The Queen v P[1997] QCA 318

COURT OF APPEAL

MACROSSAN CJ

DAVIES JA

BYRNE J

CA No 170 of 1997 

THE QUEEN 

v. 

PAppellant

BRISBANE 

DATE 21/07/97 

JUDGMENT

DAVIES JA:  The appellant was convicted in the District Court at Rockhampton on 4 April last on two counts of wilfully exposing children to an indecent book or indecent pictures, two counts of wilfully exposing the children to an indecent act and two counts of indecently dealing with the children.  The appellant appeals against his conviction and also seeks leave to appeal against his sentence which was one of 18 months imprisonment.  However Mr Rafter, who appeared for him before this Court, indicated that the application for leave to appeal against sentence was not pursued and for that reason, in my view, it should be refused.

The offences occurred in late June or early July 1996.  The children, O and R, were both 12 years of age at the time.  They were in Grade 7 at school and friends of F the daughter of the appellant's de facto wife who was also the same age and in their class.

Some months prior to the commission of the offences the appellant and his de facto wife had separated and F and her younger sister continued to live with the appellant.  The night in question was the last weekend of the school holidays.  The two girls stayed at the appellant's home as they were all going horse riding the next day.  When the two girls and F were having a bath together the girls said they saw the appellant peeping at them through a window.  They said he then came into the bathroom and started talking about sex.  These incidents were denied by F and the appellant both of whom gave evidence.

The three girls then went to a waterbed in the main bedroom.

Shortly afterwards O said she saw the appellant walking on the verandah without any clothes on.  He later came into the bedroom.  O said he sat on the edge of the bed and started talking about his penis.  He then got some pornographic magazines, one of which was later identified by her as a Penthouse Black Label magazine, and showed them to the girls.  He then started "pulling himself" and that "white stuff started coming out".  According to O he left the room but later came back.  He then got into bed between these two girls.  He touched O on the leg near her vagina though on the outside of her shorts.  He then put his penis on R's face.  He also asked the girls to show him their private parts, which they did, and O said that the appellant touched R "on the boob".

R said that the appellant hopped into bed and she saw him put his hand near O's vagina.  He then obtained the magazines and showed them to the girls and pointed out things.  He then started "playing with his penis and explaining, `This is how you wank'".  R then saw "white stuff dribble out".  He then pulled down R's shorts and then tried to pull O's down.  He then asked the girls to show their "pubics and breasts", which they did.  When the girls lifted up their tops the appellant reached and squeezed their breasts.  The appellant left the room but later R felt something wet across her face.  She then saw the appellant leaning over with his penis where her head was.

The appellant denied ever coming into the bedroom.  F, who had earlier told a police officer that she did not know what had happened because she was asleep gave evidence that she was a light sleeper and in effect that if any of these events had occurred she would have woken up.

The first ground of appeal is that the verdicts were perverse and against the weight of evidence.  That ground was not pursued by Mr Rafter, it being conceded that it was open to the jury to accept the evidence of the complainants and reject that of the appellant and F.

The main contentions for the appellant before this Court relied on grounds 2, 3 and 4 which related to the trial Judge's permitting the Crown Prosecutor to cross-examine the appellant on a previous conviction.  The appellant had been convicted in the District Court at Brisbane on 9 September 1977 of indecent dealing with a girl under 14 years for which he had been sentenced to two years imprisonment.  Section 15(2)(c) of the Evidence Act 1977 provides that where in a criminal proceeding a person charged gives evidence he shall not be asked any question tending to show that he has committed or been convicted of any other offence unless:

"(c)the person has personally or by counsel asked questions of any witness with a view to establishing the person's own good character, or has given evidence of the person's good character, or the nature or the conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding;"

Subsection (3) requires the permission of the Court to be obtained before any such question of the kind mentioned in paragraph (c) is asked.  In this case the Crown Prosecutor sought and obtained the permission of the Court over the objection of the appellant's counsel to ask the appellant whether he had been convicted of that offence.

The learned trial Judge said that he was satisfied that both of the alternative conditions stated in paragraph (c) were satisfied.  That is, that the appellant had given evidence of his good character and that the nature of the defence was such as to involve imputations on the character of the two complainants.  He then exercised his discretion in favour of allowing the question limiting it to the fact of the past conviction and not allowing reference to be made to the facts of the past conviction, those facts having such similarity in detail as to increase their prejudicial effect of the question and answer.  Without that detail His Honour was satisfied that he could give directions to the jury that would substantially eliminate any prejudice to the accused.  He exercised discretions in part because unless the question were allowed the appellant would obtain an unfair advantage by laying a claim to past good character.

I have no doubt that the first of the conditions required by section 15(2)(c) were satisfied.  In a series of answers to questions by the Crown Prosecutor the appellant gave evidence of his good character.  These were specifically pointed to during the course of the appeal and are set out at length in the learned trial Judge's reasons for his ruling.  Accordingly, it is sufficient to summarise their effect here.

He repeatedly answered questions directed to whether or not he did specific things by reference to his general conduct.  For example, when asked whether he talked to the girls about matters of a sexual nature he said that his mother always taught him not to swear, not to smoke, not to drink and not to tell lies and implied that he had never done any of those things.  He described suggestions that he had spoken about such matters as the most ludicrous thing that had ever been said because he had never been known to speak like that in his whole life.  He described a similar suggestion as utterly inconceivable because he just did not talk like that.  On another occasion he said it was impossible for him to talk like that.  Finally, when it was put to him that he asked the girls to show him their breast area and their pubic area, and they did, he said in effect that it was inconceivable because he did not talk or act like that, that he had never been known to talk or act like that.

It was conceded in this Court that the alternative condition had been satisfied because it was in effect put to the complainants that they had conspired together to make a false complaint against the appellant, that they had victimised F both by physical assault and spreading lies about the appellant and that the motive for their false evidence lay in their unwillingness to admit to having lied about the appellant.

The only question then was whether the learned trial Judge erred in the exercise of his discretion to allow the question.  Undoubtedly, it was prejudicial to the appellant but so of course is any evidence which points to his guilt or discredits him.  That is not a sufficient reason for excluding the evidence.  As the High Court pointed out in Phillips v. The Queen (1985) 159 CLR 45 at 58, the sole criterion governing the exercise of this discretion is what fairness requires in the circumstances of the case.  And as this Court pointed out in The Queen v. Chinmaya [1995] 1 Qd R 542 at 544 the competing considerations involve, on the one hand the needs of protecting an accused person and, on the other of preventing abuse of an immunity by the general prohibition.  In my opinion those competing considerations did not require the learned trial Judge in the exercise of his discretion in this case to disallow the question.  It was not submitted that any specific error occurred in the exercise of that discretion.  The learned trial Judge was entitled to conclude that unless the question was allowed the appellant would have secured an unfair advantage of a claim of good character and His Honour was entitled to conclude that in limiting the question in the way in which he did and in carefully explaining to the jury the limited use to which it and the answer to it could be put he could eliminate the risk that that question and answer would be used unfairly against the appellant.  No criticism was made in this Court of His Honour's summing-up in this respect.

In those circumstances these grounds of appeal must, in my view, fail.

The final contention of the appellant was based on ground 5 which asserted that the learned trial Judge erred in law in not allowing the appellant to fully answer a question in that he was not permitted to complete an answer to a question which suggested that he "masturbated to ejaculation".  The sequence of events appears to be as follows.

The suggestion referred to was made to the appellant in cross-examination and he responded that this was "utterly impossible".  He appears to have wanted to add to his answer but the learned trial Judge refused to allow him to elaborate saying that his own barrister when he re-examined might give him the opportunity to say whatever he wanted him to say.  When the time came for re-examination the appellant's counsel did not ask any further questions about this.

The appellant's point is that he contended that he was impotent and therefore that he would not have been capable of masturbating to ejaculation.  However, it appears at least possible that the reason why his counsel did not pursue the matter in re-examination was that the appellant's de facto wife who had given evidence generally favourable to the appellant had said that they had had a sexual relationship and this evidence had not been challenged by the appellant's counsel.  In any event, it appears to have been a tactical decision by the appellant's counsel not to pursue the question of impotence with the appellant.  That much appears to be conceded by the appellant's counsel in this Court and it must be said that having regard to that concession the contention wasn't vigorously pursued.  In my opinion, it must fail.

The appeal should therefore in my opinion be dismissed.

THE CHIEF JUSTICE:  I agree.

BYRNE J:  I agree and wish only to add a few words.  It was not suggested that the Judge, who gave comprehensive reasons for his decision to permit cross-examination to prove the prior conviction, ignored material considerations or took into account irrelevant factors.  The case is therefore one in which the complaint is in essence that the discretion miscarried because the Judge failed to accord sufficient weight to the extent of the likely prejudice to the accused resulting from disclosure of the old child sex offence.

Such evidence has, as the Judge's reasons disclose he recognised, an appreciable potential for prejudice in a case such as the present.

Especially in cases involving allegations of sexual misconduct against children, considerable caution is necessarily called for before evidence of convictions for similar offences is allowed before a jury.  However, by his fulsome self-praise, the applicant sought to secure a special advantage of the nature described by Justice Davies.

In the circumstances of the case, it was open to the Judge to conclude that fairness required that the evidence of the conviction be received despite its considerable potential for undue prejudice.

THE CHIEF JUSTICE:  The order of the Court then is that the appeal is dismissed.

MR RUTLEDGE:  I think there is also a sentence application, is there, that I know you are not pursuing.

MR RAFTER:  That could formally be dismissed, too.

THE CHIEF JUSTICE:  All right.  We will formally dismiss the application for leave to appeal against sentence.