R v A[1997] QCA 237

[1997] QCA 237

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 158 of 1997

Brisbane

[R. v. A]

THE QUEEN

v.

A

(Applicant) Appellant

McPherson JA

Williams J

Byrne J

Judgment delivered 8 August 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 August 1997

The appellant, A, was convicted in the District Court at Ipswich on 10 April 1997 of three counts of rape, one count of assault with intent to commit rape, and one count of indecent dealing.  In each case the complainant was the appellant's stepdaughter, J, who was born on 15 January 1973.  The first count on the indictment, that of rape, was alleged to have occurred in 1983 whilst the parties were residing at Redcliffe; the complainant was then aged ten.  The other four counts on the indictment were alleged to have occurred between 1 January 1987 and 31 December 1988 whilst the parties were living at Bundamba; at that time the complainant would have been aged about fourteen.  A sentence of 10 years' imprisonment was imposed with respect to each of the rape counts, and 3 years' imprisonment with respect to the other two charges; all sentences were to be served concurrently.  The appellant appeals against conviction, and seeks leave to appeal against sentence.

At trial the appellant was represented by counsel, but he conducted the appeal on his own behalf.  The formal grounds of appeal were obviously drawn by a lawyer, but they were supplemented by other written material put together by the appellant himself.

At the outset of the trial counsel for the appellant applied for a permanent stay of the indictment.  The submission was that proceedings on the indictment would be oppressive and an abuse of process for a number of reasons.  Central to the submission was the contention that about ten years prior to trial (the appellant on the hearing of the appeal put it in 1988-9) the complainant girl, her mother, and the appellant found themselves at the Ipswich police station because of some suggestion that the complainant had been sexually molested by the appellant.  At the committal (and again at trial) the complainant said she had no recollection of such an event.  A statement made by police officers who interrogated the appellant in October 1996 indicated that any record of the interview in about 1988 had been destroyed.  The complainant's mother, in her statement, recalled the visit to the police and said that at that time J "denied that anything had happened."  Her actual evidence at the trial was to similar effect; she said that her daughter was upset and said "I don't want to do this" and "nothing happened".

The defence application for a stay was based on the propositions that the appellant could not have a fair trial because he had been prejudiced by the delay between that first visit to the police station and his being charged in 1996, and that the complainant could not be adequately cross-examined because of the absence of any formal record of what was said to the police in about 1988.

The learned trial judge refused to grant a stay and the first ground of appeal is that he erred in so ruling.  It was contended that the complainant's denial that anything of relevance had occurred could not be satisfactorily explored given the delay and the absence of any record thereof.  The learned trial judge referred to the fact that, at least through cross-examination of the mother, evidence of what the complainant said on that earlier occasion could be placed before the jury.  He said in his initial ruling that would be powerful evidence of a prior inconsistent statement.  He also referred to the fact that it was relevant to note that in 1988 the parties were still living under the same roof.

Defence counsel did elicit from the complainant's mother under cross-examination that there had been a visit to the police station in about 1988, and that on that occasion the complainant had told the police that "nothing happened".  It is difficult to see how the defence case could have been strengthened by access to some police record formally noting that that was the position.  During cross-examination of the complainant various possible explanations for her later making a false complaint were canvassed, and all those matters were clearly before the jury.

The events giving rise to the charges did occur quite some time before trial but that is a not uncommon feature of cases of this type.  The court must perform a balancing exercise which in the end will be decided by determining whether the delay is such as to deprive the accused person of a fair trial.  We are not persuaded that in all the circumstances of this case the delay had that effect.  The events of 1988 were relevant and were properly placed before the jury for their consideration.

There is no substance in the first ground of appeal.

Before the prosecution opened its case counsel for the appellant raised with the learned trial judge the question whether he could cross-examine the complainant as to her knowledge of complaints made by her friend H against her (H’s) father.  It was argued that knowledge of such matters by the complainant showed knowledge of how a false complaint could get someone into trouble.  If that line of cross-examination was allowed the prosecution desired to bring out that H had also made allegations of sexual misconduct against this appellant; there was even some suggestion that the complainant in this case may have witnessed some of the alleged sexual misbehaviour involving the appellant and H.  Apparently the prosecutor wished to rebut any suggestion that knowledge of the H matter meant the complainant had knowledge of how allegations of sexual abuse could be used as a tool to punish an adult, by eliciting in re‑examination this complainant's knowledge of H’s allegations (and perhaps their basis) against this appellant.  (The appellant informed this court during the hearing of the appeal that subsequent to the trial with which this court is now concerned he was acquitted of the charges involving H.)  The learned trial judge expressed the tentative view that the line of cross-examination proposed was not sufficiently relevant to the trial before him to be admissible but he also intimated that if the cross-examination was allowed then the Crown would be entitled to take the matter further as suggested by the prosecutor.

It is important to note that there was no specific ruling by the learned trial judge on any particular question either in cross-examination or re-examination.  As a result of what was said by the learned trial judge when the matter was raised before the Crown opening, the issue was not taken up in cross-examination of the complainant.  The appellant contends that there was an erroneous ruling by the learned trial judge which resulted in an unfair trial.  That proposition cannot be made out.  The proposed line of cross-examination could, at best, have been relevant to the complainant's credit and, depending on the answers, there may have been a basis for the Crown asking questions in re-examination along the lines foreshadowed.  Given all the circumstances of the case opening the issue of allegations made against various people by H would not have assisted the jury in their deliberations.

There is no substance in the second ground of appeal.

The third ground of appeal alleges that the learned trial judge erred in failing to correct in his summing up matters which were raised during the closing address of the Crown prosecutor.  The record does not contain counsel's addresses and in consequence it is not possible to arrive at any concluded decision on this question.  The record does disclose that counsel for the appellant asked the learned trial judge to deal in his summing up with some matters canvassed by the prosecutor in his address but the learned trial judge declined to do so.  So far as those submissions reveal none of the matters was so serious as to require specific attention in the summing up.  It must be remembered that further reference to a particular matter often tends to raise its importance in the minds of the jury.

In the written material the appellant placed before this court it is asserted that witnesses were available for the defence but were not called by counsel.  Attached to the material are statutory declarations from Robinson, Goebel, M Parkinson, and C Parkinson.  Each of them is dated prior to the date of trial and they would have been in the possession of the appellant's legal representatives at that time.  The contents of those declarations would indicate that the proposed evidence was collateral to the main issues for determination by the jury.  At best most, if not all, of the evidence was relevant only to the complainant's credibility.  Many of the issues raised therein, such as reasons allegedly given by the complainant for making a false allegation against her stepfather, were put to the complainant in cross-examination and denied.

Some passages in those statements may also have established minor inconsistencies with respect to evidence given by the complainant.  But many such inconsistencies were already highlighted during cross-examination and referred to at length in the addresses and in the summing up.  But again none of the inconsistencies was with respect to a critical issue.  For example, with respect to the first count of rape which occurred almost 15 years before trial when the complainant was aged ten, there were inconsistencies in her evidence as to whether she was in her bedroom, the lounge or kitchen when called by the appellant into the bathroom; there were further inconsistencies in her evidence as to the time when she disposed of her underpants in the bin after that incident.  There were many other inconsistencies of the same type throughout her evidence.

The learned trial judge in his summing up dealt at some length with those inconsistencies and with the arguments with respect thereto raised by defence counsel.  Given the nature of the inconsistencies, and the age of the complainant girl at the time the incidents occurred, there was, in our view, nothing about them which necessitated the jury having a doubt about the accuracy of the complainant girl's evidence on critical issues.  The significance of the inconsistencies was a matter for the jury.

That really leads to the final ground on which the convictions were challenged, namely that the verdicts were unsafe and unsatisfactory.

For the reasons just articulated we are of the view that the inconsistencies in the evidence of the complainant girl were not such as to lead to the conclusion that the verdicts were unsafe and unsatisfactory.

Count one on the indictment was uncorroborated, and the jury was given a full and proper direction in relation to that.

The learned trial judge told the jury that there was evidence capable of corroborating count three (rape) and it was correctly pointed out to them that if accepted it could be used with respect to counts two, four and five.  All of those incidents were alleged to have occurred when the complainant's mother was working night shift.  With respect to count three the complainant gave evidence that the appellant climbed into her bed at night wearing only his underpants and proceeded to have intercourse with her.  During those events she called out "fuck off" on a number of occasions and her brother D (who was 18 months younger than the complainant) heard her calling out in that way.  His evidence was that on hearing that he left his bed and went to the door of the complainant's bedroom.  He saw the appellant "getting out from under the blankets in my sister's room" whilst his sister was still in the bed.  He noted that the appellant was only wearing underpants.  The appellant said to D "that he was tucking her in".

If accepted by the jury, that was clear evidence capable of supporting count three.  The learned trial judge was also correct in directing the jury that if accepted such evidence tended to show an unnatural relationship existing between the appellant and the complainant and in consequence it was relevant evidence with respect to counts two, four and five.

The learned trial judge did not refer to any other evidence given by D as capable as constituting corroboration.  But D did also give important evidence relevant to the charge of assault within intent to rape.  The complainant's evidence with respect to this count was that she was in bed asleep when she was awakened by the feel of something under her throat.  The appellant was beside the bed holding a wooden-handled steak knife against her throat.  He said words to the effect "shut up or he will cut me".  The complainant said that she really had to go to the toilet and ran from her bedroom.  She went to D’s bedroom and told him what had happened.  D then ran straight up the hallway to the lounge room.  The appellant was sitting on a couch dressed only in his underpants; there was a knife on the floor beside him.  D said:  "It stood out because it was strange for it to be there and after what she said to me ... It was a kitchen knife, like, with a brown handle and it was fairly long."  The complainant spent the rest of that night in D’s bedroom.

As it was not argued that D’s evidence with respect to that incident amounted to corroboration of a charge of attempted rape, it is sufficient to note that the evidence strongly supports and confirms the evidence given by the complainant.  The jury could well be satisfied of what D saw on that night and find in that support for the complainant's evidence.

Similarly, D gave evidence which the jury could have regarded as confirming to some extent the complainant's evidence with respect to the indecent dealing count.  The complainant's evidence was that early one morning the appellant asked D to go to the shop to get the paper.  After D had left the appellant entered the complainant's bedroom and asked her to perform oral sex on him.  According to her the appellant held her face down with his hands and put his penis into her mouth for a short time.  She eventually broke free and went to the shower and locked herself in there until D arrived home.  D gave evidence of an incident one morning when he was asked by the appellant to go to the shop for the morning paper and returned home to find his sister, the complainant, crying in the shower - she was really upset.  Again, whilst it was not argued that such evidence amounted to corroboration of the charge, the jury may well have regarded it as supporting the complainant's evidence.

As already noted the learned trial judge dealt in his summing up with the inconsistencies in the complainant's evidence in some detail, and in our view that matter was adequately dealt with.  The learned trial judge also dealt with the aspect of delay and told the jury that "the longer it takes for a matter to come to court, the more likely people's memories are to fade and the more difficulties confront an accused person in defending himself or herself."  Then he dealt at some length with the evidence that the complainant had told police in about 1988 that nothing untoward had occurred.  In the circumstances it is desirable to set out the relevant passage from the summing up in full:

"You are entitled to have regard to the mother's evidence of what occurred at the Ipswich police station, you might think, some time in 1988.  You have already heard a great deal said about this incident.  J says she cannot remember it.  The mother says, and it is not disputed in any way, that as a result of some complaint, not to her but some complaint, she and the accused and J went to the police station.  The mother's evidence was that J at the police station said she did not want to go through with it.  That she was upset, visibly upset and then when she spoke to the police officer she said nothing happened at the time.  Again, if you accept the evidence of the mother, J was 15 and that there was a distant or bad relationship between the mother and the daughter.  You might also accept on the evidence that J was still living under the same roof as the accused and her mother.  Those factors may assist you in dealing with that particular incident.

The defence says to you that is powerful testimony that will impact on your assessment of her reliability.  The defence says the obvious conclusion should be drawn at the reason she said nothing happened is that nothing did happen.  That is what the defence says.  They say nothing did happen.  Submissions have been put you, and it is a matter for your assessment of the evidence as to what you make of that incident.  As I say, you have seen her and you have heard her cross-examined.  You heard her cross-examined about wagging school and shoplifting and, indeed, you heard D asked about the trouble he had with the police about stealing cars, all of which incidents both accepted candidly.  You may conclude that for whatever reason, based on that evidence, and it is a matter entirely for you, that both of these people were very troubled children in 1988 for whatever reason.  Does that cause you to have a reasonable doubt about J’s evidence now, today, or does it tend to explain her conduct at the time?  As I say, those are matters entirely for you."

In our view the visit to the police in 1988 was dealt with adequately in the summing up.  One can readily see that there was a basis upon which the jury could disregard the statement made to the police in 1988 that nothing had happened.

A review of the evidence, the summing up, and the submissions made on the hearing of the appeal does not given rise in our minds to any sound basis for concluding that the jury's verdict was unsafe and unsatisfactory.  The whole case was very much a jury question.  Though it was vigorously put to the complainant that the conduct complained of had not occurred, there was at the end of the day no evidence to that effect.  The fact that the complainant's evidence was not contradicted by evidence from the accused cannot be ignored when one is considering whether the verdict is unsafe and unsatisfactory.

The appellant also sought leave to appeal against the sentences imposed on him.  He does have a criminal history but there are no convictions for like offences.  In general it could not be said that his record was a bad one.

The charges on which he was convicted were particularly serious.  The first rape occurred when the complainant was ten, and all the other offences when she was aged about fourteen.  He was in a position of trust being the complainant's stepfather.  In all the circumstances we are of the view that the sentences imposed were well within the range and we are not satisfied that any of the specific sentences was manifestly excessive.

The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.