The Queen v G[1997] QCA 175

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1997

Brisbane

THE QUEEN

v

G

Appellant

Macrossan C.J

Fitzgerald P

Davies J.A

Judgment delivered 20 June 1997

Joint reasons for judgment of Macrossan C.J. and Davies J.A.; separate dissenting reasons of Fitzgerald P.

APPEAL DISMISSED

JOINT REASONS FOR JUDGMENT - MACROSSAN C.J. AND DAVIES J.A.

Judgment delivered 20 June 1997

The appellant was convicted in the District Court at Bundaberg on 12 February last on two counts of indecent treatment of a child under the age of 16.  The first involved exposing a child to an indecent act which was masturbating himself in front of her.  The second involved procuring the child to commit an indecent act which was causing her to hold his exposed penis.  Each of the charges had contained a circumstance of aggravation that the child was under his care but in each case he was acquitted of the offence containing the circumstance of aggravation.  He appeals against his convictions.

The offences involved two incidents on one day in August 1994 when the complainant was 15 years of age.  She was the daughter of B who had formed a relationship with the appellant in 1986 which had produced a child in 1993.  The appellant did not live with the complainant and her mother but was a frequent visitor to the home where they lived with the complainant's sister J, who was two years younger than she, and the child of the relationship.

The Crown case depended entirely on the evidence of the complainant.  She swore that, on the day in question, the appellant had taken her shopping for shorts and a t-shirt after school and returned with her to her home.  When she was in the laundry of the house obtaining bird seed to feed a parrot the applicant attracted her attention and masturbated in front of her.  He then took some bird seed and walked outside.  A little later she saw him and his penis was still outside his shorts.  He asked her to touch it and she refused.  He then held both her arms and placed one of them so that her hand went on to his penis.  He then made her pull it twice.

There was some uncertainty, on the complainant's evidence, as to whether her mother was in the house at the time of these incidents.  This may have caused the jury to have a reasonable doubt as to the circumstance of aggravation and to acquit the appellant on the charges containing that circumstance.

There was a large number of grounds of appeal.  However the main contentions of counsel for the appellant, in order of their importance, were as follows:

1. That the learned trial Judge did not direct the jury as to the significance of the absence of recent complaint by the complainant.  This was not a ground of appeal, the only relevant ground being that the verdicts were unsafe and unsatisfactory because of the absence of such complaint.  However the question was fully argued without objection and may be accepted as a ground of appeal.

2. There were previous denials by the complainant of any sexual wrongdoing by the appellant.  Although this also appears in the grounds of appeal as a complaint about the safety of the verdicts because of those denials, the arguments focussed on the adequacy of the learned trial Judge's direction in this respect.  Again it is appropriate to treat this ground of appeal as including a complaint about his Honour's directions.

3. Unsatisfactory aspects of the complainant's evidence including inconsistencies in it which should have led the jury to have a reasonable doubt about the appellant's guilt.

The absence of recent complaint

The complainant made no complaint to her mother because, she said, her mother would not have believed her.  Her mother, of course, had a continuing relationship with the appellant and although her mother described her relationship with the complainant as very good the complainant described it as "not a perfect one".

The complainant did not speak to her father about these incidents because she said she did not know his telephone number.  And she specifically denied to her sister and to a Mrs. Witham that there had been any sexual misconduct by the appellant; her reason for this was that she was scared of the appellant.

The complainant was not asked when she first made a complaint to anyone or who that was.  Nor does it appear when the appellant was first charged with these offences.  However it is plain both from the course of cross-examination and from his Honour's reference in his summing up to the address of counsel that, at the trial, the appellant was relying upon her failure to complain to her mother or father and upon her inconsistent denials to her sister and Mrs. Witham as matters which cast doubt on her credibility.  His Honour said in reference to the address of the appellant's counsel:

"It was put to you that B said that she had a good relationship with her daughter and yet her daughter did not complain to her."

He said, with reference to the prosecutor's address:

"He said there was no fresh complaint and the complainant gave you reasons for why she did not make a complaint."

However his Honour, though he reminded them of the submissions of counsel on this issue, did not give the jury any directions on the relevance of the absence of recent complaint.  No application was made for a redirection on this issue.

As the High Court recently recognized in Crofts v. R. (1996) 70 A.L.J.R. 917 the law with respect to recent complaint and the duty of the trial Judge to give directions in respect of it were stated in Kilby v. R. (1973) 129 C.L.R. 460.  In that case the principal question was whether a trial Judge was entitled to instruct a jury in a rape trial that the failure of the complainant to complain at the earliest possible opportunity was evidence of consent to intercourse.  Unsurprisingly the court held that such an instruction was not permissible.  During the course of his judgment, however, Barwick C.J., with whose reasons McTiernan, Stephen and Mason JJ. agreed, said (at 465):

"It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity.  Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given."

His Honour went on to say, in the following paragraph:

"The circumstances of the instant case which I have detailed would, however, in my opinion, be illustrative of an occasion when such an instruction might reasonably be omitted."

The circumstances to which his Honour referred were as follows.  There was a statement signed by the appellant which, if accepted by the jury, corroborated the complainant's evidence of lack of consent.  In that event failure to complain could have no relevance.  If that statement were not accepted by the jury, and the appellant denied its truth and gave an explanation for making it in a statement from the dock in which he said that he had intercourse with the complainant by consent, his Honour thought that the failure to complain could have some but very little significance.  It was either a case of a violent intercourse occurring whilst the complainant was held down by other boys and a hand placed over her mouth to prevent her from screaming; or of consensual intercourse after a short discussion.  His Honour thought that, in those circumstances, there was "little need to instruct the jury at all" as to the effect upon the prosecutrix's credibility of her failure to complain.

In considering whether to direct the jury on the absence of recent complaint to her mother or father the trial Judge was obliged to consider whether that absence, together with the complainant's explanation for it, might adversely affect her credibility or whether, having regard to those explanations, such a direction was unnecessary.  Generally such a direction is necessary but there may be many cases, of which this may have been one, in which the explanations for the absence of complaint may be such that any direction in respect of absence of complaint, including as it must a direction about the explanations, is more likely to favour the prosecution than the defence.

In the present case the appellant's counsel did not seek a redirection from the trial Judge when his Honour, having failed to direct on this question, sought requests for redirections.  It was submitted on the appellant's behalf before this Court that the question of recent complaint was simply overlooked by his Honour and by both counsel.  That submission lacks substance.  Both counsel plainly adverted to the question in the case, counsel for the appellant addressed on it and the learned trial Judge referred, albeit briefly, to the submissions made on the appellant's behalf on that question.  It is much more likely that no redirection was sought because it would have required the learned trial Judge to elaborate on the explanations which the complainant made for her failure to complain including her statement that she was scared of the appellant.  Counsel presumably preferred to leave the matter to the jury on the basis of his own address and the learned trial Judge's brief remarks on this question.  There is no basis for thinking that, in the circumstances of this trial, that was not a good tactical decision.  In any event it should not be concluded, in those circumstances, that the failure to direct on this question caused a miscarriage of justice.  It is not at all surprising that a child, overawed by a parent figure, would not tell anyone about these events for some time after they occurred.

Previous denials by the complainant of sexual wrongdoing by the appellant

In January 1996 the complainant denied to her sister J that the appellant had touched her.  She also told a Mrs. Witham, a friend of her father, that no sexual misconduct by the appellant had occurred.  The ground of appeal complains only that the verdicts were unsafe and unsatisfactory because of evidence of the previous inconsistent statement by the complainant to J.  However the appeal was argued on the basis of both previous statements, the one to J and that to Mrs. Witham, and on the basis of the learned trial Judge's failure to direct the jury properly with respect to these inconsistencies.

It is true that, in his directions, the learned trial Judge did not specifically advert to these inconsistent statements made to J and Mrs. Witham.  However he did direct them as to inconsistencies in her evidence.  He said:

"In this case it was put to the complainant that on an earlier occasion she may have said something different to the evidence that she gave before you.  In particular, it was suggested giving evidence at the committal and in a statement to the police that she may have said something different.  If a witness agrees that she did on an earlier occasion say something which is different to what she first told you here, you may consider her earlier statement and you may use it.  The fact that she has thereby accepted that her evidence has changed may cause you to scrutinize carefully all of her evidence.  You may find such a change alarming, one which causes you to doubt her veracity.  On the other hand, you may think the change in her evidence is merely a demonstration of the ordinary weaknesses of the human mind.  You may conclude perhaps things said closer in point of time to the events described are more likely to be accurate than a description given later."

And a little later in his summing up his Honour said:

"It is a matter for you entirely what significance you give to any conflicts or inconsistencies which you find in her evidence.  If you find that there are inconsistencies and conflicts and they are the type of conflicts and inconsistencies that you would normally expect from a child having to recount events of that nature, then you may give what weight you wish to those consistencies, or do they indicate to you that she is not telling the truth or do they leave you with a reasonable doubt as to whether she is telling the truth.  Now, you must approach her evidence cautiously and, having assessed it, arrive at your verdict."

No doubt it may "in many cases be appropriate to give the jury a warning in specific terms about the matter, if only to prevent them from falling into the error of regarding the previous statement as evidence of the fact which it asserts, capable of consideration by them as part of the evidence at the trial": R. v. Jackson & Anor. [1964] Qd.R. 26 at 40.  Whether a direction as to specific previous inconsistent statements is appropriate in any case depends once again on the circumstances of the case and the manner in which the trial is conducted.  The complainant was asked why, when asked by J and Mrs. Witham whether the accused had ever touched her, she said no.  She replied:  "Because I am scared of [G] and, if I was to say anything, I am scared he would have hurt me."  Counsel for the appellant did not seek any redirections in respect of the directions referred to above or seek any specific directions with respect to the statements made to J or Mrs. Witham.  There is nothing before this Court to indicate what counsel for the appellant said, if anything, about these matters in his address to the jury.

Again a major difficulty in the argument that the learned trial Judge ought to have referred specifically to the statements made by the complainant to J and Mrs. Witham and to their effect on her credibility is the absence of a request for a redirection when none was given on these matters.  It is more likely that the failure to seek a redirection in respect of these matters is attributable to a tactical decision on the part of the appellant's counsel at trial that these were matters best left alone than to any negligent omission on his part.  There was the possibility that, as appears from the passage referred to above from Jackson, without such a direction the jury may have treated the complainant's earlier statements as evidence of the fact that the appellant had not committed any sexual act with the complainant rather than as evidence merely of the complainant's credibility.  It is also possible that, if any such specific direction had been given, the learned trial Judge would have brought to the attention of the jury the complainant's evidence that she was scared of the appellant.  When experienced counsel fails to seek a redirection on a point and that failure is explicable on tactical grounds the Court should be reluctant to conclude that a failure to give such a direction caused a miscarriage of justice.  We could not be satisfied that the appellant would have been better off with such a direction.  Consequently this ground also must fail.

Unsatisfactory aspects of the complainant's evidence

These included evidence which was uncertain and inconsistent, such as whether her mother and sister were home at the time these offences were committed and evidence on which she was contradicted both by the appellant and her mother, such as whether the family parrot was alive when these offences were said to have been committed.  The appellant also sought to draw some comfort from the fact that he was acquitted of the counts involving the circumstance that the child was in his care, submitting that this indicated the jury must have had reasonable doubt about whether the complainant's mother was at home at the time these offences were said to have been committed.  That plainly does not follow from the acquittal on those counts; the jury may have thought that once the appellant had deposited the complainant back at her home, after their shopping expedition, she was no longer in his care whether her mother was home or not.  But even if the jury had reasonable doubt about whether the complainant's mother was home when these offences were said to have been committed, and they may have because the complainant was not certain about this, it by no means follows that they ought to have had reasonable doubt about the commission of the offences.

The matters referred to above and some other factual matters raised which need not be specifically mentioned, were plainly matters for the jury.  None of them either separately or together gives any cause for thinking that the verdict was unsafe.

Nor do any of the matters raised under any of the above headings either separately or together render the verdict unsafe.  Accordingly the appeal should be dismissed.

REASONS FOR JUDGMENT - FITZGERALD P

Judgment delivered 20 June 1997

The circumstances giving rise to this appeal are set out in the joint reasons for judgment of Macrossan C.J. and Davies J.A.

There seem to me to be two associated questions, namely the quality of the complainant’s evidence and whether convictions necessarily based on that evidence were unsafe or unsatisfactory,^[1] and the adequacy of the trial judge’s directions especially in relation to the complainant’s evidence and her behaviour subsequently to the matters which she alleged against the appellant.^[2]  Whether there has been a substantial miscarriage of justice^[3] depends upon a consideration of those points in conjunction.  I have found it necessary to summarise the summing-up, and to record the very limited passages in it which relate to the conflicting evidence between the complainant and the appellant (and on some matters the complainant’s mother).

In illustrating how the jury should “approach the credibility issue”, the trial judge used examples which at least implicitly suggested that “concessions” made by the complainant in cross-examination might have indicated an effort by her “to be frank and honest”.  Shortly after that, his Honour said:

“In this case it was put to the complainant that on an earlier occasion she may have said something different to the evidence that she gave before you.  In particular, it was suggested giving evidence at the committal and in a statement to police that she may have said something different.  If a witness agrees that she did on an earlier occasion say something which is different to what she first told you here, you may consider her earlier statement and you may use it.  The fact that she has thereby accepted that her evidence has changed may cause you to scrutinise carefully all of her evidence.  You may find such a change alarming, one which causes you to doubt her voracity [sic].  On the other hand, you may think the change in her evidence is merely a demonstration of the ordinary weaknesses of the human mind.  You may conclude perhaps things said closer in point of time to the events described are more likely to be accurate than a description given later.”

Regrettably, his Honour did not explain that either alternative, a deliberate change in evidence or an inadvertent alteration due to memory weakness, cast doubt on the reliability of the complainant’s evidence at trial.

His Honour went on to refer to some inconsistencies in the complainant’s testimony between evidence given at the trial and that given earlier to investigating police officers and at committal.  He concluded this aspect of the matter by saying that those were “matters which you may apply relating to what I have said to you in determining whether the change is alarming or whether it is just human nature”, without pointing out that it was of central importance to the prosecution case that the complainant’s evidence at trial be both credible and reliable.  Later, after directing the jury that there was no evidence capable in law of amounting to corroboration of the complainant’s testimony, the trial judge told the jury that it might return a verdict of guilty if “satisfied beyond a reasonable doubt that the complainant is telling the truth, ... if you find her a truthful witness, a reliable witness ...”.

Later again, his Honour referred to the age of the complainant at the time of the alleged offences.  After pointing out that she was then 17 and had been 14 at the time when the first offence was alleged to have occurred, his Honour continued:

“She was, in effect, recounting events when she was very young.  Now, when you come to consider her evidence, remember that she is at law still a child, because one is not an adult until 18 under the law.  Now, a child not is [sic] a small adult.  A child thinks like a child and sometimes speaks like a child.  You cannot expect adult standards from children and we all, in the past, have had experience with brothers or sisters or our own children or relations and you apply that experience and your commonsense in assessing her evidence.  It is a matter for you entirely what significance you give to any conflicts or inconsistencies which you find in her evidence.  If you find that there are inconsistencies and conflicts and they are the type of conflicts and inconsistencies that you would normally expect from a child having to recount events of this nature, then you may give what weight you wish to those consistencies [sic], or do they indicate to you that she is not telling the truth or do they leave you with a reasonable doubt as to whether she is telling the truth.  Now, you must approach her evidence cautiously and, having assessed it, arrive at your verdict.

Now, there is one other matter which I will touch upon and it is relevant to the matters to which I have just made reference.  If you disbelieve the complainant’s general evidence and if you thought that that damaged her credit, you can take that into account in considering the specific allegations ... .  The fact that the complainant’s credit was impaired might disincline you to accept the specific allegations.  If you disbelieved or doubted what the complainant said about the specific allegations ... that may tend to weaken or destroy her generalised evidence or her evidence about the other specific acts.  You probably have understood what approach you can adopt in this matter and, by those references to the various tests which you have to apply in assessing the witness’s credibility in cases of this nature, taking into account the fact that she is, in fact, a child ... .”

If the general tenor of the trial judge’s remarks favouring the credibility of the complainant be put to one side together with his initial reference to the jury’s disbelief of “the complainant’s general evidence” (which was corrected by the later reference to disbelief or doubt), the passage last quoted is plainly confused.  It was meaningless to talk about weakening or destroying the complainant’s “generalised evidence or her evidence about the other specific acts” once the jury had “disbelieved or doubted what the complainant said about the specific allegations”; at that point, verdicts of not guilty had to be returned.

The court was then adjourned for the day and initially resumed on the next day in the absence of the jury.  The appellant’s counsel requested a redirection to elaborate upon the comment which his Honour had made to the jury concerning a “concession by the complainant ... to the effect that she agreed, ... that the accused was affectionate towards her”.  The request was denied.

The summing-up then continued with a summary of the submissions of the prosecutor and defence counsel.  His Honour pointed out that defence counsel had “put” to the jury that the complainant’s mother had said that “she had a good relationship with her daughter and yet her daughter did not complain to her” while the prosecutor had given unspecified “reasons for why [the complainant] did not make a complaint” following the misconduct alleged against the appellant.

Then followed a surprisingly brief reference to the individual counts in the indictment, of which there were three, on one of which the appellant was acquitted.  Dealing first with count one, the trial judge read out a passage of the complainant’s evidence and said:

“That is count 1.  I just remind you of the basic facts and ask you to take into account any of the inconsistencies that [defence counsel] referred you to.”

His Honour then proceeded immediately to count two and, apart from again reading a passage of the complainant’s evidence, said nothing of present relevance.  Count three was dealt with in similar manner.  The summing-up then proceeded:

“Members of the jury, I remind you that the complainant was cross-examined and counsel had referred you to the discrepancies of their [sic] evidence and, of course, you have to consider all the of the [sic] evidence in determining whether you find the accused guilty or not guilty of these offences.”

Counsel for the defence asked his Honour to remind the jury of some of the defence evidence, having read to them passages from the evidence of the complainant in respect of each count.  When his Honour was obviously disinclined to do so, counsel for the appellant submitted that “as a matter of fairness, the defence case warrants the same attention”.  When the judge was still opposed to such a course, defence counsel asked that, at the very least, the jury be reminded that the complainant’s mother’s evidence provided a substantial answer to counts two and three “even if one wasn‘t to resort to the transcript”.

It is necessary, I think, to set out the remaining exchanges:

“MR CLARK: All I am asking you to put in broad outline is the main positive aspects of the defence case, as you have just done with the Crown case, particularly on that issue in respect of counts 2 and 3.

HIS HONOUR: Yes.  Just as I didn’t go through all the discrepancies on the Crown case of the accused’s evidence, of [the complainant’s mother], so too I didn’t go through all the discrepancies of your case, but I was careful to point out to them that, having read that evidence, that there were discrepancies that you referred to in your address which they should have regard to.

MR CLARK: Yes.

HIS HONOUR: Whether you want me to take the next step of actually reading it out and spelling it is probably - I can understand your submission, but I am not disposed to do it, having given that warning to them.

MR CLARK: All I would ask then, Your Honour, perhaps is that you remind the jury of the evidence of mother in respect of counts 2 and 3, that she was at home at the time.

HIS HONOUR: But that’s what I am just saying.  I am not prepared to do that, having referred them to the inconsistencies in the evidence which you took them to yesterday.

MR CLARK: Very well, Your Honour.

HIS HONOUR: I am not required to go through all of them except to point out that you referred to inconsistencies in the evidence as such and the basic tenet of each of the cases.  If I failed to refer to that there were inconsistencies, then I can understand why I would do it, but, if you are going to want me to refer to your inconsistencies as such, then perhaps I should refer them to the inconsistencies in the Crown case as put between your client and [the complainant’s mother] because, if you start talking about inconsistencies, for example, [the complainant’s mother] rather - said that your client was only there perhaps one or two nights or he was there for three nights but the business about the horseplay, which is part of the transcript which you read, is an obvious inconsistency in there in relation to it but how far does a trial Judge have to go.

MR CLARK: I am not asking you to go to that length.  All I am merely asking you is to remind the jury today, the second day of the summing-up, of an important aspect of the defence case, namely the evidence of the mother to the effect that she would have been present in the house at the time of counts 2 and 3 are alleged to have occurred.”

The trial judge next asked the prosecutor for his submission and was told that no further redirection was required.  His Honour then effectively rejected the request for redirections by asking the appellant’s counsel whether he was “ready to proceed on the sentence”.

During argument in this Court, I was inclined to the view that, for reasons similar to those referred to by Macrossan C.J. and Davies J.A. in their joint judgment, the appellant’s trial counsel did not seek redirections for tactical reasons.  A reading of the full summing-up and the trial judge’s response to those applications for redirections which were made has convinced me otherwise.  I do not think that, in the circumstances, the consequences of what I consider was a seriously inadequate summing-up can, or should, be avoided on that basis.  On the contrary, I consider that the correct conclusion is that the summing-up deprived the appellant of a chance of acquittal which was fairly open to him.  However, I do not think that the complainant’s evidence was so poor that a reasonable jury, properly instructed, could not rationally convict.

I would therefore allow the appeal, quash the convictions and order a retrial.