R v S[1998] QCA 271

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.87 of 1998

Brisbane

[R v. S]

THE QUEEN

v.

S

(Applicant)  Appellant

McMurdo P

Mackenzie J

Helman J

Judgment delivered 8 September 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 8 September 1998

1. I concur in the orders proposed by Mackenzie J. and agree with his Honour’s reasons.

REASONS FOR JUDGMENT -MACKENZIE J.

Judgment delivered 8 September 1998

1. The appellant appeals against convictions of two counts of indecent treatment of a girl under 12 years with a circumstance of aggravation, one count of incest and one count of attempted unlawful anal intercourse with circumstances of aggravation.  He was found not guilty of the substantive offence of unlawful anal intercourse with circumstances of aggravation. 

2. Each of the offences was alleged to have been committed on a date unknown between 19 November 1994 and 8 March 1995 which was the whole period when the family was residing at  Grasstree Beach.  The accused and his wife separated in March 1995 and did not subsequently cohabit.  The complainant was 7 years of age during the period of the alleged offences. 

3. At the commencement of the trial the Crown particularized count 1 as a touching of the vagina with three fingers pressing down in a way which the Crown Prosecutor said the girl would demonstrate.  It was implicit in the exchange between the trial judge and counsel that while the girl alleged that there were frequent other occasions when the accused had treated her indecently by touching her private parts, the occasion alleged in count 1 was the only time when this particular action was performed.  The Crown also particularized it as the first occasion upon which any indecent treatment of any kind had ever occurred. 

4. Counts 2, 3 and 4 were all alleged to have been committed within a short space of time on one night.  Count 2 was particularized as the appellant getting the complainant to put her hand on his penis.  The offences of incest and unlawful anal intercourse were committed shortly afterwards.  The acts in counts 2 to 4 were particularized as the only acts of those kinds alleged by the complainant. 

5. Leave was granted to amend the appellant’s grounds of appeal against conviction.  The grounds argued were that a miscarriage of justice had occurred because the lack of particularity in counts 1, 2, 3 and 4 embarrassed the applicant in putting his defence.  It was also argued that a miscarriage of justice occurred because of the prejudicial effect of the evidence of the complainant of other sexual incidents with which the appellant was not charged, and the fact that the trial judge failed to warn the jury at the point when such evidence was received as to the limited basis upon which it may be considered and that the trial judge failed to warn the jury adequately in his summing-up as to the limited basis upon which such evidence may be considered. 

6. Before dealing with the grounds of appeal it is desirable to summarise the evidence.  The complainant’s evidence-in-chief consisted largely of two records of interview taken from her by the police on 27 June 1997 and 9 November 1997.  In the first record of interview she said that  the appellant had touched her on her private parts with three fingers while she was in her bed.  Her sister, R, who turned 5 during the period alleged in the indictment, slept in the top bunk of double bunks in the same area of the house but, it was alleged, did not observe any of the events.  The allegation was that almost every night the appellant pulled down the complainant’s pants and touched her private parts.  Despite being given the opportunity on the first occasion to speak in detail of the activities of her father she did not mention the events charged in counts 2, 3 and 4 until she was interviewed on the second occasion.  She told the police that the appellant had forced her, under duress, to undress and made her handle his penis.  Then he penetrated her vagina, kissed her, during the course of which he gave her what was described as a hickey or a love bite, and then pushed his penis into her anus.  She gave evidence of discovering “yellowy gooey stuff” on her stomach and nightdress after the event.  During the course of this incident her sister remained asleep. 

7. The complainant’s mother gave evidence that she had seen a hickey on her daughter’s neck at some unspecified time while the family lived at Grasstree Beach.  She was given an explanation by the complainant that her younger sister had inflicted it.  She also noticed at an unspecified time that the complainant was red between the legs and said that she had administered a rash powder to it.  The mother gave evidence that the girl had a history of urinary tract infection and had a history of bed wetting.  She also gave evidence that on a number of occasions she found the girl’s panties rolled up in the bed clothes at the foot of the bed.  She did not observe any stains on the bed linen, although she said she did not particularly inspect it. 

8. The medical practitioner who examined the complainant, Dr Greenham, said that she found that the vagina was approximately 1.5 centimetres in diameter and that it gaped.  There was only a thin remnant of hymeneal tissue around the inside.  That was consistent with repeated penetrations by a blunt instrument, of which an erect penis might be an example.  She also said that when she parted the buttocks of the complainant child the anus dilated which was consistent with penetration of the anus although it was less compelling evidence of interference than the evidence of the state of the girl’s vagina. 

9. The submission as to a fatal lack of particularity in respect of count 1 was put on the basis that all the girl could say was that it was the first occasion on which sexual interference had occurred, that on that occasion he had used three fingers and that it happened while she was residing at Grasstree Beach.

10. The period in which the offences allegedly occurred is narrower than that alleged in the indictment since the complainant said she recalled that the first offence did not occur during school holidays because she was just starting at  a new school.  There was evidence from the complainant’s mother that the complainant started at that school at the commencement of the 1995 school year.  The time frame in which the first offence occurred is therefore restricted to the period from the commencement of the school year until 8 March 1995 at the most.  There was no challenge to the girl’s evidence as to when the interference began, which is understandable since the accused gave evidence denying any improper conduct at all.  The second, third and fourth offences were similarly placed within that time frame since the complainant gave evidence that those offences occurred on the evening of a school day. 

11. The case is therefore one where the time frame is not as lengthy as is often the case in this kind of matter.  It is however relevant to observe that the Crown Prosecutor’s implication that the girl would give evidence that the incident comprising count 1 was the only occasion when the particular method of interference had been used did not eventuate since the girl gave evidence that the numerous acts of indecent treatment involving touching her private parts were much the same.  Nevertheless, the evidence was that on an occasion within the time frame referred to there was an act of interference involving the use of three fingers and that it was the first occasion upon which any such act had been committed.  The trial judge stressed to the jury in very plain terms that they must concentrate upon that act and not convict unless each and every jury member was satisfied beyond reasonable doubt that that particular act had occurred.                

12. Since S v. R (1989) 168 CLR 266 the question of what amount to minimum standards  for a fair trial in cases where it is alleged that multiple offences of a sexual nature have occurred and there is a lack of detail in the evidence relied on by the Crown has received much consideration.  The problem is often the consequence of the age of the victim upon whom the offences are alleged to have been committed or the lapse of time before the offences come to light, or both.  The appellant’s case requires the court to apply the proper principles in the context of the evidence at trial and the manner in which it was conducted. 

Lack of Particularity

13. There are two aspects of the need for particularity.  One is the need to eliminate the risk of duplicity.  The occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury as a specific event upon which they must focus.  There must ultimately be adequate directions that the jury must be satisfied beyond reasonable doubt of guilt of that particular offence and no other and as to the use which may be made of evidence of other unparticularised acts of the same character in the process of reaching the verdict. 

14. The second purpose of particulars is to give the accused person a sufficient indication of what is alleged against him on the occasion when he is said to have committed the offence.  In R v.  R (CA No.445 of 1997; CA No.17 of 1998, 6 May 1998) Dowsett J analysed S v. R in detail and extracted a number of the difficulties identified as being likely to result from inadequate particulars.  Fitzgerald P and Davies JA appear to have accepted this analysis although there was a division of opinion as to the sufficiency of particulars on some counts, leading to dissent by Fitzgerald P as to the result on that issue.  In the circumstances I gratefully adopt Dowsett J’s analysis of S  v. R as a starting point for consideration of the merits of the appeal. 

Count 1

15. The act relied on was one of a series of alleged acts by the accused which involved him touching the private parts of the complainant with his fingers after pulling her panties down as she lay in bed late at night.  It was alleged to have been committed at Grasstree Beach (as were all of the other unspecified acts) during a period which the indictment alleged to be a little under 4 months and which the evidence further confined to a period of about 6 weeks at the most.  The Crown particularised the act relied on as the first of such acts. 

16. Unlike many cases of this kind, the period of time during which it was alleged that indecent acts were performed was relatively brief.  That, however, is not decisive.  It simply reduces the risk of embarrassment to the accused in having to defend himself in relation to an indeterminate number of alleged offences occurring on unspecified dates and the unfairness inherent in requiring him to defend himself in respect of any occasion on which the offence may have been committed.  Further, focusing on a specific but limited period of time may minimise the loss of opportunity for the accused to know how he may answer the charges and to raise specific and effective defences caused by the lack of specificity.

17. In support of the submission that the appellant was embarrassed in his defence by the lack of particularity, reliance was placed on observations of Dawson J on the subject in S v. R at 275.  Those remarks were made in the context of a case where the Crown had neither provided nor been required to provide particulars and the case had therefore gone to the jury on a basis that was duplex.  Nonetheless the risk of embarrassment has been recognised in other circumstances particularly where the offence is not identified or identifiable by reference to any distinguishing fact, matter or event. 

18. In R v. F (C.A. No.439 of 1994, 12 December 1994) the Crown elected to proceed on the first and last occasions when the complainant alleged she had been indecently dealt with.  The last occasion was particularised as about 3 weeks before the interview with the police when the appellant, who was a house painter, was not working because it was raining.  In the recorded interview with the police she had said that the first offence occurred “after her birthday”.  At trial she was unable to say whether the first act was before or after her birthday.  That was the date chosen as the beginning of the period alleged in the indictment in respect of that offence.  With respect to the last offence, she could not remember any particular day upon which it had happened.  The effect was that, considering only the complainant’s evidence at the trial, the Crown failed to prove that the appellant had indecently dealt with her on either the first occasion or the last occasion particularised. 

19. The Court said the following:-

“Considered in the abstract, it would seldom be helpful to identify an act or event simply as the first or the last in a series.  To an accused person who is innocent (as some are, and all are presumed to be), the first occasion or the last occasion would be meaningless.  In the present case, however, the identifying particulars given by the prosecution were not provided in such an abstract a form.

.....

The two offences were, as his Honour confirmed after hearing counsel refer to the transcript:

1. the occasion after the complainant’s birthday in 1993; and
2. the occasion about three weeks before the recorded interview on 21 March 1994 when the appellant did not go to work because it was raining.

In this respect the present case therefore differs from S. v. The Queen, Podirsky v.  The Queen, and R. v. S., where no attempt at all was made to identify the particular offence charged in each count with any event, act, or occasion.  In summing up to the jury at the trial, his Honour was careful to isolate the two offences they had to consider.

.....

The question remains whether the level of particularisation or identification achieved was sufficient in the circumstances of this case.  In respect of the charge in count 1, we do not think it was.  The offence it charged was alleged to have occurred within the period extending from 1 January to 31 December 1993, or at least from 3 April 1993, during which indecent dealings were said by the complainant to have taken place “more than five times”.  None of those five or more occasions was identified or identifiable by reference to any distinguishing fact, matter or event.

.....

[Count 1's] designation as “the first occasion” did not enable it to be identified by referring to any objective external fact or event and did nothing to diminish the difficulties apprehended by their Honours in similar circumstances in S.  v.  The Queen.

The absence of any particularity capable of identifying the acts constituting the offence charged in count 1 did not necessarily extend to the offence charged in count 2.  The occasion on which it was alleged to have been committed was identified from the transcript of ex.  1 as being “about three weeks ago” (i.e. before the interview on 21 March 1994), and as having happened at a time when the appellant was not working because it was raining.  It is true that the utility of the identification depended at least in part on how long the applicant was off work while it was raining; and that the complainant had said it happened “more than one time” during grade 4.  But she also said it was”about three weeks” before the interview on 21 March 1994 that it had last happened, and she was speaking of a morning during the period running from the Christmas holidays, when she was in grade 4.  The occasion in question therefore fell within a comparatively recent off-work period during the months of January and February 1994.

To identify the occasion in that way ought to have enabled the appellant to defend himself at the trial against that charge.”

20. In R v. R (CA No.445 of 1997) Dowsett J expressed in the following passage a general statement of what is necessary to achieve the minimum requirement of particularity:-

“In general, as a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence.  I cannot see how there can be a trial in the absence of that degree of particularity.  Of course, this requirement does not exclude multiple charges of substantially similar events, provided the evidence demonstrates separate, identifiable transactions which can be related to counts in the indictment.  I do not imply that this minimal standard will always be sufficient.  The nature of the offences in question and the circumstances of the complainant will be relevant in determining the extent to which further particulars should be required.  In cases of the present kind it will, for instance, often be difficult for a very young complainant to give particulars of dates although, as this case demonstrates, particulars of place may not be so difficult.  A specified period may be sufficient, although the longer the period, the less satisfactory is the degree of particularity so offered.  The age of the complainant at the time of the alleged offence and at the time of trial may affect any decision as to the adequacy of the particulars.  I mean by this only that a court will be more easily convinced that the Crown cannot further particularize a count where the complainant is a young child than in other cases.  However the ultimate question will be whether the particulars are reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence.  The less satisfactory the particulars, the more important will be an adequate direction as to the difficulties created for the accused in answering the charges and the need for care in scrutinizing the Crown case.  As with so many other aspects of a criminal trial, the adequacy of particulars is very much a matter of judgement.”

21. Davies JA delivered brief reasons for judgment in which he agreed with Dowsett J’s reasons for the orders but made some additional remarks about the sufficiency of particularisation  which do not detract from what Dowsett J said.  The appellant particularly relied on more restrictive remarks by Fitzgerald P as follows:-

“Particulars must allow an accused, who is presumed to be innocent, to identify the occasion to which a count relates.  Details which assume guilt do not perform that function.  It does not assist an accused person who denies guilt to be informed that a count relates to the first occasion when he or she allegedly committed an offence of the nature stated in the count; he or she denies that such an offence ever occurred.  The position is unchanged by adding contentious circumstances, such as the room in which an alleged offence occurred and/or that it occurred during the day or at night when the accused cannot identify the occasion because the circumstances again assume the guilt which he or she denies.  Further, circumstances might be so commonplace as to fail entirely to provide any useful, distinguising (sic) information.

In my opinion, the adequacy of particulars cannot be divorced from the evidence which provides the context for the supposedly differentiating details.”

22. For my part I doubt whether it is possible or helpful to attempt to lay down absolute rules in this area.  Once the sufficiency of particulars falls to be decided in the context of the particular circumstances of the individual case, each case must be decided on its merits.  Cases which are insufficiently particularised may have common characteristics.  So may sufficiently particularised cases.  However, in the end, it may be a matter of judgment and impression whether a case falls on one side of the line or the other, given the wide variety of circumstances which may exist.

23. The importance of the factual context as a whole in deciding the sufficiency of particulars is illustrated by R v K (CA No.64 of 1998, 23 June 1998).  After referring to the  competing views of Fitzgerald P and Dowsett J in R, Lee J with whom Pincus JA and Ambrose J agreed said:-

“At trial the complainant gave evidence, in respect of count one, that this was the first occasion that oral sex occurred.  It is clear that a designation as “the first occasion” is not sufficient particularisation because it does not enable the incident to be identified by referring to any objective external fact or event.  However in this case there is a greater degree of temporal specificity than was present in the case of R (supra) and in the case of S v The Queen .......

Both the Crown Prosecutor’s opening in this case and the evidence of the complainant fixed the dates of the oral sex, the subject of count one, as two to three weeks after the appellant’s wife left the property.  The Crown alleged that the incident occurred in daylight hours and the complainant gave evidence that her Aunt Josephine was present at the property at the time.  One would expect that the departure of the appellant’s wife might have been of some moment.  The appellant’s wife gave evidence herself of when she left.  Given the relatively small window of time in which it is alleged that the offence occurred, the Crown has identified the occasion in a way that ought to have enabled the appellant to defend himself at the trial against that charge.  All that was required of the Crown was to give reasonable particulars and it seems to me that these particulars were reasonable in the circumstances.”

(In R the period particularised was about 5½ months.)

24. The respondent relied on DPP v His Honour Judge Lewis [1997] 1 VR391 in support of the proposition that particularisation of the offence as the first of a series of indistinguishable offences was sufficient.  That authority is unusual in that it involved an application for declaratory relief in respect of a ruling by a County Court judge that latent ambiguity was not removed by such particularisation.  It is in my view not decisive of the wider question of embarrassment of the accused in his defence if allegations in a particular count lack sufficient specificity. 

25. As Davies JA points out in R, where the question is whether, because of the absence  of particularisation, some injustice has been done to the appellant whereby he has been prejudiced, it has to be considered with the benefit of hindsight as to what the appellant’s case was at trial.  In the present case the appellant gave evidence denying that he had committed any indecent acts on the complainant.  His evidence was to the effect that his wife generally went to bed before he did and that he habitually stayed up until the early hours of the morning and sometimes throughout the night using his computer.  There is nothing in his evidence to suggest that he may have been absent from the family home during any period of nighttime when the offences were alleged to have occurred.  In the circumstances of the particular case it seems no more than a theoretical possibility that had a date been particularised he would have given evidence of alibi or evidence differing from a denial of all improper conduct. 

26. In addition to that, the important matters to be taken into account in deciding whether the conviction on Count 1 should be set aside are the fact that the evidence confines the period in which the offence charged and the offences which were much the same as it to about six weeks,  being the period of the 1995 school year while the family resided at Grasstree Beach, that all alleged offences occurred in the bedroom where the complainant and her younger sister slept, that they occurred in the nighttime after the girl had gone to sleep and was awoken, and that the offence in Count 1 could only be distinguished from the others by designating it as the first act in the sequence.

27. It is a question of judgment as to which side of the threshold the matter falls.  In many situations, it will be apparent that particularising a count as the first or last in a series of indistinguishable events will not provide a sufficient indication to an accused person of the case he must meet, thereby embarrassing him in his defence.  However, in the present case, the other factors referred to above provide a context which in my opinion was sufficient to allow the accused person to adequately make his defence.  For that reason, the ground of appeal is not made out.

Counts 2, 3 and 4

28. The position with respect to these counts differs from the situation with respect to Count 1 in that they were all allegedly committed sequentially on the same evening.  No question of duplicity arises since the evidence is that there was only one occasion when these kinds of acts occurred.  On the evidence they occurred within a relatively brief time span on the same night at a specified place.  For reasons previously given the likelihood of the accused giving different evidence from a denial of any impropriety even if the offence were better particularised was fanciful.  The case was essentially one of word against word.  The jury must have rejected the appellant’s evidence to convict.  There is no basis demonstrated for interfering with the convictions on the ground of insufficient particularisation.

29. The second matter of complaint in the amended grounds of appeal concerns the evidence of other sexual incidents with which the appellant was not charged.  Such evidence no doubt has a prejudicial effect but provided it is admitted for a recognised purpose and the jury is properly instructed as to the use it may make of it the evidence may be admitted.  The first matter of complaint in this regard is that the trial judge failed to warn the jury, at the point that such evidence was admitted, as to the limited basis upon which it may be considered.  That is based on a passage from the judgment of Kirby J in Gipp v R (1998) 194 CLR 106, 157.  The propositions that there is an obligation to warn the jury at the point of admission of the evidence as to its proper use  and that failure to do so results in a miscarriage of justice receive no support from other judgments in the case. 

30. In my opinion the essential requirement is that the jury be properly instructed in the summing-up as to the use that may be made of the evidence.  If a trial judge wishes to give an appropriate warning at the time the evidence is admitted he or she is at liberty to do so.   However there is no compelling reason why failure to do so at that time should vitiate a trial. 

31. It is well established, and Gipp v R reinforces the point, that the jury must be expressly and clearly told of the purpose for which evidence of uncharged acts may be used.  In the present case the trial judge referred to the fact that evidence had been given of many more incidents than those in the indictment.  He told the jury that evidence had been given of those acts to give the full history or the true nature of the relationship that she alleged between the accused and her.  He also referred to the proposition that “the accused had an unnatural sexual attraction to his daughter, that he had a guilty passion for his daughter”. 

32. I mention in passing that the failure to elaborate on what was meant by “guilty passion” was criticised by counsel by the appellant.  However when the summing-up is read and it becomes apparent that it was being used as an alternative for unnatural sexual attraction there is nothing in the point.  The trial judge went on to tell the jury that the evidence of the other acts could be used for the purposes to which he had referred.  He then went on to tell them directly that in relation to the matters charged the Crown had to identify and specify a particular act to make absolutely sure that each and every member of the jury was concentrating on the one act.  He warned the jury of the very real problem that on a particular count some jurors might be thinking of one particular act and other jurors might be thinking of another act and that others might reason that because there was evidence that the accused person had done the acts a number of times in excess of the counts on the indictment they would convict him of all counts in the indictment.  He then went on to say that it was necessary for all jurors to concentrate on the one act and pointed out that the Crown would have had very real difficulty in relation to any acts except the first and possibly the last.  He concluded by saying that in respect of count 1 the Crown had particularised the first such act and that all twelve jurors would have to be satisfied beyond reasonable doubt in relation to the one act, the first act, as particularised.  He returned to the subject shortly afterwards, telling them to concentrate on the first act of which she gave evidence and telling them that they all had to be satisfied beyond reasonable doubt that that one particular act occurred.  He said “you must not be thinking of any other act of alleged indecent dealing.  You must not adopt the approach, well she said he interfered with her on a number of times, so I will automatically convict on count 1".

33. In my view the direction on this aspect of the matter was sufficient.  The evidence of the other unspecified acts was admissible on each of the counts on the bases specified.  In my opinion this ground of appeal is not substantiated.

34. The appeal against conviction is therefore dismissed.

35. There was an application for leave to appeal against sentence.  The applicant was sentenced to 2 years imprisonment on Counts 1 and 2, 6 years imprisonment on Count 3 and 4½ years imprisonment on Count 4.  The application was not abandoned, but no specific submissions were addressed to it either in the written outline or in oral submissions by applicant’s counsel.  The Crown’s written outline submitted that the longest sentence, 6 years for incest, was not manifestly excessive.  The circumstances of offences of incest vary widely.  The ages of complainants and the frequency of incest and other forms of sexual interference upon them are factors which influence the outcomes.  In come cases, a timely plea of guilty was made.  Sentences of longer and shorter periods can be found in the examples referred to by the Crown.  The most significant feature in this case is that the complainant was very young.  The applicant is not entitled to any benefit for an early plea of guilty since the child was required to give evidence and be cross-examined at length at a trial.

36. There is no basis for concluding that the sentences were manifestly excessive.  The application for leave to appeal against sentence is refused.

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 8 September 1998

1. I agree with the orders proposed by Mackenzie J. and with his reasons.