The Queen v A[1997] QCA 291

COURT OF APPEAL

McPHERSON JA

MOYNIHAN J

de JERSEY J

CA No 153 of 1997

THE QUEEN

v.

A Appellant

BRISBANE

DATE 03/06/97

JUDGMENT

de JERSEY J:  The appellant was convicted of indecently dealing with his stepdaughter, a child under 12 years of age and in his care.  He appeals on the ground that the conviction is unsafe.

He was charged with two other offences of indecent dealing but the Crown withdrew those when the trial Judge indicated that because of inconsistencies in accounts, he would regard convictions on those counts as unsafe.

This morning we have been addressed by the appellant in person.  He raised a number of points orally.  He emphasised particular features of the case such as the complainant's failure to complain to her mother who lived with the appellant and her natural father.  He criticised evidence from a detective as to the capacity of the detective who inspected the house where the events occurred, to have seen what he claimed.  He challenged the quality of the evidence of the complainant's brother, which was left to the jury as potentially corroborative.  He mentioned the complainant's attitude to preparedness to give evidence in his presence without a screen and so on.

Those are really in the end matters of detail and could not either alone or together amount to reason to challenge the conviction.  When I read this case in detail out of Court, I had thought that the only arguable point in it was the point ventilated in cases like T, Court of Appeal 204 of 1996, Broadwater, 405 of '96 and S, 499 of 1996 [1997] QCA 291, that is that the complainant's evidence as it emerged from both the section 93A statement and the oral presentation in the Court room was so plagued with inconsistency as to render the conviction based upon it unsafe.

Having been assisted by Mrs Clare's submissions on that point, and having myself read the complainant's evidence and the summing up, I was not satisfied that the conviction was in peril on that ground.  I would have been inclined to make the same observations as were made by Mr Justice Davies in S at page 5 of his reasons.

So that I was not persuaded, either in my preparation of this case before the hearing or from what I heard this morning, that there was any ground for overturning the conviction on the basis set out in the notice of appeal.  However Mrs Clare has quite properly drawn our attention to a passage in the summing up which raises the issue dealt with by this Court in The Queen against E, No 13 of 1997 [1997] QCA 099, a hitherto unreported judgment delivered on 2 May 1997.

In the summing up the learned Judge said:

"The Crown counsel in effect asked you why would she put herself through all this.  Is it all true?  Why would she deliberately make all this up against her own stepfather with whom she got on okay except for this allegation?"

And then later, the point recurred in this way:

"In very short compass, counsel has submitted you had the very good opportunity of seeing the complainant, of assessing her, of the difficult situation that she was in, that she appeared a somewhat nervous type of person to you, in effect saying 'Why put herself through all this?  Why put herself in relation to this to a person with whom she got on okay except for this?'"

In E, the Court was concerned with a passage in a summing up by the same Judge as presided in the current case, which is in materially similar terms.  The doubtful passage under consideration in E read as follows:

"Crown counsel asked why would the complainant put herself through this knowing what she would be put through, particularly after the Magistrates Court hearing.  Why would she come to this Court for an unpleasant experience in relation to her own uncle?  If her own uncle did not do this and she got on quite well with him otherwise, why did she put herself through this and continue to put herself through this?"

The joint judgment of Mr Justice McPherson and Mr Justice Mackenzie, in which Mr Justice Davies agreed, contained these observations:

"The fundamental vice inherent in the directions opted in those cases and in this is that particularly where the task of assessing credibility is not necessarily an easy task, it presents the jury with a facile method of reaching a verdict, but one that is fraught with the risk of serious injustice to the accused.  In substance it constitutes an invitation to the jury to conclude that the allegations would not have been made if they were not true.  In a criminal case such reasoning has a real potential to reverse the onus of proof and to do so in a way that is open to much the same objection as a direction that the credibility of an accused person is to be assessed according to his obvious interest in the outcome of the proceedings against him.  See Robinson and The Queen (1991) 180 Commonwealth Law Reports 531 which in R v. Gee (1994) 1 Queensland Reports 540 at 545 Pincus JA referred to as affording a possible analogy with a direction of this kind."

Mrs Clare has properly conceded that there is no reason for distinguishing the passages of the summing up in this case from the passage in the summing up referred to in the judgment of E.  She has offered no reason why the same result should therefore not follow in this case as follows in E.

In my opinion, it does follow that this appeal must be allowed on this particular ground albeit not one adverted to by the appellant in his notice of appeal.  The appeal should be allowed, the conviction and verdict should be set aside and a new trial ordered.

McPHERSON JA:  Yes, I agree.  Mrs Clare has very properly drawn our attention to a part of the summing up which on the authority of previous decisions of this Court is fatal to the conviction.  The appeal ought to be allowed and the conviction set aside and I agree that there should be a new trial.

Before I ask Justice Moynihan for his views, Mrs Clare, would you start thinking about the question of bail?

MOYNIHAN J:  Yes.  I agree with the order proposed for the reasons given.

McPHERSON JA:  The order will be as I have stated it, that is to say the appeal against conviction is allowed.  The conviction is set aside; there will be an order for a new trial.

Now maybe I will ask the applicant - were you on bail before the trial?

APPLICANT:  Yes, Your Honour.

McPHERSON JA:  You were.  Are you content to accept that statement -----

MRS CLARE:  Yes, it seems that he was, from the record, that he was on bail.

McPHERSON JA:  Yes.  Well I would be inclined to suggest, Mrs Clare, subject to what you may say, that the appellant should be granted bail on the same terms and conditions as prevailed before he surrendered himself for trial.

MRS CLARE:  Yes, I have no submission to make on that, thank you.

McPHERSON JA:  The appellant will be granted bail on the same terms and conditions as prevailed before he surrendered himself for trial, subject of course to any further order that another Court might make.