly. From the time that the offending against you stopped – there was no more sexual impropriety or touching, right – you didn’t think of it again until 2014 when [C] mentioned it, correct?---Yep.
It wasn’t something that you were trying to not think about. You know, you’re trying to put out of your mind and forget?---Yep.
No, it wasn’t like that, was it?---Like I was trying to forget it.
Yes. You just had forgotten it. I’ll rephrase that. It’s not a memory that you carried around from when you were graduating grade 7 through to 2014. It’s not a memory you carried around thinking about, is it?---Probably.
It is. And it had never dawned on you to speak to [C] about it?---I’m not sure.”
- In re-examination, A said that she did have a recollection of the appellant doing these things to her, and that she had always had that memory.
- The possibility that the father had sexually abused C was raised in the cross-examination of her, although it was not pursued. The relevant evidence was in this passage:
“Did you – did you have access to any pornography in your own home?---Yes. Yep.
All right?---Well, I didn’t have access to it, but there was porn in my own home. My dad also looked – read a lot of pornography.
All right. And was there porn on computers at your home?---I don’t know. I wasn’t in my parents’ bedroom.
All right. But your dad, is he good with computers, is he?---Yeah, he’s a computer wizard.
So Dad’s a computer wizard?---I hadn’t – I had nothing to do with my dad.
So it’s not the case that your dad exposed you to pornography?---No, absolutely not.
Or that he otherwise abused you in any way sexually?---Absolutely not.
Absolutely not?---Absolutely not. My dad didn’t look after us. I can’t say he was a good dad, but he never hurt us.
But he – you pushed him away, didn’t you?---Yeah.
So it got to the point where you got really angry – this is why you say you were being offended against by Mr Hyde – you got really angry with your whole family, and you pushed them away from you; correct? You couldn’t even kiss your dad hello or goodbye; correct? Because you were scared that he would do things to you like Allan did; correct?---I was scared of males. I couldn’t even have a friend at school that was a boy.
All right. Listen to my question; it was the case that you couldn’t even kiss your dad hello or goodbye, because you were scared that he would do things to you like Allan did?---Yeah.”
- In the cross-examination of the complainants’ father, counsel asked whether there was a time when C started pushing him away and did not wish to spend time with him. D answered that there were a few occasions of that kind, when he and the complainants’ mother were having problems with C because she was “acting strangely and doing strange things”. Counsel then turned his focus to D’s behaviour.
- He asked D whether he had pornography in his house, which D denied. He asked D whether he had separated from his wife in the previous year, and whether he had learnt that his wife had had an affair with the appellant. D confirmed each of those facts.
- D was then asked about his being charged with attempting to procure a child to engage in a sexual act, after he had been apprehended at a railway station where he had arranged to meet with someone whom he believed was the child’s mother, but who in truth was a policewoman. Details of the charge were sought from, and reluctantly provided by, D, who also said that he intended to plead guilty to the charge in the District Court. D had responded to an advertisement, purportedly placed by a woman who said that she and her teenage daughter were looking for “fun and experimentation”. D admitted that he had responded by a text message:
“Let’s get dirty. I’ve always wanted to have mum and daughter as I watch this porn, my fave. I’d love to do this. Let’s make it happen.”
- D admitted sending another message saying:
“I love family/taboo porn and have fantasy with being a gynaecologist inspecting.”
- At one point, this cross-examination was interrupted whilst the trial judge informed the witness that he was not bound to answer a question which might tend to incriminate him. Nevertheless, the cross-examination then continued, with counsel putting to D a further message he had sent to the person whom he believed had placed the advertisement, in which he had said that “in relation to having underage sex”, that he was “kosher”. D did not dispute sending some 50 emails to this person, and also said that it was possible that he had sent her a naked photograph of himself.
- The appellant’s counsel asked D about his interview by police, after being apprehended at the railway station. At that point, the jury was asked to retire, after which the judge told counsel that he had become troubled by the cross-examination, and was wondering about its relevance. Counsel responded that he was about to ask the witness whether or not he had sent a message saying that he could teach a child and that he would give her “an education”, because, counsel suggested, that was similar to some conversations which C had testified that she had with the appellant. The jury returned and the cross-examination continued.
- Counsel then put further messages which D had sent to the police officer, telling her that her daughter would get “an edgamacation” from him. The cross-examination then concluded with this exchange:
“[D], did you ever abuse – sexually abuse your daughters - - -?---No.
?--- - - - [C] or [A]?---
And you’re just shaking your head, and you’re saying no?---Hey?
You’re shaking your head. Are you saying no, you didn’t?---No. I don’t know. No.
Can I ask you lastly then, did you expose either of your daughters, [A] or [C], to pornography?---No.”
- The complainants’ mother gave evidence of the complaints by C, to which I have referred. She also gave evidence, in examination in chief, of her affair with the appellant over the period of the alleged offending. In cross-examination, she said that there had been “a little” pornography in her home.
- Preliminary complaint evidence was given by C’s friend F, to whom I referred earlier. In cross-examination, F said that C had told her that her recollection had “come back to her in flashbacks”. This had not been said by C, in her testimony, and nor had it been put to her.
- It is unnecessary to refer to the other evidence in the prosecution case. No evidence was called or given by the appellant.
The Defence argument to the jury
- Defence counsel argued that the prosecution case, on each count, was implausible. The evidence of each complainant was unsupported by any other evidence, he said. He emphasised suggested inconsistencies between their testimony and their previous statements.
- Counsel focussed upon evidence from A, that for some time she had not remembered these things and then over a period of time, she had begun to do so. He argued that there was a real risk that she had reconstructed her evidence. He reminded the jury of her evidence that some of her recollection had come from dreams. And he argued that A was pressured by C to make up a false account.
- Counsel referred to A’s evidence that, at some stage, she had pushed her father away. Counsel suggested to the jury that A had paused when he had asked her whether a family member had abused her. Counsel said this to the jury:
“If she hadn’t have been abused by someone else, why didn’t she just say, ‘No’ like you would expect? She paused and then she said ‘No’. Now, I can’t point to any particular person who actually did something. I can identify perhaps someone you might suspect. But bear in mind there was that answer, and you look at the way in which a person gives an answer and use that to assess the truth or accuracy of what they’re saying. I then went on to ask her whether she’d been mistaken about that and she said, ‘No’. So in the end, if you still think she must have been abused by someone, it doesn’t follow that it must’ve been Mr Hyde. As I said, I can’t prove she was abused by someone else. I can’t prove that to you. But the things that I’ve mentioned above should give you a real reason to doubt what she says.”
- As to C, counsel reminded the jury of C’s evidence that the context in which she told her husband about the appellant’s offending was during an argument with her husband about her love for another man, who was, in fact, the appellant’s son. Counsel suggested to the jury that what she then told her husband about the appellant’s offending was something that, in some way, she thought might justify her feelings for the son.
- Counsel asked the jury to “think of the relationship that [C] had with her father.” Referring to the father, counsel said “[w]e know that … these girls were in a household where there is a man who has an unhealthy interest in young girls and had the opportunity to offend against these girls…”. Counsel said that in the end, the jury might conclude that C must have been abused by someone, but it did not follow that it must have been by the appellant.
- Counsel chose to complete his address by reminding them of the evidence of the complainants’ father. He read to the jury the evidence of text messages which the father had sent to the person who was later revealed to be a police officer. Having done that, counsel then said this to the jury:
“Things might be said to you or have been said to you about flatly denying something. The girls flatly denied they were abused by someone else. I’m not sure I actually suggested – said to [C], “Were you abused by your father?” I might’ve actually said to her, “Were you abused by anyone else?” I then didn’t go any further because she said she wasn’t. But you never had the opportunity to consider that proposition put to her and what she – how she might’ve responded. I apologise. It might lessen the effect of what I’m saying to you now but in any event, I’d ask you to accept that, you know, she was asked, given an opportunity. She said, “No.” So – and that was flatly to the proposition that she’d been abused by someone else, and so did [A]. I think I said to her, specifically, “Did your father sexually abuse you?” and she said, “No.” And I told you about the pause. I read that piece of evidence to you before.”
The first ground of appeal
- It was on the Friday before the trial was due to commence that the Crown disclosed that D had been charged. On the scheduled date for commencement of the trial, the appellant applied for an adjournment. It was submitted that the appellant should have the opportunity of further investigating D, given that the disclosed material revealed not only that D had committed the offence with which he had been charged, but also that in his exchanges with the woman he was to meet, he had made statements suggesting that he had previously engaged in misconduct with a child. Further, it was argued, the material showed that in his record of interview, when referring to his recent admission to a hospital on mental health grounds, D had told police that there were other things about him which he should not tell them. It was submitted that the appellant’s lawyers needed to obtain documents, by the issue of subpoenas, from the Queensland Police Service and Queensland Health to investigate the possibility that he had committed the subject offending against his daughters. The case which the appellant wanted to explore was that it was possible that the complainants, in truth, were abused by D, and that they had mistakenly implicated the appellant.
- After referring to those arguments, the trial judge said that he was not satisfied that the interests of justice required an adjournment of the trial. His Honour said:
“[T]here is a body of material which can be used if this approach to the case is to be taken. I’m not satisfied that, by denying further investigations into things that might or might not produce something to the end of prosecuting such a defence, I’m not satisfied that that would be unjust. So I’m against the adjournment.
Having said that … you could ask [the complainants’ mother] about that, because although I understand completely you wouldn’t ask her in open court under cross-examination. It might be that you want to investigate certain things on a voir dire before particular witnesses are called.”
His Honour added that he expected that the police file, called “QPRIME”, could be quickly obtained with the cooperation of police.
- The QPRIME record was obtained by defence counsel before the end of the trial.
- I have referred to the cross-examination which was based upon this recently disclosed material. By ground 2 of this appeal, it is contended that full use was not made of it, in the cross-examination of D and the complainants’ mother. The fact that D had said to police that “there are a few other things I … shouldn’t tell you” was not put to D. What are said to be similarities between the specific conduct the subject of D’s offence, and some of the offending against the complainants was not explored with D. The possibility that in his exchanges with the police officer, D had arguably admitted to previously having had sex with a child was not put to D. And in the cross-examination of the complainants’ mother, she was not asked why she had “put him” into a hospital, or about any information which might link him to other sexual offending. Those matters, and other respects in which the appellant is critical of his trial counsel, are discussed below. For the purposes of the present ground of appeal, they have some relevance, in that they were part of the material which the cross-examiner already had in his possession, without the benefit of an adjournment of the trial.
- The trial commenced on 30 October 2018 and concluded four days later. The appellant was then sentenced, and nine days later, commenced this appeal. The appeal was originally listed for hearing in February 2020, but was adjourned when the appellant was advised, in December 2019, that subpoenas should be issued to obtain the material which would have been sought, had the trial been adjourned. Subpoenas were then issued to Queensland Police Service and Queensland Health.
- What was produced by the Queensland Police Service disclosed the fact of another complaint, by a woman living in the United States, that in 1981 or 1982, when she was five years old, she was sexually assaulted by D, who at that time was 15 or 16 years of age. The allegation involved cunnilingus and, possibly, digital penetration. The complainant said that this act had been witnessed by her grandmother coming into the room as it was occurring. The grandmother was still alive but suffered from dementia. This complainant had told police that other family members quickly became aware of the incident and D was then required to leave this house immediately. It appears from the police file, which was understandably redacted in parts, that there was some family relationship between this complainant and D. She had also suggested to police that there may have been other family members who had suffered similar offending by D. It was recorded that the complainant did not wish to initiate proceedings at that time.
- The police material also revealed that D had been the victim of a number of armed robberies, when he worked at service stations in 1996 and 1998. This information is said to be relevant now to the question of D’s mental health.
- The material produced by Queensland Health showed that D’s then wife (the complainants’ mother) applied for him to be involuntarily treated in June 2017. It showed that he had become particularly unwell following the appellant’s first trial for these offences in 2016. His wife had reported that he had not coped well with the stress of that trial. This material also recorded a mental health lapse in 1999, in the year after he was the victim of the second of the armed robberies.
- The Queensland Health files contained a record of D saying that there had been a bad incident which had happened in his family which he did not wish to discuss further, saying “I’ve put it in a dark cupboard. I’ll deal with it later.” It appears that those treating him believed that this may have related to the offences against his daughters.
- The appellant’s argument, on this first ground of appeal, is that the refusal of an adjournment of the trial deprived him of a chance to obtain further evidence from which a jury might have been persuaded to doubt that it was the appellant who committed any sexual offences against D’s daughters.
- It is convenient to discuss first the material obtained from Queensland Health. What seems to be suggested is that if the jury had learnt of D’s mental health history, perhaps with the benefit of further information which D might have provided when cross-examined on the subject, the jury might have been more inclined to accept a possibility that it was D who had abused his daughters. In my opinion, this material is unlikely to have advanced the appellant’s defence. The evidence provided no basis for an argument that such offending was more likely to come from someone with a history of treatment for a mental illness, or an argument that his mental health problems could be attributed to a sense of guilt about his offending against his children. Had this material been available at this trial, it is not unlikely that counsel would have made no use of it.
- The material supplied by the police, earlier this year in response to the subpoena, would have provided a more promising line of cross-examination, had it been available at the appellant’s trial. However, its use would have had several limitations.
- Firstly, it is by no means clear that, as the appellant argues, s 93 of the Evidence Act 1977 (Qld) would have facilitated the tendering of the police records of this complainant as a document forming part of a “business” record.
- Secondly, it is to be expected that D would have denied the suggestion that he had committed that offence in the early 1980s, or at least, that he would have exercised his privilege to refuse to answer questions about it. And had the latter occurred, the trial judge would have directed the jury not to have any regard to it. In contrast, the fact that D had committed the offence with which he was charged was demonstrated.
- Thirdly, the jury may have thought that this conduct by D, if it occurred, was not a strong indication of his likely behaviour, some 20 years later when he was an adult, and a parent, rather than a sexually immature teenager.
- Fourthly, this evidence is unlikely to have added to the impression of D’s character which the jury would have had from the conduct which clearly did occur involving the undercover policewoman. It was inevitable that the jury would infer from the evidence of that undisputed conduct that D had a sexual interest in teenage girls, and in conduct of a kind which was not much different from that with which the appellant was charged. The addition of an unproved complaint of something done by D, nearly 40 years earlier, would not have significantly added to whatever force was in the argument that it was D who had abused A and C.
- In any case, the argument that it was D, and not the appellant, who committed these offences was unlikely to be persuasive. The appellant was a person well known to the complainants. He had a distinctive appearance and, from the evidence of D’s wife, had quite a different personality from D. Much of the alleged offending occurred, on the complainants’ recollection, at the appellant’s house. Some offending occurred in his car and, on one occasion, at his brother’s workplace. C gave no evidence of offending against her which took place at her own house. If these events occurred, it was quite unlikely that the two complainants were mistaken in their recollection of who had been the offender. It must also be kept in mind that these were offences, as recalled by each complainant, which occurred frequently and over several years. It is said that C’s evidence came back to her in “flashbacks”, making it likely that she could have been mistaken in her recollection as to who was the man who had abused her. Nevertheless, if the jury was persuaded to find that this abuse did occur, notwithstanding a recollection by “flashbacks”, the jury would have found the complainants to be sufficiently reliable in their recollection of the offender.
- For these reasons, the trial judge’s refusal to adjourn the trial, it can now be seen, occasioned no prejudice to the appellant’s defence. It did not diminish whatever prospect there was that the jury might acquit the appellant because of a doubt about whether, if the offences were committed, he was the offender.
The second ground of appeal
- It is argued that there was a miscarriage of justice, because the possibility that D was the offender was not properly put to the jury.
- It is argued that this was effectively the only case which could have been put to the jury, absent an argument that the complainants had concocted their account jointly. However that is not correct. Defence counsel put to C that she had made up her account, originally in the predicament of an argument with her husband. And he put to A that she had fabricated her account, in order to support her sister. The principal case which was argued to the jury, at some length, was that these events did not happen at all. That case was fairly arguable. Counsel raised the alternative possibility that these things had happened and that D was the perpetrator. Understandably, that was not at the forefront of his address, for reasons which ought to appear from what I have said about ground 1.
- I go then to the particular criticisms which are made of the conduct of the case by defence counsel. The first of them is that it was not put to C that she had told her friend, who gave evidence of a preliminary complaint, that her thoughts had come back to her in flashbacks. This was said by the friend in her testimony, but that evidence was not specifically mentioned in counsel’s address to the jury. It is suggested that counsel realised that he could not do so because the point had not been put to C. Counsel may not have been confident in putting this to C, and this could be explained as a rational forensic choice.
- Criticism is made of counsel not having put to D that, in the recently disclosed material, he had admitted to having had sex with a child, and for not attempting to put that into evidence by any other means. However in the cross-examination of D, it was revealed that D had claimed to the policewoman that he was experienced in sex with underage girls.
- Criticism is made of counsel for not putting to D the statement which he had made to police that “there are a few other things … I shouldn’t tell you”. However that was hardly an unambiguous reference to what had been done to his daughters.
- It is argued that the similarities between the specific conduct D had anticipated in his exchanges with the police officer, and the offending against the complainants, were not explored either with D or at all. However to the extent that there were similarities, they would have been clear to the jury. And the argument concedes that the relevant aspects of D’s offence, namely his liking for “family/taboo/daughter related pornography” and his desire to teach the “daughter” of the woman with whom he was corresponding, were put before the jury.
- Criticism is made of defence counsel for not asking the complainants’ mother why she had “put him” into hospital for mental health care, and whether she was aware of any information linking D to other sexual offending against children. Neither inquiry, however, would have been likely to yield anything useful to the appellant’s defence, and it may well have yielded an answer which was unfavourable to it.
- On the basis of these specific criticisms of the appellant’s trial counsel, it is contended that the case that it was the complainants’ father who had abused them was not put before the jury “in any meaningful way”. That argument cannot be accepted. As should appear from the cross-examination of D, which I have set out, and from his address to the jury, counsel clearly raised this hypothesis for the jury’s consideration. The jury was provided with evidence from which it would have considered that the complainants’ father had a propensity for sexually abusing underage girls. Clearly, there would have been opportunities for the father to abuse his daughters. The essential problem in this argument to the jury was that the complainants were unequivocal in their recollections that it was the appellant who was the offender. If the jury was sufficiently impressed, by the complainants’ testimony, to be left in no doubt that these things happened to A and C, there was little prospect they would be left in doubt about the complainants’ evidence that it was the appellant who had abused them.
- After a trial results in a conviction, there can be an understandable tendency to search for ways in which the defence case might have been conducted differently. As Gleeson CJ said in Crampton v The Queen:
“Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.”
- The reason why appellate courts are, as Gleeson CJ said in R v Birks, “extremely cautious” in intervening on this ground, is that “[d]ecisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.” In a case such as this, it is impossible for the Court to put itself in the position of trial counsel, in his exchanges with witnesses, his impression of the jury’s reaction to their evidence and his assessment of the reaction of the jury to his ultimate arguments.
- In my conclusion, there was no miscarriage of justice from the way in which this case was conducted.
- It is argued that although the trial judge directed the jury according to Longman and Robinson to an extent, there were crucial aspects of the required directions which were missing.
- The relevant directions were given as follows:
“Now, members of the jury, there is one other important matter that I must give you directions about and then I will just talk about the mechanics of giving the verdicts. The complainants’, that is, the both complainants’, long delay in reporting the incidents they say happened between 2000 and 2003 has an important consequence. Their evidence cannot be adequately tested or met after the passage of so many years, the defendant losing, by reason of that delay, means of testing and meeting the allegations that might otherwise have been available. So the defendant might have been denied the chance to assemble, soon after the incidents were said to have occurred, evidence about what he, and potentially other people, were doing, when it is said the things happened.
If the complaints were made earlier, it might have been possible to explore the details, the circumstances, and to perhaps gather, with a view to presenting at trial, evidence throwing doubt on the complainants’ story or confirming his denial. One example was given of the unavailability of medical evidence. For that reason, and for others, members of the jury, you will need to scrutinise the evidence of each complainant with great care before you could arrive at a conclusion of guilt of a charge concerning her. That is because of the delay between the time of each alleged incident and the time the defendant was told about the complaint, and the lack of opportunity to prove or disprove the allegation, as I said, by, for example, a timely medical examination; the age of each complainant at the time of the alleged incidents; the difference between accounts. If you are satisfied there are differences [in the accounts] that each complainant has given, and you may there, of course, take into account the evidence from other witnesses of things that were told. And, particularly with respect to [A], the manner in which her complaints emerged, as I have referred to. These are all matters for you to consider. These matters highlight the fact that the case against the accused rests on your accepting, beyond reasonable doubt, each complainant with respect to the charges concerning her, as accurate and reliable. You may only convict of a charge if, after scrutinising the particular complainant’s evidence with great care, considering the circumstances relevant to its evaluation that I have just gone through, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.”
- In R v GW, the High Court said:
“The requirement of the common law explained in Bromley, Crofts and Longman is to warn the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury’s attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it.”
- In Robinson, it was held that on the evidence in that case, there were various circumstances which, taken together with the absence of corroboration, required a warning to the jury of the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. Such a warning was given in this case, but it is said that not all of the circumstances which gave rise to the need for that warning were identified by the trial judge.
- Where a Robinson direction is required, it need not repeat every point made by defence counsel about a weakness in the prosecution case. What must be identified for the jury’s benefit are the factors that make the case in question one which requires that particular scrutiny in the assessment of the complainants’ account.
- It is said that the judge should have made specific comments about the difficulties witnesses had in recalling matters, due to the passage of time. This is said to have been important where the prosecutor had addressed the jury by an argument that the passage of time was an explanation for some inconsistencies in the complainants’ accounts. In my view, it was unnecessary for the judge to identify those inconsistencies, in the course of giving the warning or warnings in question. Any such inconsistencies had been canvassed in the arguments of counsel, and the jury did not need the judge’s repetition of them to understand why the warning was being given.
- It is said that the Longman direction was inadequate, because it did not draw the jury’s attention to the fact that certain business records, relating to the appellant’s employment at times during the period of the offending, were unavailable. Those records would have been relevant to a part of the defence case which sought to demonstrate that the appellant was working in another state at some relevant times. However it was unnecessary for the judge to specifically mention this matter, when giving this direction. It was an example of the potential for prejudice, from the delay between the relevant period and the making of the complaints. However, it was unnecessary for the jury to be reminded of that example, in order for them to understand the difficulty in answering the prosecution case after such a long delay.
- It is argued that the judge should have reminded the jury, in giving the Robinson warning, of a danger that A’s memory was a reconstruction from flashbacks. In my opinion, this was not such a significant feature of A’s evidence that it required to be mentioned in the course of this direction. A little earlier in the summing up, the jury had been reminded of defence counsel’s submissions about that feature of A’s evidence.
- It is submitted that the warnings should have included a reference to a suggested tension between C’s evidence, and that of her brother, about what had happened in the incident at the appellant’s brother’s workplace. C’s evidence was that at this place, she had screamed at her own brother not to go up on a hoist. Her brother testified that he could recall being on the hoist, but could not remember C being there at all. Further, the argument points to an inconsistency between the evidence of a preliminary complaint witness (C’s husband), who said that C had told him that she was at this place with A and more than once, and the evidence of each of C and A on the matter.
- Each of those points about C’s evidence was validly made by defence counsel to the jury. But they were not circumstances which had to be identified to the jury in the context of the Robinson direction.
- It is argued that the jury should have been told, in this context, that there was no evidence of any apparent sign of the offending at the time, as would have been expected had the offending occurred. The complainants’ parents noticed no evidence of blood or semen on the girls’ clothing. And no complaints of pain had been made by either girl. However A said that she probably hid her clothing, and C gave evidence which was to the effect that the parents were not attentive to the children’s needs.
- It is argued that the jury should have been told that it was a curious feature that there were adults and other children who were around whilst much of this offending took place, yet none of the other witnesses gave evidence of being aware of it. It must be said, however, that this is not such an unusual feature of cases of this kind.
- It is argued that some of the evidence was implausible, such as C’s evidence that, in relation to an offence which occurred in the appellant’s car, the appellant was driving for as much as 20 seconds with his eye off the road, whilst he kissed C. Another example of implausible evidence is said to have been A’s evidence that she was anally raped in the lounge room of her house before school, while others were in the house, and her evidence that the appellant offended against her in the garage when her father had gone into the house to fetch something. Again however, the argument does not demonstrate that these were features of the evidence which the judge had to mention as the explanation for his warning.
- It is said that the judge should have identified, in this respect, what is said to have been a significant discrepancy between C’s account of why the offending against her stopped, and what she said to her friend about that matter. In her evidence, C said that the offending stopped when she began to menstruate, although not because the appellant was concerned about her becoming pregnant. According to her friend’s evidence, C said that the offending stopped so she would not become pregnant. That difference was not irrelevant, but it was not such a feature of the case involving C that it required to be mentioned in this context.
- Lastly, it is said that the judge should have identified what were said to be varying descriptions of the appellant’s ejaculate. The differences between the descriptions given by the complainants and those given by the appellant’s wife and the complainants’ mother, were not significant, at least so as to require their identification in the context of this direction.
- In my conclusion, the directions which were given were not deficient. It is understandable that the appellant’s trial counsel did not challenge them.
- None of the grounds of appeal can be accepted. I would order that the appeal be dismissed.
- MULLINS JA: I agree with McMurdo JA.
R v Hyde  QCA 148.
(1989) 168 CLR 79.
(1999) 197 CLR 162.
cf R v TJW  1 Qd R 108 at 112 (a public hospital); R v Murdoch  QCA 239 at - (a private school); R v Cook (1980) 71 Cr App R 205 at 211 (the Commissioners of Customs and Excise); R v Gwilliam  3 All ER 821 at 823 (the Home Office Supply and Transport branch).
(2000) 206 CLR 161 at 172 ;  HCA 60.
(1990) 19 NSWLR 677 at 684.
Ibid at 683.
(2016) 258 CLR 108 at 130-131 .
(1999) 197 CLR 162 at 171 .
- Published Case Name:
R v Hyde
- Shortened Case Name:
R v Hyde
 QCA 196
Sofronoff P, McMurdo JA, Mullins JA
11 Sep 2020