The Queen v B and P[1998] QCA 45

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 345 of 1997

C.A.  No. 346 of 1997

Brisbane

[R v B & P]

THE  QUEEN

v

B and P

(Applicants) Appellants

de Jersey CJ

Pincus JA

Muir J

Judgment delivered 20 March 1998

Separate reasons for judgment of each member of the Court; as to appeals against conviction in relation to count 5, de Jersey CJ dissenting; as to appeals against conviction in relation to count 4, Pincus JA dissenting.

APPEALS AGAINST CONVICTION DISMISSED IN RELATION TO COUNT 4 (PROCURING A CHILD TO ENGAGE IN CARNAL KNOWLEDGE).  APPEALS AGAINST CONVICTION ALLOWED IN RELATION TO COUNT 5 (RAPE), THOSE CONVICTIONS QUASHED, NO ORDER FOR RETRIAL.  APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE IN RELATION TO COUNT 4 ALLOWED TO EXTENT OF ADDING RECOMMENDATION FOR CONSIDERATION OF ELIGIBILITY FOR PAROLE AFTER FOUR YEARS AND SIX MONTHS.

CATCHWORDS: Conviction for procuring a child to engage in carnal knowledge, and rape (as aiders); whether direction on circumstantial evidence and as to knowledge aspect of aiding, required; whether proviso to s. 668E applies; whether 12 years sentence manifestly excessive; judge's reference to prior misconduct.

Criminal Code ss 7, 217, 668E (1A)

Evidence Act  s. 93A

M v. The Queen (1994) 181 C.L.R. 487

K (C.A. No. 269 of 1993, 22 October 1993)

R v. D [1996] 1 Qd.R. 363

Beck [1990] 1 Qd.R. 30

Giorgianni (1985) 156 C.L.R. 473

Yorke v. Lucas (1985) 158 C.L.R. 661

R v. M (C.A. No. 413 of 1994, 7 March 1994)

Counsel:  Mr B. Butler SC for the appellants

Mr P. Ridgway for the respondent

Solicitors:  Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

Hearing date:  5 November 1997

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 20 March 1998

The appellants were tried, jointly with one S, on charges of procuring a child to engage in carnal knowledge, rape, and attempted anal intercourse. S was separately charged with two counts of rape and one of anal intercourse. The appellants and S were convicted on the charge of procuring and the charge of rape, and acquitted on the charge of attempted anal intercourse. On each of the two separate charges of rape, S was convicted of attempted rape. He was acquitted on the separate anal intercourse count.

The appellants appeal against their conviction for the offences of procuring and rape, which led to their being imprisoned for 12 years. Not all of the grounds specified in the notices of appeal were pursued before us on appeal. The grounds which were argued were that the convictions are unsafe and unsatisfactory, and, following amendment of the notice of appeal, that the learned judge erred in failing to direct the jury with respect to circumstantial evidence and additionally, but in the case of the rape charge only, on “the requirement of knowledge for there to be a conviction on the basis of aiding under s. 7".

The complainant was the appellants' 11 year old daughter. The offences of which the appellants were (with S) convicted, occurred on 22 February 1997. In a transcript of an interview with a police officer admitted under s. 93A of the Evidence Act, the complainant said that she went to S's place on 22 February at her mother's instigation, for the purpose of her having sexual relations with S. She was to be paid $20 which would go to her parents. She said that her father drove her to the house and waited outside for half an hour. During that period, S had sexual intercourse with her, against her will. When she went outside and gave the $20 to her father, he said: “... since you're here, you can stay here for the night”.

In respect of these incidents, the appellants were convicted of procuring their daughter to engage in carnal knowledge with S, contrary to s. 217 of the Criminal Code; and also of rape on the basis that they aided S, in terms of s. 7. The judge properly directed the jury  on the meaning of the word “procure”. He did not direct them, as would ordinarily be necessary, that one only “aids” under s. 7 if one knows the offence which is or might be committed (R v Beck [1990] 1 Qd R 30), hence the ground of appeal added by amendment. The acts of aiding were, in the case of the female appellant, encouraging or directing the complainant to go to S’s place for the purpose of his having non-consensual sex with her, and in the case of the male appellant, actually taking the complainant there for that purpose.

Other relevant circumstances emerge from the evidence of the previous relationship between S and the complainant. He was also convicted at this trial of attempted rape of her committed between 1 August and 21 November 1996, and then again on 20 February 1997, two days before the events involved in the convictions of the appellants. In an interview with the police on 26 November 1996, which followed the complainant's “fresh complaint” to her teacher Robyn Rowland, the complainant said that when she worked for S in his mower repair shop after school, S attempted to have sex with her, and once succeeded. The complainant withdrew that allegation, however, in a subsequent interview on 10 December 1996, in the presence of her mother. But in the later 22 February interview, she said that she had withdrawn the allegation only because her mother had told her to do so: S had offered the mother $400 in return for the withdrawal of the charge. The jury is to be taken as having accepted that attempted sexual relations took place, and their conviction of S indicates that they accepted the complainant at least in part: correspondingly, they may be taken to have accepted her proffered reason why she withdrew the initial complaint, and that consequently reflects adversely on the credit of the mother.

The Crown relied also on the content of conversations between the appellant and a police officer and a social worker, to help show that prior to 22 February, the appellants knew of inappropriate conduct on the part of S towards the complainant, and the desirability that she have no contact with him. Detective Plant gave evidence that the male appellant, in the presence of his wife, made the following statement with relation to the complainant's attendance at the S house:

“Well, we have had enough of this. She goes up there. We tell her she is not allowed to go and that because we was told last time when this was all said about S and that. She's been to the doctors, been checked out, nothing happened. Now it's all coming back again. What are we supposed to do? Lock her up?”

The reference to “last time” concerns the charge which was withdrawn. The detective also gave evidence of this conversation with the female appellant alone. The reference to “last night” is to 22 February:

“Q. Well was she supposed to be here last night?

A. No. She was supposed to be at S’s where she always goes. Even when you tell her no, she still goes up there.”

A social worker, Ms Truman, said that both appellants told her that they had told the complainant not to go near S’s house. The Crown contends that because of the appellants' awareness of the problems in S’s relationship with the complainant, and their having forbidden her to go to his house, the circumstances of their encouragement or direction that she do so on 22 February, and in the case of the father, actually driving her there, and after a time, being prepared to leave her there for the night apparently alone with S, take on a decidedly sinister complexion.

I turn now to the essence of the Crown case against the appellants in respect of the offences committed on 22 February. That emerges from the transcript of the interview on 23 February. The complainant first related S’s having penetrated her sexually on 20 February while she lay asleep after her work in the shop. She said that she screamed, and that persons came to the house from nearby flats and told S to leave her alone. (I return to this matter later on.) In this context of sexual misconduct, the complainant then says, of the events on 22 February:

“T She knew, she knows about it, though she, she tells me but she told me to go up there tonight to have it again with him just to earn twenty dollars, and I told her I don't want to do it, but she goes you know we need the money, you know, so I go why don't you go do it, if you want the money, you do it yourself. ...

And um so she goes no, you're my daughter, you do it, and I go if you want me to do it, why don't you do it yourself, I'm only eleven, he's a lot older.

PLANT Okay. Alright. So what happened tonight. So you said to mum that you didn't want to go over tonight.

T  Yeah.

PLANT And what happened then.

T Then my dad drove me up and um he said go like your mum said, you've go to do it, because we need the money and um, so he sat outside for half an hour while he did it to me, and then I got the twenty dollars and gave it to my dad.

PLANT Mmm mmm. Alright. So you say he waited, your dad waited outside for half an hour.

T Yeah

PLANT While you went inside and you say he did it. Alright. Can you tell me exactly what happened what he did tonight.

T He had sex with me but I didn't want it. ...

PLANT Okay. Alright, and you say that you got twenty dollars off him.

T Yeah. ...

PLANT Okay. Um, alright, what happened after you um took the money out to your dad.

T My dad said you know since you're here, you can stay here for the night.”

The only reasonable interpretation of the statement attributed in the first part of that extract to the female appellant is that the mother was indeed “procuring” - knowingly recruiting (s. 217(2)), the complaint for the purpose of sexual exploitation by S; and further, that by applying that pressure to the complainant against her clear opposition, she was in the relevant sense “aiding” S’s commission of the rape.

Mr Butler SC, who appeared for the appellants, particularly criticized the learned judge's treatment of the case in relation to the male appellant. The judge directed the jury with relation to circumstantial evidence only on the charges against S, making the point that the Crown cases against the appellants depended on direct, not circumstantial evidence. That emerges from the following passage in the summing up:

“... in relation to count 4 (procuring), the Crown case against the accused P and B relies entirely, you might think, on the evidence of T. That is direct evidence where she relates on the tape of 22 February conversation she says she had with her mother before going up to the accused S’s house and she relates a conversation that she says she had with her father who drove her up to the house. That is direct evidence of those facts. That is a matter for you to assess. There is no direct evidence in relation to S, in relation to count 4.”

While that is accurate with relation to the female appellant, the case against the male appellant was, in my opinion, not direct.

There is no suggestion that the father was present during the conversation between the mother and the complainant covered in the first part of the extract from the interview set out above. The only direct evidence against the male appellant, therefore, rests in his driving the complainant to S’s house and waiting for her and saying on the way: “like your mum said, you've got to do it, because we need the money”. Because of the absence of definition of “it”, that is not a directly incriminating statement. Mr Butler submitted that “it” could refer to the innocent purpose of her doing some of her ordinary work for S in his mower repair shop. It may have been tempting for the jury to assume that there would, in the ordinary way, have been communication between husband and wife about the matter, so that the mother's plainly sinister motivation should be imputed to the father also. But that would have been impermissible, because there was no evidence of such communication.

On close analysis, the case against the father is therefore seen to have been circumstantial in character, and the jury should have been given the usual relevant direction about the need to exclude all reasonable explanations consistent with innocence before convicting. Acknowledging that character of the Crown case against the male appellant, one also sees the need for elaboration by the judge on the requirement to establish in his case, before convicting of rape on the basis that he aided S, knowledge that S would or might commit that offence.

Mr Ridgeway, who appeared for the respondent, submitted that in focusing the jury's attention on the question whether or not they accepted the complainant as a credible witness, which the judge did with some emphasis, he took a realistic approach to the matter, an approach with which counsel may be taken to have agreed, in that they sought no relevant redirection. He submitted that to have included these additional directions may simply have unduly complicated the matter.

But merely concluding that the complainant was credible would have been insufficient to establish the Crown case against the male appellant, for the reasons I have indicated. It fell to the jury as well, in his case, to draw further inferences. The question is whether those inferences, favourable to the Crown, would inevitably have been drawn had the jury been properly directed (Glennon v R (1993-4) 179 CLR 1), so that the conviction could be sustained by reliance on s. 668E(1A) of the Code. The Crown relied on the proviso in the event that the summing up were found defective.

Before expressing my view on that aspect, I return to the contention that the verdicts are unsafe and unsatisfactory. Mr Butler relied on the absence of those directions about circumstantial evidence and aiding, but on a number of other matters in addition. As to the male appellant, he pointed to evidence suggesting that he may not have known of the circumstances of the withdrawal of the earlier complaint against S. He went on to criticize the following passage in the summing up, which relates to the appellant's statements to Detective Plant and Ms Truman, referred to above:

“.. if you accept what was said by the parents on the morning of the 23rd, and indeed something similar was said to the social worker, Mrs Trueman, on 4 April - this evidence wasn't challenged in any way - you might conclude the parents were maintaining that because of concerns they had about S over events that occurred in the previous year, and you might think that would have to be the complaint of rape which was then withdrawn, they did not want T to see S. Their position was she was disobedient and went there anyway.

If you accept T’s evidence that indeed her father did drive her up to S’s house, how does that fit with the parents' evidence in that regard? What was challenged was that the $20 was for cigarettes and not for sex. As I observed, T accepted that. The parents told the social worker it was for cigarettes. If you accept all that evidence, does it assist you in assessing her reliability that the father, notwithstanding the expressed concerns of the parents of having contact with S, was prepared to drive T up to S’s house and have her go in and borrow $20 from him for cigarettes. Do you think that accords with commonsense and everyday experience?”

Mr Butler submitted that that reflected on the appellants in an unduly critical way. But if the appellants had expressed the views related by the police officer and the social worker, it was extremely odd, to say the least, that they should have countenanced any further contact between the complainant and S, let alone facilitate or encourage it, and in the case of the male appellant, going to the point of driving her to S’s house and leaving her there for the night alone with him.

Mr Butler also emphasized the Crown's failure to call evidence supporting the complainant's claim that when she screamed while being raped on the preceding Saturday afternoon, neighbours from nearby flats came to the door and intervened. This claim, he submitted, was demonstrably false. The judge did raise with the jury the prospect of embellishment, and he also discussed with the jury the way in which they might deal with other inconsistencies in the Crown case, and especially, within the complainant's evidence. Mr Butler pointed to the reason why the complainant may have been prepared to present a falsely graphic picture of the involvement of her parents, based in unhappy aspects of her past relationship with them.

I have, in accordance with M v The Queen (1994) 181 CLR 487, considered these and other points relied on for the contention that the convictions are unsafe and unsatisfactory. (Although not directly relevant to this point, I think it worth noting that the jury appears to have approached the matter overall with apparent care, as suggested by their convicting on some counts, acquitting on some and rendering alternative verdicts on others.) The inconsistencies in the evidence were such as might reasonably be expected in an 11 year old girl's narration of detailed accounts on subjects like these.

With relation to the specific statements attributed by the complainant to the appellants, as set out in the extract from the interview of 23 February above, I note that although counsel for the appellants at the trial generally challenged the complainant's credibility, he did not put to the complainant that those statements were not made. The jury would therefore have been entitled to accept with greater assurance that they were made.

In the case of the female appellant, as I have said, there was therefore no room reasonably to doubt that she was procuring and aiding in the relevant senses. As to the male appellant, had there been an innocent meaning for the “it” which he urged the complainant to “do” with S, one would have expected defence counsel to raise it with the complainant in cross-examination. The flow of the interview compels the conclusion that the complainant for her part plainly regarded the “it” referred to by her father as sexual intercourse. Was that the only view reasonably open, so that had the jury been instructed as to the proper approach to a circumstantial evidence case against the male appellant, it would inevitably have convicted?

In my opinion, the only reasonable inference to be drawn from the statements made by the male appellant, and as to his motivation in driving the complainant to S’s house on 27 February, was that he, likewise, was procuring her for sexual exploitation by S, and aiding S’s commission of the rape, knowing that she was an unwilling 11 year old participant.

Quite apart from the words used by the male appellant, taken with the absence of a specific challenge to the complainant in cross-examination, and the likely interpretation - in the flow of the interview - that the male appellant was referring, as had his wife specifically, to sexual  relations, there were these added features: his preparedness to take the complainant to the house of someone with whom he and his wife had forbidden contact, and even more significantly perhaps, his preparedness to allow the complainant to stay the night with S in his house apparently alone.

There is the further feature that she was to pay the money received to her parents, whereas when she worked willingly and innocently for S, she kept it herself.

It defies common sense to suggest that there is any interpretation, in that context, other than the sexually repugnant one.

It follows that the verdicts are not unsafe and unsatisfactory, because the jury acting reasonably, on the whole of the evidence was not bound to have a reasonable doubt. It also follows that the judge's error in failing to direct the jury specifically on circumstantial evidence and as to what constituted aiding, has not led to any substantial miscarriage of justice in terms of s. 668E(1A), because a jury properly instructed would nevertheless inevitably have convicted. 

I have read Muir J’s observations on the matter of consent.   The relevant part of the trial Judge’s direction to the jury was not contested on appeal, or the subject of any application for re-direction.  Those matters are significant.  The jury must anyway, in my view, if properly directed, have accepted this complainant’s account to the police officer, which has the appellants facilitating S’s having sexual relations with the 11 year old complainant who, they knew, was unwilling.  This is also, as necessary, in my view, a matter appropriate for application of the proviso.

I would dismiss the appeals against conviction.

I turn to the applications for leave to appeal against sentence. As I have said, each appellant was convicted jointly with S on one count of procuring a child to engage in carnal knowledge, and one count of rape. The verdicts reasonably conveyed the jury's conclusions that the applicants, the parents of this 11 year old complainant, deliberately sent her to the 67 old S, against her will, so that he might sexually prey upon her, and for a small sum of money for their own use. The judge fairly characterized their conduct as at “the epicentre of depravity”. The judge sentenced the appellants to 12 years imprisonment on each count.

The applicant B was 37 to 38 years old at the time, and P 36. B had previous convictions for dishonesty, and P none. Neither showed remorse. Through pleading “not guilty”, they effectively compelled the complainant to give evidence. The consequences to the complainant of these offences have been “catastrophic”, to adopt the sentencing judge's term. The complainant now suffers vastly exacerbated psychological and psychiatric problems, and her prospect of an adolescence and adulthood even approaching normality has been virtually destroyed. Importantly also, as the judge pointed out, she is now deprived of all hope of normal, natural parental love and affection and family support.

The applicants nevertheless contend that the 12 year sentences are manifestly excessive. They relied, in particular, on K, C.A. 269 of 1993, where the Court of Appeal reduced a 14 year sentence to 11 years for rape by a father of his 5 year old daughter. Davies JA and Thomas J made this observation:

“It is apparent that sentences of more than ten years tend to be accompanied by aggravating features such as the commission of concurrent offences such as sodomy, or abduction or deprivation of liberty, or circumstances such as a brutal attack, the use of weapons, or attacks on very old women or very young girls, or cases where the authority of a father or person in loco parentis has abused the trust of a child.”

It would be difficult not to regard as an “aggravating factor” within their Honour's contemplation, the depravity of these applicants, in a calculated way, having placed their vulnerable 11 year old daughter within the sexual clutches of this grossly disreputable 67 year old, and for their own ultimate, and cheap, financial profit. I consider the 12 year old sentence imposed here to fall within the appropriate limits of the sentencing discretion available to the judge.

The applicants do however contend that the judge fell into particular error, in the way he apparently took into account evidence of past exploitation of the complainant by S with the  applicants' connivance. The judge said this, referring back, as the time of “the first rape complaint”, to late 1996:

“Consistent with (the) verdicts and my own assessment of the evidence I intend to proceed on the basis your relationship with S, at least from the time you became aware of the first rape complaint, was not innocent and in that sense your actions on 22nd February cannot be viewed in isolation. In taking this approach I have considered the principles summarised by the Court of Appeal in DF (1985) 80 ACR 50 at pages 87 to 88. In my judgment the evidence of your ongoing relationship with S over that period, involving as it did the exchange of money, after the child had made her first complaint is an important matter in sentencing.”

It is convenient for me to set out now the essence of the submissions made in this regard for the applicants:

“It is submitted that the learned sentencing Judge erred in taking into account on sentence that the relationship of the applicants with S, at least from the time they became aware of the first rape complaint, was not innocent and involved the exchange of money.

The applicants were convicted for procuring and being parties to a single rape offence on 22 February 1997. S was also convicted of two further offences of attempted rape, one in late 1996 and another on 20 February 1997. The applicants were not convicted of any offence in respect to either of those attempted rapes. Nor were they charged with perverting the course of justice in respect of the withdrawal of the rape allegation in November 1996.

The logical consequence of the approach His Honour took resulted in the appellants being sentenced on the basis they were culpable in respect to the withdrawal of the original rape complaint and the commission of the attempted rape on 20 February 1997. Those matters were not material to the sentence to be imposed for the offences upon which the applicants were convicted. The head sentence received by the applicants was the same as that of S although he was convicted of multiple offences against the child and they were convicted in respect to a single occasion of rape.

It is submitted that the relationship taken into account involved separate offences for which the applicants were not convicted. the sentencing approach was therefore inconsistent with the principles outlined in R v D [1996] 1 Qd R 363 at 403.”

The principle confirmed in R v D, as relevant to this case, is simple enough: the court must not, in sentencing for offences of which the applicants were convicted, take into account other possible offences, or any circumstances which might with respect to the offences charged constitute a circumstance of aggravation. In other words, the sentence must not be affected by reference to uncharged criminal conduct. This judge was referred to D, and asserts that he has not acted inconsistently with it. There is no reasonable ground for doubting that assertion.

What the judge is to be taken as saying, is that over a period prior to these offences, the applicants at least acquiesced in the development, between S and the complainant, of a relationship which was on his and the applicants' part morally reprehensible, including on their account a questionable financial motivation. The judge is to be seen as having gone no further than that: it was morally reprehensible conduct, although not criminal, so that the constraint of D was not infringed.

But the character of that earlier relationship was certainly important and relevant, because it indicated that the judge should regard the circumstances of the offences just as they appeared - that is, without excuse or other mitigating feature, and for that reason, necessitating severe punishment.

The circumstance that the majority of the Court in Appeal No. 343 of 1997 is of the view that the sentence of 12 years should, in the case of S be reduced to 9 years does, however, render the 12 years imposed on these applicants disproportionately heavy.  Acknowledging that S is, following appeal, to be subject to the 9 year term, and that he was the offender who actually committed the sexual act, the 12 year penalty imposed on the applicants for count 4 should be moderated.   I would achieve that by allowing the applications for leave to appeal against sentence, in the case of count 4, to the extent of adding to the 12 year sentence a recommendation for consideration of eligibility for parole after 4 years and 6 months.  That means that the applicants will face the immediate prospect of serving one half of the term to which S is to be subject, which establishes reasonable proportion, taking account of his advanced age on the one hand, but his more active physical participation on the other.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20 March 1998

I have read the reasons of de Jersey C.J., in which the nature of the case is explained.  His Honour has expressed the view, with which I respectfully agree, that there were inadequacies in the directions the judge gave the jury;  unlike de Jersey C.J., however, I have come to the conclusion that the defects in the judge’s directions were such as to require that the convictions be quashed.

There were six counts in the indictment, three of which concerned these appellants, and the counts required the jury to consider, with the assistance of directions from the trial judge, allegations of 12 offences - 6 against S and 3 each against these appellants.  Counsel for these appellants asked that they be tried separately from S and that application was refused.  No complaint is now made of that refusal, but because of it the matter remained one in which it was essential for the judge to explain to the jury precisely what were the matters of which they had to be satisfied in order to convict, in respect of each of the dozen Crown cases. 

That was no easy task.  It was one of particular importance with respect to the appellant B, the allegations against whom (in respect of the two counts on which he was convicted) were described by the trial judge as "tenuous, weak and vague". 

The jury had to consider three allegations of rape on different dates and two of attempted carnal knowledge by anal intercourse.  By its verdicts the jury showed that it was not satisfied, to the requisite standard, about four out of the five sexual acts complained of;  S was found not guilty of two of the three rapes alleged, and not guilty of the two allegations of attempt to have carnal knowledge by anal intercourse;  the convictions against him were two of attempted rape and one of rape.

Each of the appellants was convicted on two counts, each of which related to the one rape of which S was found guilty.  The extent to which the jury was not prepared to declare itself satisfied, to the requisite standard, of the truth of the complainant’s allegations is of significance when one considers whether or not the judge’s misdirections entitle these appellants to have their convictions quashed;  the rejection of, or failure to accept, parts of the complainant’s assertions makes it harder to conclude that if the jury had been directed as (in my respectful opinion) they should have been they must inevitably have convicted the appellants on the two counts in question.

Mr Butler S.C., who appeared for the appellants, argued that the convictions were unsafe because of contradictions in the complainant’s evidence, and other matters.  As there should, because of the judge’s directions, be an order made quashing the appellants’ convictions, I find it unnecessary to explain why I have concluded, as I have, that that part of Mr Butler’s argument must be rejected.  But I propose to deal with one factual point Mr Butler made;  it illustrates that one should not assume, in considering whether convictions were inevitable, that the jury must have confidently accepted the accuracy of that part of the complainant’s evidence which dealt with the counts on which the appellants were convicted (counts 4 and 5). 

Count 2 alleged that on 20 February 1997, S raped the complainant and count 3 alleged that on that date he attempted carnal knowledge of her by anal intercourse.  In an interview with a police officer on 22 February 1997, two days later, the complainant said in effect that on 20 February 1997 and also on an occasion in 1996 -

". . . I screamed and then these, two people then, then came over from the flats and asked me what’s wrong and I told them, then they told him to leave me alone, took me home and my mum rang here . . . ".

In conversation with the witness N on the same day, according to the evidence of that witness, the complainant told her that on 20 February S raped her, that she screamed and that two people "from the flats" must have heard her scream, came to the door and asked what was happening.  She told them that, "this man in here" was raping her, twice.  They then told S to leave her alone, took her home and told her mother what was happening.  Then, according to the complainant’s version said to have been given to N, her mother rang the police, the police came and she told the police everything.

It is puzzling that there was no evidence from the people said to have come to the door, nor from the police, about the events just mentioned.  There must in consequence be at least some doubt as to whether it was true that the complainant told people who came to the house, or her mother or the police on 20 February 1997 that S had raped her.  In mentioning this aspect I do not wish to convey a view that it was the only weakness in the Crown case;  it was, however, one which must have given any rational jury concern, as to the extent to which they could rely upon evidence the complainant gave about conversations.  Accuracy in recounting conversations with the appellants was an important consideration in the Crown case against these appellants.

Adequacy of Directions

The two counts of which the appellants were convicted both relied, in essence, on the same proposition - that the appellants got the complainant to go to S so that S could have sexual intercourse with her.  To establish the allegation in count 4, that of procuring the complainant to engage in carnal knowledge, it was not necessary to prove that she was raped;  s. 217(1) of the Code reads as follows:

"A person who procures a person who is not an adult or is an intellectually impaired person to engage in carnal knowledge (either in Queensland or elsewhere) commits a crime.

Maximum penalty - imprisonment for 14 years." 

The word "procure" is defined by s. 217(3) as follows:

" ‘procure’ means knowingly entice or recruit for the purposes of sexual exploitation."

To prove count 5, that the appellants committed rape upon the complainant, the Crown had to prove that she was raped and that the appellants were complicit in the rape under one of the provisions of s. 7(1) of the Code.  What the judge said by way of explanation of the way these provisions bore upon the case against the appellants was as follows:

"Count 4, members of the jury, is different form of charge altogether . . . It is alleged that the three accused procured [the complainant] - it is alleged she is not an adult but you won’t have a doubt about that - to engage in carnal knowledge.  Procured is defined by the law in this way:  it means to knowingly entice or recruit someone for the purposes of sexual exploitation.  Carnal knowledge includes carnal knowledge by anal intercourse.  So that allegation contained in that count depends on the evidence of [the complainant] to which I have briefly referred and which has been referred to you in some detail by counsel . . .

The Crown brings the charge against the parents in relation to count 5 on the basis of a provision in our law which, when I read it out to you, I am sure you will see accords with commonsense.  The relevant provision in our Criminal Code provides as follows:  ‘When an offence is submitted (sic) each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it;  that is, every person that does the act which constitutes the offence.’

The Crown say in relation to counts 5 and 6 that is the accused S, ‘Every person who does or omits to do any act for the purposes of enabling or aiding another person commit the offence and every person who aids another person in committing the offence.’  The Crown case against both the accused parents here is that they did or omitted to do acts which enabled or aided S to commit the offence of rape in count 5 and that is referable to the evidence in [the complainant’s] interview with Detective Plant on the 22nd February which has been read to you on a number of occasions."

It will be noted that the judge did not identify the evidence on which count 4 depended, other than to say that he had referred to it briefly and that counsel had referred to it.  His Honour did not attempt to explain what sort of knowledge was necessary to fulfill the requirement that the enticement or recruitment be done "knowingly".  Nor was there any explanation of the relationship between counts 4 and 5 which, as I have said, as a practical matter relied on the same facts - except as to the element of lack of consent to intercourse.  These were in my view unsatisfactory features of the directions.

One must suspect some mistyping or omission in the sentence beginning: "The Crown say in relation to counts 5 and 6 . . . ".  The words "that is the accused S" make no sense, where they appear.  That sentence directs the jury’s attention to paras. (b) and (c) of s. 7(1) of the Code, on both of which the Crown presumably relied.  There is a difference between the wording of those two provisions which has present significance and was discussed by Philp J. in Solomon [1959] Qd.R. 123 at 128, and by Macrossan C.J. in Beck [1990] 1 Qd.R. 30 at 37, 38.  The latter passage includes the following:

"The intention involved in the criminal activity referred to in subs. 7(b) emerges from the use of the phrase ‘act for the purpose of . . .’.  Similar express words are absent from subs. 7(c) but as Philp J. observed it is hardly possible to aid the commission of the offence without awareness of the offence which is (or might be) committed . . . it is obvious enough that ‘aids’ in subs.(c) means ‘knowingly aids’ . . .".

The Crown case against the appellant B was essentially dependent upon a sentence which is to be found in Exhibit "A", a transcript of a police interview with the complainant:

"Then my dad drove me up and um he said go like your mum said, you’ve got to do it, because we need the money and um, so he sat outside for half an hour while he did it to me, and then I got the twenty dollars and gave it to my dad."

Because it was clear that the complainant had gone to S’s premises on other occasions for innocent purposes, because there were reasons to be doubtful of the reliability of the complainant’s account of conversations she had had and because of important contradictions in the complainant’s evidence, it was in my opinion necessary, in the interests of a fair trial for the appellants, to direct the jury to an important point.  This was that, to convict the appellants on either of counts 4 and 5, it was necessary for the jury to be satisfied not merely that the appellants caused the complainant to go to S’s premises, but that they did so (as to count 4) so that S could have sexual intercourse with her and (as to count 5) so that he could rape her.  As to count 4, the point is clear enough;  the enticement or recruitment must be "for the purposes of sexual exploitation" and must be done knowingly;  there could be no conviction unless the jury were satisfied that the appellants’ purpose in doing what they did was to enable S to have intercourse with the complainant.  These considerations apply to P with less force than to B because the conversation which the complainant said she had with P about going to S was, if accurately recounted, unequivocal.

The necessary mental state of the accused is not so clear, however, with respect to s. 7(1)(c) and that is so because of the expression used in Beck, following Solomon:  "awareness of the offence which is (or might be) committed" (emphasis added);  see also Jervis [1993] 1 Qd.R. 643 at 647, 648.  In his reasons in Beck, Macrossan C.J. referred to the "taxi driver who innocently drives the passenger part of the way to the place where a crime will be committed by him".  Is it enough, to convict the taxi driver of the crime committed by a passenger, to prove that he knew that the person being carried might commit a crime at his destination?  An answer is, in my view, suggested by the decision of the High Court in Giorgianni (1985) 156 C.L.R. 473.  In that case the High Court construed a New South Wales provision corresponding to s. 7 of our Code, namely s. 351 of the Crimes Act 1900 (N.S.W.): 

"Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender".

Giorgianni was charged with an offence relating to the death of a person in a motor collision;  he was said to be criminally liable under s. 351, although not present at the collision, because he got one Renshaw to drive one of the vehicles involved when it was in a defective state.  Gibbs C.J. said:

"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender". (487, 488)

Wilson, Deane and Dawson JJ. said in effect that to have aided, abetted, counselled or procured Giorgianni -

" . . . must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question . . . ". (500)  (emphasis added)

Their Honours also said, referring to the offences of aiding and abetting and counselling and procuring, that they -

" . . . require intentional participation in a crime by lending assistance or encouragement . . . The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence.  He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it.  It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime". (506, 507) (emphasis added)

I particularly draw attention to the rejection, in the passage just quoted, of the idea that it is enough if the alleged aider or abetter knew of the probability that the acts he was assisting were such as to constitute the factual ingredients of a crime.  This either throws doubt on, or makes it unsafe to rely too literally on, the proposition that knowledge that a crime might be committed is enough.

Giorgianni was, a few months after it was decided, applied by the High Court in a civil case.  In Yorke v. Lucas (1985) 158 C.L.R. 661, the court had to construe a provision in the Trade Practices Act 1974 (Cth) imposing liability on a person who "aided, abetted, counselled or procured" a particular contravention.  In the principal judgment one finds:

" . . . the words used, ‘aided, abetted, counselled or procured’, are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact.  Both in the case of felonies where the principal offender and the secondary participant commit separate offences, and in the case of misdemeanours where no distinction is drawn between the two, a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it.  To form the requisite intent he must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime."  (667) (emphasis added)

It is not easy to see a reason for failing to apply the doctrine of Giorgianni to s. 7 of the Code, where a person is charged under s. 7(1)(b) or 7(1)(c).   As to s. 7(1)(b), the provision itself says that there must be a purpose of enabling or aiding another person to commit the offence;  to secure a conviction under that provision it was necessary for the Crown to show that the appellants did the acts complained of for the purpose of enabling S to rape the complainant.  But, as I have pointed out, the Crown relied below upon para. 7(1)(c) as well as para. (b).  It is not clear from the wording of para. (c) what state of mind the accused must have, in order to be guilty as an aider.  I incline to the view that, following Giorgianni as well as Yorke v. Lucas, the proper construction of the provision is that the accused must be shown to have intentionally taken part in the offence.  But it is perhaps unnecessary to reach a final conclusion on the application of Giorgianni to s. 7 of our Code, a matter which was not argued before us.

There is nothing in the summing-up which emphasises or indeed mentions the necessity of a finding of intentional aiding.  The last sentence of the parts of the summing-up quoted above merits repetition:

"The Crown case against both the accused parents here is that they did or omitted to do acts which enabled or aided S to commit the offence of rape in count 5 and that is referable to the evidence in [the complainant’s] interview with Detective Plant on the 22nd February which has been read to you on a number of occasions."

If the jury took this part of the direction literally, they would think it enough that the appellants did something which in fact enabled S to rape the complainant;  there is no mention of any requirement that the appellants be proved to have known or believed that what was to happen as a result of their efforts was that S would rape the complainant. 

De Jersey C.J. has dealt in his reasons with another aspect of the directions, namely the absence of guidance on the use of circumstantial evidence, against the appellant B.  I am in agreement with his Honour’s view that the case against B is properly classified as circumstantial and that therefore a direction as to the proper use of evidence of that sort should have been given.  I would add that this was a case in which it was, in my view, of particular importance to ensure that the jury understood precisely what the law required them to be satisfied of before they could convict.  With all respect to the learned trial judge, it is my view that his Honour did not achieve that end.

Muir J. has in his reasons discussed the question of consent to intercourse, and the relevance of the complainant’s age to that problem;  I agree with his Honour’s treatment of the matters.

Applicability of Proviso

If one were to start from the assumption that the jury must have accepted that the complainant properly recalled and accurately recounted the circumstances in which she came to visit S’s premises on 22 February 1997, then there would be much to be said for the view that the defects in the directions given could not have influenced the verdicts.  But in my respectful opinion, one is obliged to conclude that the jury could rationally have entertained some doubt about precisely what happened, so far as the appellants were concerned, on 22 February 1997 - but nevertheless been convinced that whatever the appellants did and said brought about the result that the complainant was raped.  Had the necessary mental element, particularly with respect to the Crown case relying on s. 7(1)(c) of the Code, been explained and emphasised to the jury, it is not in my view inevitable that the verdicts would have been the same.  As to the appellant B, there is the additional circumstance that he was entitled to and did not receive a direction with respect to the use of circumstantial evidence, which might well have assisted his case.   The case against the appellant P was stronger than that against B, but it does not appear to me that the difference between the two cases is enough to justify applying the proviso against P.

I have not overlooked that neither appellant gave evidence;  that in my opinion goes against them on their appeals, but that is not enough to enable the Court to resist the conclusion that the trial miscarried and the verdicts must be set aside.

I would allow the appeal of each appellant, set aside their convictions and order that each be tried again on counts 4 and 5.  I find it unnecessary, therefore, to discuss the question of sentence.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 20 March 1998

I have had the benefit of reading the reasons for judgment of Pincus J.A. and de Jersey C.J.  I am in broad agreement with the latter in so far as they relate to count 4.  I would allow the appeal of each appellant against conviction on count 5 (a charge of rape) and set aside the conviction.  I share the concerns of Pincus J.A. as to the adequacy of the directions given by the learned trial judge.  In relation to count 4, however, I am of the view that the verdicts are not unsafe and unsatisfactory and, like de Jersey C.J., I would apply s. 668E(1A) of the Criminal Code.  It seems clear that the jury accepted that part of the evidence of the complainant set out on pp. 4 and 5 of de Jersey C.J’s reasons for judgment.  Once the jury accepted that evidence it seems to me that it, properly instructed, would nevertheless have convicted. 

I am unable to reach the same conclusion in relation to count 5.  It involves the same act of intercourse as count 4 but the essential difference between the two counts is that, in the case of the latter, it was necessary to establish lack of consent on the part of the complainant.  That the jury concluded that there was a lack of consent may be seen from the conviction of the appellants’ co-accused S on a charge of rape arising out of some of the same facts.  The appellants, however, did not directly participate in the acts constituting the rape of the complainant.  Their conviction was secured by operation of s. 7 of the Criminal Code which relevantly provides:-

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-

. . .

2. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. every person who aids another person in committing the offence;

4. any person who counsels or procures any other person to commit the offence.”

As I earlier remarked, an element of the offence of rape is absence of consent by the victim.  Neither appellant, as the reasons of Pincus J.A. demonstrate, can be convicted by virtue of aiding, counselling or procuring the commission of an offence unless his or her participation was “intentionally aimed at the commission of the acts which constitute it.” Giorgianni v. R (1984-1985) 156 CLR 473 at 506. The jury was not so instructed. 

There is no direct evidence that either of the appellants intended, expected or contemplated that any act of intercourse by S would take place without the complainant’s consent.  The fact that the appellants procured the complainant to have carnal knowledge with S does not lead inevitably to the conclusion that they procured her rape by S.  It may have been possible also for the Crown to rely on s. 347(1) of the Criminal Code.  That section  relevantly provides:-

“Any person who has carnal knowledge of another person without that person’s consent or with that person’s consent if it is obtained by force, or by means of threats or intimidation of any kind, or by exercise of authority . . . is guilty of a crime which is called ‘rape’.”

The critical part of the summing up though, made no reference to considerations such as intimidation and exercise of authority.  It is worth repeating it in full:-

“Members of the jury, rape simply is where the male penis penetrates the female vagina to any extent - that is defined in our law as carnal knowledge; you can take it to mean sexual intercourse - without the consent of the female.  Clearly with an 11 year old child consent would not be an issue as between an adult male and 11 year old child.  That really has not been the way in which the matter has been litigated.  The defence is that it simply didn’t occur.  Any degree of penetration is sufficient.  In other words, the Crown don’t have to prove there is full penetration.  Any degree of penetration of the vagina by a penis is sufficient.  The Crown don’t have to prove that the accused ejaculated.”  (emphasis supplied)

I have another difficulty with the above passage.  The learned trial judge was making the point that the accused, S, had not raised the matter of consent, his case being that no form of penetration had occurred.  But it is implicit in the direction that the complainant should be taken as not having given consent to intercourse by virtue of her tender age.  No doubt the age of the complainant, if a minor,  will often be highly relevant to the question of whether or not consent should be found to have been given.  The jury was entitled to regard this complainant’s age as highly significant.  However,  there is no principle of law which deems an 11 year old to be incapable of giving consent. 

Not only then was there no direction in relation to intentional participation but the jury may well have understood from the direction they received that there was no need for them to turn their minds to the question of each appellant’s intention in relation to non-consensual intercourse or penetration.  Having regard to those matters, I find it impossible to conclude that the jury gave proper consideration to the elements necessary to establish the appellants’ guilt.

I do not regard s. 668E(1A) of the Criminal Code as capable of application to the conviction on count 5.  The fact that the jury was prepared to convict on count 4 shows an acceptance by the jury of a high degree of moral depravity on the part of the appellants.  However, I am not able to conclude that a properly instructed jury would have found all the elements of the offence of rape proven against the appellants. 

There was evidence from which it was open to the jury to infer that the conduct of P was intentionally aimed at the commission of acts which constituted the rape of the complainant.  The most telling evidence against P may be thought to be the evidence that the complaint of rape in late 1996 was withdrawn at the appellant's instigation in return for a payment of moneys by S.  There is also the evidence, in the complainant’s record of interview, of a conversation in which the complainant asserted an unwillingness to have intercourse with S but in which the appellant told her to submit to S “because we need the money”.  But the evidence is not without aspects which give rise to concern.  In his reasons, Pincus J.A. referred to an incident alleged by the complainant in her record of interview in which: she was allegedly raped on 20 February 1996; in which neighbours, in response to her screams, came to the door of the S’s residence and were told she had been raped and in respect of which the police were called and told of what had occurred.  He points out that no evidence was adduced by the Crown of any such complaint or response by neighbours.  The complainant did not persist with this assertion in cross-examination.

The complainant gave oral evidence that, in relation to the November 1996 incident, the appellants' response to the complainant's assertion that she was raped was to tell her that she was a liar. 

She responded “No” to the question “Had you ever spoken to your Mum about Mr S and that (sic) you told her that he was doing things to you, improper things?”

It is also the fact that the jury rejected other parts of the complainant’s evidence.

The case against the male appellant is weaker than that against the female appellant as it is largely circumstantial.

Even without the difficulties in the Crown case which I have just mentioned, the appellants' case in relation to count 5 appears to me to be stronger than that of the appellant in R v. M (7 March 1994, Court of Appeal, Qld, unreported).

The court in that case concluded that “it was fundamentally wrong to give a positive direction to the effect that consent was impossible” [in the case of a 12 year old complainant].  The court, although clearly of the view that the case against the appellant was a strong one, allowed the appeal on the basis that “the appellants’ chance of acquittal on the count of rape, however slim, was denied to him by the misdirection.”

I would also allow the appeals against sentence to the extent stated in the reasons for judgment of de Jersey C.J.  In taking this course I have in mind the reduced sentence of the appellant’s co-accused who actually committed the sexual act, their acquittal on the charge of rape and the female appellants’ lack of a previous criminal history.