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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Pardon  QCA 290
PARDON, Frank James
CA No 20 of 2020
DC No 308 of 2017
Court of Appeal
Appeal against Conviction
District Court at Maroochydore – Date of Conviction: 11 December 2019 (Cash QC DCJ)
18 December 2020
14 July 2020
Sofronoff P and Philippides JA and Davis J
CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 10 counts of indecent treatment of a child under 16 years and one count of maintaining a sexual relationship with a child with a circumstance of aggravation – where the appellant was convicted on all but one of these counts – where the appellant submits that the jury’s guilty verdicts were unsafe and unsatisfactory – where the appellant points to inconsistencies in the evidence relating to counts 3 and 4, inconsistencies in the complainant’s preliminary complaints and submits that her evidence was inherently unreliable due to the complainant receiving hypnotherapy – whether the jury’s guilty verdicts were unsafe or unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where a pretextual phone call between the complainant and the appellant was tendered as evidence at trial – where the appellant submits that a miscarriage of justice has been occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of “the confessional statements” – whether the learned trial judge misdirected the jury
R v BDJ  QCA 27, cited
Subramaniam v Public Prosecutor  1 WLR 965;  UKPC 21, cited
Woon v The Queen (1964) 109 CLR 529;  HCA 23, cited
A M Hoare with P Wilson for the appellant (pro bono)
D Nardone for the respondent
Worcester & Co for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: The appellant was charged with 10 counts of indecent treatment of a child under 16 years and one count of maintaining a sexual relationship with a child with a circumstance of aggravation. He was convicted on all but one of these counts.
- He has appealed on the ground that the jury’s guilty verdicts were unsafe and unsatisfactory and also on the ground that a miscarriage of justice has been occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of “the confessional statements”.
- At the time of these offences the appellant was in his mid-40s. The complainant was 14 years old. The complainant gave the following evidence. In October 1994 she attended her oldest sister’s wedding. At the time the complainant was in Grade 9 at the local State High School. The appellant was one of the groomsmen and he was her assigned partner at the wedding. During the reception the appellant danced with her. At one point in the evening, while the two of them were sitting outside, the appellant told the complainant that he wanted to kiss her.
- The appellant and his wife ran a fruit shop and in November or December of the same year the complainant began to work for them. The complainant said that on the first occasion that she entered the shop’s cold room at the business premises to stock the shelves, the appellant came in and, using his hands, he began “rubbing up behind – up and down my body at the back. My bum and back. And then he stopped and starting rubbing up and down my thighs and my legs”. The complainant was dressed in shorts or a short skirt. This was count 2 on the indictment.
- Sometime later, for reasons the complainant could not explain, the appellant asked his wife if the complainant could stay the night at their house. She slept at the appellant’s house twice. On the first night that she was there the appellant drove her to a video store to rent a video cassette. As they were driving to the store the appellant pulled his car over near the local football club and parked behind some trees. He told the complainant that he wanted to kiss her. He got out of the car and came around to her side and opened the passenger door. He pulled down the complainant’s shorts and put his finger inside her vagina. This was count 3. He then performed oral sex upon her. This was count 4.
- The complainant recalled returning to the appellant’s marital home where “he was just so normal as if nothing had happened”. Later, when the complainant had gone to bed and fallen asleep, the appellant entered her bedroom and “put his hands up under the blankets and rubbed up my leg and towards my breasts”. He felt her breast under her clothing. She recalled that the appellant pulled her towards him and kissed her while rubbing his hands over her body. He said that he wished that she was 16 so that he could sleep with her. This was count 5.
- The complainant gave the following evidence about count 6:
“I remember it was either – I believe it was another night and he was – I was asleep and then he came in and he was – I woke up. I just felt – and it felt like a rat on my chest, and I threw it off and screamed and then I believe I seen him leave the room that night.”
- The jury acquitted the appellant on this count.
- The complainant said that one morning while she was staying at the appellant’s house, while his wife was absent, she and the appellant were together in the kitchen area where he “was, like, rubbing – like, pulling me close to him again as we were standing, and he’s, like, rubbing around my bum---”. This was count 7.
- The complainant said that the procedure that was followed when closing the shop at the end of a business day was for the appellant to pull down the external perspex doors at the front. On one occasion when he had done this the complainant was facing the doors. The appellant came over to her, pulled her pants down to her ankles and “put his tongue near my vagina again”. He told the complainant that “he wished that I was his wife and that we could go somewhere together”. She recalled that he pulled her pants up afterwards. This was count 8.
- On another occasion the complainant and the appellant were driving in the appellant’s motor vehicle. He stopped near a location called “the doggy beach” and said he wanted to kiss her. He rubbed her up and down her thighs near the genital area. He said that he wanted to leave his wife. This was count 9.
- On another occasion the complainant and her friend, Hope, were at the local swimming pool. The appellant entered the pool and “was, like, behind me and, once again rubbing my thighs, up and down my thighs”. He used his hand to rub her inner thighs “very close” to her genital area. This was not a charged act and was led as evidence to show sexual interest.
- Immediately after this incident the appellant drove the complainant and her friend back to the fruit shop. The appellant gave the two teenage girls an alcoholic beverage. The complainant said that the appellant told her to “come over” and he began kissing her and using his hand to rub her up and down her body. He reached out with his arm for the complainant’s friend also and touched her “around the bum”. This was count 10.
- The appellant then drove the two girls home. He took an indirect route and stopped in a location near a national park where he again kissed the complainant and tried to put his hand up under her underpants. He was able to touch her vagina. This was count 11.
- The complainant stopped working at the fruit shop in early 1995. On Valentine’s Day of that year she said that she was called out of class to the school office. The appellant was there with a bunch of flowers which he presented to her.
- The complainant said that she had spoken to Hope over the years since 1995 and had told her “parts of what happened”. She also gave some non-specific information about the appellant’s acts to her mother and to her sisters, Kim and Shelley. After she married her present husband in 2016 she also disclosed these matters to him in general terms. In 2014 she consulted a psychologist, Alison Muir, for assistance with weight loss. She told Ms Muir that she had been sexually abused and, for the first time outside the family, she revealed the appellant’s name. The complainant also consulted a general practitioner, Dr Karen Sander. She told Dr Sander that she had “been sexually abused” but did not identify the appellant.
- Seeking further assistance for weight loss and to alleviate her anxiety, the complainant consulted Mr David Taylor, a hypnotherapist. Without detailing any of the events, she revealed to Mr Taylor that she had been sexually abused as a child. She underwent three or four hypnotherapy sessions with Mr Taylor.
- The defence case put to the complainant during cross-examination was that the appellant had done none of the things which she alleged against him.
- Hope gave evidence which was supportive of the complainant’s evidence in relation to the events at which Hope was present. She recalled the appellant entering the swimming pool and speaking to the complainant but gave no evidence that she had seen anything amiss. She gave evidence about having “a few drinks” at the fruit shop and recalled the appellant touching the complainant “in an affectionate way around the waist” and kissing her. She recalled the appellant touching the complainant on the legs and “maybe up her skirt a little bit”. She recalled the appellant putting “his arm out to me at some stage” and that he may have made contact with her “slightly, around my waist”. She recalled that the kisses which the appellant gave the complainant were “passionate”. She described the kiss as an “open-mouthed kiss”. She said that the appellant pressed the complainant up against a bench so that she was “partly sitting on the bench when he pressed himself up against her”. She also recalled the deviation on the journey home during which she saw the appellant kissing and touching the complainant once more. These kisses were also “passionate, open-mouth-type” kisses. She recalled that she and the complainant were both affected by the alcohol which the appellant had given them.
- Hope said that the complainant had told her that she “had to stay at Frank’s place a number of times for work” and that he had “snuck into her room without [his wife] knowing”. She recalled being told that the appellant had touched the complainant and kissed her. She recalled being told that the appellant had taken the complainant to the video shop to get a movie and had stopped near football fields where he had come around to the passenger side and taken the complainant’s pants down, touched her inside her vagina and performed oral sex on her.
- In cross-examination it was put to her that the sexual incidents in the business premises did not happen. It was also put to Hope that the events which she described happening in the car on the way home did not happen. It was not put to her that the appellant did not supply the two girls with alcohol.
- The appellant’s former wife, Ms McDonald, gave evidence that it had been brought to her attention that the complainant had consumed alcohol on the business premises. Ms McDonald said she became very angry and confronted her husband. They had the following exchange:
“And I went in and I said – asked him what he was thinking, you know, and he – and I said, “Giving young girls alcohol”. And he said, “I didn’t have sex with them”, and I said, “I didn’t say that. I said they – they’re only kids”. He said, “I didn’t force them to drink”.”
- By reference to other events Ms McDonald was able to pinpoint the date of this conversation on 19 January 1995.
- By way of rebuttal of Ms McDonald’s evidence that the appellant had volunteered his denial of having sexual relations with the girls, defence counsel put to her that she had said to her husband, “You got those two girls drunk and then had sex with them” and that he had replied, “I didn’t get them drunk and I didn’t have sex with them”. Ms McDonald rejected this proposition.
- The prosecution called Kaye Gibson, who met the appellant in 2007. They became friends and, later, were intimate with each other. By that time the appellant had long since separated from his wife and he was estranged from his children. Not knowing this, Ms Gibson asked him whether they were going to “cater” for his family and children during Christmas. He disclosed to her that he did not have contact with his children. Ms Gibson asked him why that was. Her evidence was:
“He – he just went, “There was as [sic] girl. I was in love with a girl.” That was the way the conversation started. And then he said she was the junior at – she was too young, she was the junior at the fruit shop. And he sort of elaborated a little bit about the intensity of the relationship and – yeah.”
- She also gave the following evidence:
“He mentioned that he was in love with her and that they were able to find time to have intimate moments in the cold room of the fruit shop.”
- And a little later:
“He said he was in love with her and that it was a – a very serious – it was an emotional – very deep, emotional thing for him and that it offered some trauma to him because of how inappropriate it was. He knew it was wrong and – and then the carnage that happened as a result, he felt badly about it and the carnage was that his children didn’t talk to him any more ---”.
- Ms Gibson also gave the following evidence:
“And did he – he referred to things happening at the shop and in the cold room. Did he mention any other location?---Yes, he did, actually. He did mention the car with the two girls, and he did say something about that to me.”
- The defence case was that the appellant had told Ms Gibson that his wife had accused him of getting the girls drunk and having sex with them. She denied this. She replied:
“Frank admitted to me that it was true. He admitted it to me openly in a remorseful way, and that was why his family had completely severed ties with him. It was a brief conversation.”
- Richard van den Heuvel was also an employee at the fruit shop while the complainant worked there. He recalled the complainant telling him that:
“… she was, in fact, with a friend in the back of the – [fruit shop], and she had been pushed up against a wall …
She was just manhandled up while she was being held up against the wall.”
- Mr van den Heuvel’s evidence was not challenged on this point.
- The complainant’s sister, Kim, gave evidence. She said that after the complainant had married in 2006 she recalled having conversations with her during which she disclosed some of the things which she said the appellant had done to her. In particular:
“At work, that – that he pinned her up against the cold room and the cold room wall and started – was touching her, yeah.”
- The complainant’s husband also gave evidence that the complainant had told him that the appellant had “touched me sexually” when she was 14 years old. This evidence was not challenged.
- The complainant’s psychologist, Ms Muir, said that the complainant had told her that:
“… as a young girl, around the age of 13, she had a job and she had a family friend who was very trusted with the family. She stayed with that family and, in fact it was Frank Pardon’s family. And, in that timeframe, he abused her sexually.”
- This evidence was not challenged.
- The complainant’s general practitioner, Dr Sander, said that the complainant had revealed to her that she had been “sexually abused by her then boss when she was approximately 13”. This evidence was not challenged.
- The complainant’s hypnotherapist, Mr Taylor, gave evidence about the nature of the therapy which he gave to the complainant. He said that the complainant had not said anything to him about having suffered sexual abuse. He said that the hypnotic state which he induced in the complainant was a “light to medium trance state”. Mr Taylor said that it was his practice that if sexual abuse was mentioned he would not engage in hypnotherapy with a patient. It was not put to him that any of the therapy that he offered might have evoked false memories.
- A psychiatrist, Dr Warwick Middleton, gave evidence concerning Mr Taylor’s hypnotherapy. He said that this kind of therapy was not likely to affect her memory of events such as allegations of sexual abuse that she had described. He gave reasons for holding that opinion. Dr Middleton accepted that hypnotherapy could create false memories if one was using a regressive form of hypnotherapy and if “one was trying to actually alter or suggest memories”. This would be so in a small percentage of the population. But he said that the hypnotherapy given to the complainant would not have had that result. He said that such a conclusion “doesn’t seem logical to me”.
- The cross-examination proceeded upon the basis that it was possible that the hypnotherapy could create false memories. The substance of Dr Middleton’s evidence was that there was absolutely no reason to think that the hypnotherapy undertaken by the complainant resulted in her making false allegations.
- The problem with the hypnotherapy hypothesis was that the complainant had already made a disclosure about the appellant’s behaviour to her husband-to-be in the early 2000s. She had also made her disclosure to Dr Muir before undergoing hypnotherapy. Also, the complainant’s disclosure to Dr Sander was made before undertaking hypnotherapy.
- After making a complaint to police, Detective Senior Constable Tony Schuler arranged for a pretext phone call to be made by the complainant to the appellant. Relevantly, there were the following exchanges:
“[APPELLANT] Yeah, yeah, oh god that’s a long time ago, yeah.
[COMPLAINANT] Yeah, it was twenty-two years ago.
[APPELLANT] Oh, my god, oh you would be married and kids by now would ya?
[COMPLAINANT] Certainly am. Um …
[APPELLANT] I told you don’t do it, yeah great to hear from you, how can I help you love?
[COMPLAINANT] Um, I was just ringing, I just wanted, I saw you the other day at the Civic as well and it just bought back memories, and I just wanted to talk to you about um, like a few things that sexually happened between us, and I just wanted to let you know how I felt.
[APPELLANT] Oh, yeah, alright, I’ll talk to you anytime, yeah. Hey, that, that was you at the Civic went past.
[APPELLANT] I thought I recognised ya, yeah.
[COMPLAINANT] An um, yeah, I just wanted to kinda say that, yeah, it has kinda, it’s stuck with me and um, I just … yeah, I always feel like, taken away, like a lot of my firsts. Like sexually, and um, it has affected me, and I wanted you to know that.
[APPELLANT] Oh, it did affect you?
[APPELLANT] Yeah, well I, I would of … left my wife and everything for you. Um, I um, yeah, I, yeah, it, it was hard on … well, yeah. You were so young yeah, and um. That’s why I never, even though we, you know, we got close to real intimate at times. I … yeah, I … the resistance, I just I remember telling you once, saying ‘Until you’re 16 or older, I didn’t want to do anything like you know, that was way over the top.’ But I’ve never forgotten you and I um and you know … you’re a fantastic young person and I think you’d be a fantastic mum now. But um, yeah, did you want to have a coffee or something or catch up?
[COMPLAINANT] No, I just wanted to let you know how I felt and yeah that’s pretty much thank you.
[APPELLANT] Yeah okay. Well, are you alright now?”
- The appellant gave evidence at his trial. He denied committing any of the acts which were the subject of charges against him. He denied that he had volunteered a denial of sexual activity to his wife in the way she had described. He explained his visit to the complainant’s school by saying that she had asked him for a reference. As to the flowers which the complainant said he presented to her, he gave the following evidence:
“Could have, but it’s most unlikely that I would take flowers up that school. I just don’t figure it.”
- In his evidence in chief he addressed what he had said in the pretext phone call in the following way:
“Why did you say those things to her?---Well, we’d had – she’d – we had some intimate conversations – what I call intimate conversations with regards to sexual matters. She said – one time I was taking her home. She watched – or observed a friend of hers having sex by a pool – I think it was the Noosa Apartments – with a guy. And I said to her, as you would – I got – at I said, I got a daughter and five sisters. I said, “You don’t want to be, you know, doing anything like that that’s” – but I – I wouldn’t have said “over the top” back then. That’s a mo– that’s a more modern term. I just said, “With regards to having any sex or sexual relations, you want to wait until you’re older.””
- In cross-examination there was the following:
“And then she says to you:
I just wanted to kind of say, yeah, that it stuck with me and I just, yeah, always feel like you’ve taken away a lot of my firsts sexually and it has affected me, and I just wanted you to know that.
You heard her say that, didn’t you?---Yes, I did.
So she’s saying to you you’ve taken away a lot of her sexual firsts?---That’s right.
So what did you think she was meaning by that?---Yeah. Well, what I was think – I was thinking about to the – back – trying to think, “What the hell – where this is coming from.” The – so I’m thinking back. The only interaction, if you want – or two interactions – the wedding I met with her, danced with her, and the night at the pool. So I’m – so I’m thinking back the night at the pool. You know, the intimate stuff, hand in lap. That’s all I was thinking about. But also the – I – you’ve got to watch this stuff on the phone, because I’d been referred – one fellow to me ---”.
- Later there was the following:
“But back to my – sir, back to my question. This woman has just said to you that you’ve taken away a lot of her firsts, sexually. She’s told you it’s affected her. You’ve said:
Oh, it did affect you?
Question. She said yes, and then you said:
I would have left my wife and everything for you.
?---Yep. It’s a term of endearment, and it’s---
And that’s rubbish, isn’t it?---No, it’s not rubbish. It’s a term of endearment, and I knew this girl, and I knew the whole family.”
- There was also this:
“The resistance – I just remember telling you once, until you were 16, older, I didn’t want to do anything like that, like, you know? That was way over the top.
Well, what were you waiting until she was 16 before you were prepared to do something to her?---Yeah. I meant---
What were you going to do?---All right. I meant to say that “You need to wait till you’re 16 before you do anything.” It came out “she”; that’s the way it is, that’s the words that are there. But I meant to say “you”. Change one word, and it’s a whole different meaning.
But that’s not what you said?---But that’s a mistake.
That’s not what you said, is it?---No, no. That’s not what I said. I’m saying what I meant to say.”
- The appellant submitted that the jury’s verdicts were unreasonable or unsupported by the evidence. In respect of counts 3 and 4, which concern the offences committed on the trip to the video store, the appellant submitted that the evidence “from other credible sources is inconsistent with the offence having been committed at all”. This is incorrect.
- The appellant submitted that there was “only evidence of a single trip to the video store” but that the appellant’s ex-wife, Ms McDonald, gave evidence that she was present on a trip to the video store. Ms McDonald’s evidence was the following:
“…I don’t know the dates. I have got no idea. But we went up and – because she was a say [sic] little thing, and I said, “Well, let’s get a video”. We went to the video shop, when videos were really popular.
And I said, you know – and she went to bed that night. Up – go to work the next morning.”
- The thrust of the complainant’s evidence was that she could not remember more than one journey to the video store and she was firm in her evidence that it was on a journey to the video store that the events took place that resulted in counts 3 and 4. In cross-examination Ms McDonald gave some detail about the journey she took with the appellant and the complainant to the video store. She recalled saying to the complainant that she had to pick a video because “if Frank picks it, he’ll pick some war movie”. However, it also emerged in cross-examination that the complainant stayed at the appellant’s house on another night when Ms McDonald was absent in Sydney.
- It was open to the jury to conclude that the complainant’s evidence concerning counts 3 and 4 related to a trip she took to the video store with the appellant during that absence notwithstanding the complainant’s inability to recall that she had also made another trip to the video store in company with Ms McDonald.
- The appellant also pointed to what are said to be inconsistencies in the complainant’s preliminary complaints. There is nothing in that argument. Each of the witnesses who gave evidence about the preliminary complaints were clear that the complainant did not descend into any detail when disclosing the appellant’s conduct. Many of these preliminary complaints occurred years after the events. For that reason also any inconsistencies could not possibly be fatal to the Crown case or give rise to any reason to doubt the verdicts whether this is a matter that is taken in isolation or considered with all the other matters upon which the appellant relies.
- Inconsistencies of the kind relied upon by the appellant otherwise, such as the evidence of witnesses that the complainant said that the abuse had happened when she was 13 years old whereas she was actually 14 years old, and her evidence that she told her hypnotherapist that she had suffered sexual abuse but the hypnotherapist denied that he had been told that, are contradictions and uncertainties that are bound to arise when evidence is given about events that happened years ago. It is for that reason that appropriate directions are given by trial judges to ensure that the jury is equipped to deal with such matters.
- These arguments based on such inconsistencies should be rejected.
- The evidence of the complainant as it appears from the transcript is clear. Her credit was supported by the evidence of other witnesses concerning preliminary complaint. It will be necessary to consider the content of the pretext phone call in due course. However, subject to the appellant’s argument about the proper direction that should have been given, the content of that phone call as well as the appellant’s statements to Ms Gibson were powerfully supportive of the Crown case. The jury was also entitled to reject the appellant’s attempts to explain his responses to the complainant during that phone call.
- The appellant also submitted the following:
“The explanation for the contradictions in the evidence is the effect of psychiatric treatment. The distortions in memory, that may be a consequence of that treatment, explain why an otherwise credible witness would be inherently unreliable.”
- This submission is not open on the evidence. The only evidence at the trial concerning the possible effects of hypnotherapy was that which was given by Mr Taylor and Dr Middleton. Each of them were firm in their views that the hypnotherapy undertaken by the complainant could have had no effect upon the reliability of her memory. There was no evidence the other way. It would have been perverse for the jury to have taken into account the speculative notion, for which there was no evidentiary support at all, that the hypnotherapy might have rendered the complainant’s evidence unreliable.
- For these reasons this ground of appeal should be rejected.
- By his second ground of appeal the appellant contends that the learned trial judge ought to have directed the jury “as to the use they could make of the confessional statements”.
- The appellant submitted that the confessional statements relied upon by the Crown did not “obviously correspond with the offences as particularised” and that from this it followed that the jury should have been directed that they would need to be satisfied that the statements were admissions by the appellant as to the commission of the offences charged. It was submitted that if the evidence constituted an admission to the commission of other unlawful conduct, then it could not be used as evidence of guilt of the charged offences. The appellant submitted that the jury should have been warned that the use of the confessional evidence was “potentially limited to proving the sexual interest held by the defendant”. He relied upon R v BDJ.
- To determine this ground of appeal it is necessary to identify some fundamental principles about evidence of an accused’s incriminating words.
- There are several forms of evidence that can be adduced.
- Sometimes a disputed fact can be proved by the presentation of the very thing that must be proved. In a case in which it is material to prove that an injury has been suffered, the person who suffered the injury may show the tribunal of fact the actual injury. In a case in which it is necessary to prove the existence of a document, its existence may be proved by its actual production as a piece of evidence. A contempt of court in the face of the court is proved by the actual commission of the offence in the presence of the judge.
- In the case of the injury and the document, it may remain necessary to prove ancillary matters, such as how the injury was suffered and the fact of receipt of the document. Proof of such matters can only be by indirect means.
- For this purpose another kind of evidence is used. One of these is testimonial evidence which is evidence that consists of assertions by persons. An eyewitness describes an event. The tribunal of fact accepts that the event happened because the witness says, from direct experience, that the event happened and the tribunal “accepts the evidence” and makes a finding of fact accordingly. Strictly speaking, the finding is the result of an inference which the tribunal draws from the statement of the witness as well as the tribunal’s conclusion that the witness’s memory is accurate and that the witness is honest. The judge infers the existence of a fact which the judge has neither seen nor heard from what the judge sees and hears in court. The inference which links the testimony and the finding is so natural and so direct that its existence is almost always ignored. Nevertheless, as will appear, in some cases the conditions for drawing the inference have to be addressed.
- Circumstantial evidence is evidence which proves a fact from which the existence of another fact may be inferred. The inference is the result of a mental exercise by the tribunal of fact using human experience as the basis for deduction or induction, the so-called “common sense” that every jury is assumed to possess and use, and which leads to a conclusion about a fact.
- Whatever form that evidence might take, it must be relevant before it can be admitted for consideration by the tribunal of fact. Relevance is the relationship between the things tendered in evidence and the proposition that those things are intended to establish. A piece of evidence is relevant if its existence tends to render the existence of another fact more probable or, as the case may be, less probable. The fact whose existence is proved by the piece of evidence might itself be a fact that will itself be used in turn to imply the existence or non-existence of a further fact. In this way, pieces of evidence prove facts from which the existence of other facts may be inferred and which finally combine together to prove the ultimate facts in issue.
- The principles that govern the drawing of an inference about the existence of a fact from oral evidence given in court are familiar. These include the many ways by which the credibility of a witness can be affected in ways that weaken the validity of the inference to be drawn. Some of these principles govern the use of the testimonial evidence that consists of out-of-court statements of persons, commonly referred to as hearsay evidence. The prima facie rule is that hearsay evidence cannot be admitted to prove the fact contained in the hearsay statement. The rationale for the rule that is commonly put forward is that a hearsay statement cannot be regarded as sufficiently trustworthy to be used as evidence because the maker of the statement is not in court to allow the reliability of the statement to be tested by cross-examination. However, hearsay evidence may become admissible if it satisfies certain rules that bear upon the reliability criterion. Some of these rules have been created by statute. For example, s 93B of the Evidence Act 1977 (Qld) makes hearsay evidence admissible in criminal proceedings if certain requirements are satisfied. One of these is that the statement was “made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication”. Another example is s 21AM of the same Act which renders the recording of a child’s evidence admissible to prove the facts stated in it.
- Evidence of a confession or admission is hearsay evidence but is prima facie admissible. Two rationales have been offered for treating such evidence as not presumptively unreliable. First, it has been said that the objection based upon the inability to cross-examine the speaker of the hearsay admission cannot apply because the speaker is a party who can, if he or she chooses, give evidence to explain the hearsay statement. Sometimes, however, the speaker of the hearsay is not available to give evidence but the statement is still admissible. Second, it has been said that the unreliability of such statements cannot be presumed in the same way as other hearsay statements because “what a party himself admits to be true, may reasonably be presumed to be so”. However, this rationale cannot apply to a statement made before litigation in circumstances in which the statement was not, at the time it was made, “against interest”.
- A further rationale is that when such a statement is tendered as evidence against a party, it is offered as a statement that contradicts the party’s present position in the litigation. As self-contradiction, its effect is to break down the integrity of the opposing party’s case which has been asserted in the pleadings in a civil case and by a plea of not guilty in a criminal case. It includes the case and the parts of the case which emerge forensically during the course of the proceedings.
- Although such evidence is commonly referred to as evidence of an “admission”, that term is strictly speaking inapt because an admission usually connotes a statement by which the speaker knowingly acknowledges a wrong that is alleged. As has already been said, the statement might have been made at a time when there was no reason for the speaker to suppose that it could adversely affect his or her interests because those interests had not then been impugned. For example, a defendant might have said that he or she was present in Brisbane on a particular day. At the time when the statement was made the defendant’s presence in Brisbane was of no significance. If that presence, as a fact, becomes a crucial link in a case later brought against the defendant, the statement which was made guilelessly may become pregnant with proof of the defendant’s guilt. Although it was never a “statement against interest”, it has become relevant as a contradiction of the defendant’s forensic position and it is admissible for that reason. The effect of such evidence is to discredit the defence position at trial.
- Sometimes such evidence is comprised of a combination of an alleged victim’s hearsay accusation together with the defendant’s response. The response might be one which expressly accepts the accusation or it might be one which implicitly does so. The response may have been to make no response at all, in which case the lack of response might itself be evidence of an acceptance of the accusation if, in the circumstances, only a guilty person would have reacted in that way.
- A statement tendered as an admission might be equivocal in the sense that it may be regarded as a reference to the charged act or as not referring to it. If the statement is capable of referring to the charged act when it is considered together with other evidence then the statement is admissible and whether it constitutes an admission of guilt of the offence is a jury question.
- This exposition has been necessary in order to understand the significance of the evidence of the pretextual phone call.
- It will be recalled that, according to the complainant, on the occasion of the commission of the offence in count 5, the appellant said to the complainant that “he wished that I was 16 so that he could sleep with me”. During cross-examination defence counsel put to the complainant that this offence “just didn’t happen”. Implicitly, the defence case was that the conversation containing those words did not occur because there was no occasion on which to use them. However, during the phone call the appellant said, “I remember telling you once, until you were 16 or older, I didn’t want to do anything like, you know, that was way over the top”. The evidence of those comments made during the phone call contradicted the appellant’s case and his forensic position that he had had no sexual relations with the complainant and that he had no sexual feelings towards her.
- When recounting the events concerning count 8, the complainant said that the appellant had said that “he wished that I was his wife and that we could go somewhere together”. During the phone call he said, “I would of … left my wife and everything for you”.
- The appellant’s case was that he had never had any sexual feelings for the complainant. In his evidence at the trial he asserted that that was so. However, during the phone call he said, “I would of … left my wife and everything for you” and “I’ve never forgotten you” and “yeah, it, it was hard on … well, yeah. You were so young yeah” and “we got close to real intimate at times”. This was a contradiction of his case and it was a contradiction of his evidence that he had used that expression jokingly.
- The defence case at trial was that there had been no sexual acts between the appellant and the complainant. Yet, when the complainant said, “I just wanted to talk to you about um, like a few things that sexually happened between us, and I just wanted to let you know how I felt”, the appellant’s response was not an inquiry about what she meant or a denial but instead, “Oh, yeah, alright, I’ll talk to you anytime, yeah”.
- This was evidence contradicting his position at his trial. The words were evidence of his sexual attraction for the complainant (which he denied) as well as evidence of an acknowledgement of the truth of the complainant’s assertion to him that a “few things [had] sexually happened” between them (by his failure to challenge or question her assertion).
- The evidence of Ms Gibson was to the same effect. She said that the appellant had told her that “he was in love with her and that they were able to find time to have intimate moments in the cold room of the fruit shop”. He told Ms Gibson that “it was a – a very serious – it was an emotional – very deep, emotional thing for him and that it offered some trauma to him because of how inappropriate it was”. He told Ms Gibson that he “knew it was wrong”. He related to her the incident in “the car with the two girls”. Ms Gibson said that the appellant “admitted it to me openly in a remorseful way” and he explained that his behaviour towards the complainant “was why his family had completely severed ties with him”. This evidence was capable of being viewed as an admission of wrongdoing by engaging in sexual acts with the complainant.
- The evidence of Ms McDonald, the appellant’s former wife, that in answer to her remonstrance to his giving alcohol to two young girls he volunteered the protest that he “didn’t have sex with them” is relevant for another reason. The doing of a criminal act may leave an offender’s consciousness with a moral effect. When such consciousness of guilt can be proven, it can be very powerful evidence of guilt. In the context of a case in which the complainant and her friend Hope had both given evidence about the appellant’s sexual acts with them at the fruit shop, the appellant’s uncalled for response to his wife when she confronted him could be regarded as the reaction of a guilty mind.
- Similarly, the evidence of another of the appellant’s former wives, Ms Watson, that he had told her that on the night of the wedding he had “ended up in a swimming pool” with “a couple of girls from the wedding”, one of whom was a bridesmaid, while entirely unsupported as to the precise event it described, was some evidence of the appellant’s contemporary sexual interest in the complainant, a contradiction of his case at trial.
- The statements that amounted to an acknowledgment of engaging in sexual acts with the complainant and a sexual interest in the complainant were statements against interest when they were made. They were an acknowledgment of his doing things that the appellant must have known were morally, if not legally, wrong. On the evidence of Ms Gibson, the appellant did know that they were wrong. This evidence did not descend into detail about the particular sexual acts or offences. It did not need to. It was not tendered to prove the commission of any particular offence. It was tendered as part of the Crown case which also contained the direct testimonial evidence of the complainant. It was tendered to raise the inference that the appellant would not have accused himself falsely of such wrongdoing and that his statements were true. It was tendered to show that the appellant’s words in the phone call contradicted his case and were the words of a man who had committed the offences charged or some of them. If one inferred that he had, as he had said, committed sexual acts with the complainant then the question arises what those acts might have been. To prove the criminal acts the Crown led evidence from the complainant. If accepted, her evidence proved the commission of the offences. The appellant’s admissions that he had engaged in sexual acts with the complainant and his admissions of a sexual interest in her was evidence which also supported the complainant’s evidence as truthful.
- The relevance and the force of this evidence also lay in its destruction of the credibility of the appellant. It constituted a contradiction of his denials of the charged sexual acts and his sexual interest. If the jury accepted that the appellant said the words attributed to him that finding rendered improbable the appellant’s in-court denials.
- The learned trial judge told the jury that the prosecution relied upon this evidence as “tending to indicate his guilt”. His Honour asked the jury to consider the question, “Do they tend to indicate his guilt?” The way in which the evidence tended to indicate guilt was obvious. It utterly contradicted the story which the appellant told the jury and supported the complainant’s evidence.
- No particular direction about this evidence was sought by the appellant’s very experienced counsel. That is understandable. A more dense and detailed direction would have required the judge to rehearse the content of the evidence and to instruct the jury, in terms of the analysis above, how that evidence might be used to devastate the appellant’s case. The prosecutor, who addressed last, had already done that at some length on the preceding day and on the morning of the summing up. The defence would have been hurt forensically if the judge reminded the jury about the significance to the Crown of that evidence yet again. There was nothing good in it for the defence. Moreover, it was not necessary, for the reasons given, for the learned trial judge to try to refer the admissions to particular offences.
- This ground should be rejected.
- The appeal should be dismissed.
- PHILIPPIDES JA: I agree with the order proposed by Sofronoff P for the reasons given by his Honour.
- DAVIS J: I agree with the reasons of Sofronoff P and the order his Honour proposes.
The jury returned a verdict of not guilty on count 6 which was one of the counts of indecent treatment.
Or, as the appellant’s counsel put it, they were “unsafe and unsatisfactory”.
 Paragraph 46 of the appellant’s outline of submissions.
 QCA 27.
Subramaniam v Public Prosecutor  1 WLR 965 at 970.
See eg. Cross on Evidence, 8th Australian edition, .
Slatterie v Pooley (1840) 6 M & W 664 at 669.
Woon v The Queen (1964) 109 CLR 529 at 539 per Taylor J and at 541 per Windeyer J.
See R v Berrill  Qd R 508 at 526-528; R v Stratford & McDonald  1 Qd R 361; R v McK  1 Qd R 476; R v Kerim  1 Qd R 426; all considered in R v Kalajzich & Orrock (1989) 39 A Crim R 415 at 429-433. See also R v SJRC  NSWCCA 142 and R v Caulfield  QCA 204 at .
- Published Case Name:
R v Pardon
- Shortened Case Name:
R v Pardon
 QCA 290
Sofronoff P, Philippides JA, Davis J
18 Dec 2020