The Queen v R[1998] QCA 83

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No 445 of 1997

C.A. No. 17 of 1998

Brisbane

[R. v. R ]

THE QUEEN

v.

R

(Applicant) Appellant

Fitzgerald P

Davies JA

Dowsett J

Judgment delivered 6 May 1998

Separate reasons for judgment of each member of the Court, Davies J.A. and Dowsett J. concurring as to the orders made, Fitzgerald P. dissenting in part.

APPEAL AGAINST CONVICTION ON ALL THREE COUNTS ALLOWED AND CONVICTIONS QUASHED. 

VERDICT OF NOT GUILTY ENTERED ON COUNT 1.

ORDER A RETRIAL LIMITED TO CHARGES OF INDECENT ASSAULT ON EACH OF COUNTS 2 AND 3.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 6 May 1998

The circumstances giving rise to this appeal are set out by Dowsett J.  I agree with his Honour that the appeals against conviction must be allowed on both counts of rape and the count of attempted unlawful anal intercourse with a circumstance of aggravation.  All counts relate to alleged sexual misconduct towards a child who was then six years of age in the period between 1 October 1996 and 20 March 1997. 

His Honour’s reasons for judgment set out the issues and the material evidence, and contain an extensive discussion of the appellant’s complaints.  I am in general agreement with his Honour’s reasons for concluding that a verdict of acquittal should be entered on the first rape count because the prosecution did not, and cannot, meet its obligation to provide the particulars to which the appellant was entitled, and would be entitled if that count were to proceed.

However, I do not agree that counts 2 and 3 were, or can be, adequately particularised.

The prosecution difficulty stems from its tactical objective of adducing a history of sexual misconduct by the appellant towards the child which is not confined to the three offences referred to, if indeed it is confined to the period in which those offences were allegedly committed.  The immediate result of evidence from the child that there were numerous occasions on which the appellant offended is that there was latent ambiguity in the counts.  That latent ambiguity had to be resolved by the prosecution, but could only be resolved by particulars which selected specific occasions of offending from what were otherwise an indeterminate number of offences on unspecified occasions.

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 information.

In my opinion, the adequacy of particulars cannot be divorced from the evidence which provides the context for the supposedly differentiating details.  In the present case, for example, in which the prosecution evidence is of many occasions on which the appellant was home with the child and her sibling, it does not meaningfully limit each count to an identifiable occasion to refer to the absence of the child’s parents or the presence of her sibling, or a room which they regularly used or a generalised period such as day or night.

Before departing from this topic, I should note my disagreement with Dowsett J.’s statement that the “age of the complainant at the time of the alleged offence and at the time of trial will affect any decision as to the adequacy of the particulars”.  In my opinion, the only matter for consideration for that purpose is what is necessary for an accused’s fair trial.  Perhaps s. 229B of the Criminal Code was intended to obviate the need for particulars.  If so, the decision of the High Court in K.B.T. v. R.^[1] demonstrates that the attempt was unsuccessful.

At the end of his reasons for judgment, Dowsett J. refers to the topic of “Interview Technique”.  I agree with his comments.  A significant proportion of the work of this Court in its criminal jurisdiction involves alleged sexual offences against children.  It is reasonable to conclude that these revolting offences are all too common in the community, which understandably is angered by them and expects that those who are guilty will be punished.  Nonetheless, any particular accused might be innocent, and all are entitled to the presumption of innocence.  The role of the courts is clear.  Each accused must be tried fairly and in accordance with the law.  Procedural and evidentiary difficulties cannot be avoided or circumvented to facilitate the task of the prosecution.  It is the responsibility of the Director of Prosecutions and the Police Service to commit resources, provide training and develop techniques, especially for interviewing young children, which are needed to meet the law’s requirements.  Recognition that out-of-court interviews with children would be more useful if such occasions were used as a means of ascertaining the truth in a form suitable for use as evidence, not merely to strengthen the prospect of conviction is critical.  Leading questions are not a satisfactory method of elucidating the confused and sometimes contradictory accounts which many children, especially younger children, frequently give.  The problem is particularly acute because interviews which procure incriminating evidence take place in the absence of the accused.  If the rules relating to particularity, for example, are to be modified, that step should be taken only by Parliament and then only after proper inquiry and consideration of all factors, including safeguards for those who are accused.

The remaining issue concerns sentences imposed on the appellant.  I agree with what has been written by Dowsett J.

In summary, I am reluctantly of opinion that the appeals against conviction should be allowed, the convictions quashed and verdicts of acquittal entered.  The application for leave to appeal against sentence in respect of the other offences should be refused.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 6 May 1998

I have had the advantage of reading the reasons for judgment of the President and of Dowsett J.  I agree with the orders proposed by Dowsett J. and, subject to what I say below, with his Honour's reasons for those orders.

As the difference of opinion between the President and Dowsett J. turns on whether counts 2 and 3 were or can be adequately particularized I wish to add some comments of my own on that question.

The answer to that question depends on whether, because of absence of particularity of those counts, some injustice has been done to the appellant whereby he has been prejudiced.^[2]  That question is now being considered in the context of a decision whether a new trial should be ordered;  that is, in this case, with the benefit of hindsight as to what the appellant's case was at the trial.  That is relevant, as I shall attempt to show, to the question whether counts 2 and 3 were adequately particularized as well as to whether they can now be.

It does not appear that any formal request was made at the trial for particulars of counts 2 and 3.  Nor was any complaint made at the trial about the absence of particularity on either count.  On the contrary it appears to have been specifically conceded that counts 2 and 3 were adequately particularized.

It is plain from the prosecution evidence that it was contended that the events constituting counts 2 and 3 occurred in the lounge room of the complainant's house on an occasion, which must have been at night, when her parents were at work and the complainant and her two younger sisters were at home alone with the appellant.  They occurred, according to the complainant, at a time immediately before her two younger sisters entered the room whereupon the appellant gave a false and exculpatory explanation to them of what had occurred.

The appellant in his evidence conceded that over a period of two and a half to three months during the period alleged in the indictment he babysat the complainant and her two younger sisters on two nights a week whilst their parents were at work.  It is plain that the complainant's evidence relates to one of those nights.  It could not be contended, and Mr. Hamlyn-Harris who appeared for the appellant did not so contend, that if more specific particularity had been given as to dates the appellant would have given evidence inconsistent with that which he gave.

The most that could be said for the appellant is that, if the prosecution had specified the date on which counts 2 and 3 were alleged to have occurred, or presumably if the complainant had sworn to such a date, he might have been able to say that he was not there on that date.  That, it seems to me, is no more than a fanciful possibility.  It is almost certain that, whatever particularity had been given about the time which counts 2 and 3 were alleged to have occurred his defence would have been, as it was at the trial, that he was home alone with the complainant and her two younger sisters but that he did not perform any of the sexual acts which she said he did.  No other possible prejudice arising from the absence of further particularity as to time was identified by the appellant's counsel nor, in my view, was there any.

In the circumstances of this case therefore, as experienced counsel who appeared at the trial for the appellant, and who must have known of the appellant's defence, recognized, counts 2 and 3 were adequately particularized.

There is one other matter upon which I comment briefly.  I agree with the comments of both the President and Dowsett J. about the need to foster an extensive training programme for those involved in interviewing child complainants.

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 6 May 1998 

THE CASE

The appellant was charged with two counts of rape and one of carnal knowledge by anal intercourse of a child under the age of 12 years who was in his care. The complainant on each count was the same girl, born on 29 May 1990. The offences were said to have occurred between 1 October 1996 and 20 March 1997. She was therefore six years of age at the time. The appellant’s trial commenced on 4 November 1997, by which time the girl was seven years of age.   He was born on 24 August 1980, was aged 16 at the time of the alleged offences and 17 at the time of trial. He is the cousin of the complainant’s stepfather and at the relevant times, was  staying with the family at their home at Redbank Plains. The complainant’s mother worked part-time at nights at a pizza parlour, delivering pizzas. On occasions, the complainant’s stepfather would go to work with her to provide security. On those occasions, the appellant cared for the complainant and her three younger sisters. On other occasions, the appellant went to work with the mother.

On the evening of Wednesday, 19 March 1997, the complainant’s mother and stepfather, with the complainant and another child, set out to visit the complainant’s grandmother, leaving  the other two children at home with the appellant. Prior to leaving home, the complainant’s mother asked her whether she wished to stay  with the appellant or come with them. She indicated that she did not wish to stay with the appellant. During the course of the car trip, the complainant’s mother asked why she had not wished to do so.  She initially gave no reason but when pressed, said that the appellant, “has been licking my wee and he makes me lick his”. The party returned home because of fear for the other children. The complainant’s stepfather allegedly confronted the appellant, who denied that anything untoward had occurred. In evidence, the appellant denied the confrontation. 

The complainant’s mother later said to the appellant,“Look if you just really tell me the truth you know, you are never going to change. You always told me you wanted to change, you didn’t want to be like your mother and father”.  The appellant replied, “Oh, well I suppose I will never change, will I?” She said that she also asked him why he had touched her children, but he made no reply. In evidence, he denied the conversation. In a subsequent conversation, the complainant told her mother that the appellant had, “stuck his wee into my wee and it hurt”. 

The complainant was  interviewed by a police officer in the presence of a representative of the Department of Family, Youth and Community Care. At the first interview, the tape recorder malfunctioned. No evidence concerning that interview was led. There was another interview which was recorded and the record led in evidence.  The complainant  alleged  that the appellant had been, “trying to kiss me on the lips and trying to stick his wee into my wee”.   This had hurt, and she had tried to push him away. She said that this occurred when her parents had gone to the pizza parlour. She seems to have described her stepfather as her father.  When asked how long the appellant had been staying at her home, she said, “About six years”. This was  incorrect. He had  been there for only a few months.

She was asked, “Can you remember what R did to you on, so can you remember how many times R had touched you?” She replied, “Um, every time my mum and dad went out.”  There were unsuccessful attempts to ask a further question, and then the officer from the Department asked:-

“Probably, because you know how you have lots of different memories about R being not very nice.”

The complainant said, “Yes,” and the officer continued:-

“To you and what Tony (the police officer) wants you to try to is have a think about just, just a couple of those times, try and remember a couple of those times, so we can talk about them ... and tell us a little bit about those. Like can you remember, can you remember in your mind a couple of the times or you know some of the times that R did?”

The complainant said:-

“Yeah, well when I was in bed, he used to jump up on my bed and pull down my pants and stick his wee into my wee, and he tried to kiss my lips again.”

She said that she had tried to push him away and that whenever her parents returned,

“... he would race back out and sit down”.

She also said:-

“I used to tell Dad it’s a secret because, if we didn’t, he would keep it doing it because he didn’t know that I was telling Dad.”

She was asked:-

“Alright, right. When did you start telling Dad?”

She replied:-

“Almost about this year when he came. ... last year or something I don’t know.”

Subsequent answers suggest that the sense of this was not that she had told her father about these incidents on numerous occasions over a lengthy period of time, but that she had told him at the time at which her mother said that she had become aware of the allegations.

The complainant said that it hurt when the appellant inserted his penis into her. In answer to the questions, “Was he moving?” and, “How was he moving when he was doing it?”, she said,  “He was  in and out, in and out”. His arms were on her shoulders, squeezing them. She also said that she felt wet and sticky afterwards. She attributed this to “white stuff” which “came out”. The appellant had, “tried to make me drink some of it”. She said that this substance came out of his “wee”. She was asked when this had occurred and said that it was when her parents had gone to the pizza parlour. It had occurred more than once.  The appellant had put the “white stuff” on her “wee”, on her bottom and in her mouth. He rolled her over in order to put it on her bottom. She was asked whether that was at the same time as he had tried to, “put his wee in your wee or was that a different time?”  She said that it was on a different occasion. She then said that he only tried to make her “drink” the “white stuff” on one occasion. She tried to stop him doing so by closing her mouth, but he kept opening her mouth with his hands. In cross-examination, she said that she had only seen the “white stuff” on one occasion.

She referred to one occasion in the lounge when her sisters allegedly saw the appellant touch her  and told their father. She was then asked:-

“Remember you were telling me about when you were in the bedroom and he came and sat on top of you and put his wee in your wee and moved up and down?”

She replied:-

“Yeah.”

She was then asked:-

“Can you remember what time of day that was?”

She responded:-

“It was in the night.”

The transcript indicates that she then said:-

“He only did it once in the night time and the day time.”

This appears to mean that there were only two incidents in the bedroom - one in the day and one at night - but if one listens to the tape, it appears that her reference to “night time” was an error and that she had intended to indicate that such an incident had only occurred once during the day. Whether it occurred in the bedroom is not clear.  She also referred to an occasion in the lounge at night time when her sisters were watching videos. On that occasion, the appellant put his fingers into her vagina and also put his “wee” into her “wee”. At some stage, her sisters saw them. She said that the appellant told a lie to avoid getting into trouble. This appears to be a reference to an explanation he gave to the sisters. The complainant said that she was trying to tell the truth, but he kept lying. 

At pp. 162-3 of the record, those questioning the complainant referred to two incidents of penetration as the “first” and “second” times. It is clear that they were referring to the order in which the incidents had previously been referred to by the complainant. It is of some importance that the complainant had not identified these incidents in that way. She thought that the “first” occasion may have occurred while she was in Grade 1, which was in 1996. She said that the “second” occasion occurred prior to Christmas, but then said that it was after Christmas. When asked why she thought it may have occurred after Christmas, she replied:-

“Because it was the same when he done it every night. Well when Dad was there he wouldn’t because he was too scared.”

She was then asked:-

“So you said he did it every night -- OK.”

She said:-

“But not when Dad was there.”

She was asked:-

“What about Mum?”

She replied:-

“No, she was working at Mario’s.”

This was apparently the trade name of the pizza parlour where her mother worked.She was asked if she could remember any other occasion and she said, “No”.

She was then asked:-

“You remember you said it happened every time that Mum and Dad were at work and you told me about the one in the bedroom and one in the lounge.  Okay.   Can you remember any other times?”

She answered, “No”.

The departmental officer then again specified the two occasions, one in the bedroom and  one in the lounge, and asked if she remembered any other times. The complainant said “No, I don’t”.  She then  said that it had happened on other occasions. She said that the appellant had  said on one occasion that it would only hurt when it went in and not when it came out. However it had also hurt, “when it went out”.

She was subsequently asked:-

“A, do you remember earlier you were telling me that, that R had done something to your bottom as well.   ... What did he do, do to your bottom?”

She replied:-

“Um, stick his wee into my bottom.”

She was asked:-

“When was that?”

She replied:

“Um, Mum and Dad went to Mario’s.”

She was asked:-

“Was that the same time as the first one you were telling me about or when was that?”

She replied:-

“I think the second.”

This apparently occurred in the lounge.

The complainant gave evidence at the trial. In cross-examination she initially said that the first occasion on which the appellant mistreated her occurred in the lounge room, but she then said that this was not the case. She did not know whether it had happened many times before the incident in the lounge or only once or twice. She said that the appellant had penetrated her in her room and  in other places, including the room where he slept. He had done this to her in her bedroom on three occasions and in his bedroom on two occasions, on one of which he stuck his “wee” into her “wee” and into her bottom.  She also referred to an occasion on which the appellant had tried to “lick my wee”. This was  at the time of an act of intercourse in the lounge room.  She said that she had seen a video or videos kept by her parents at the home. This showed sexual acts of the kind which had occurred (as she alleged) between her and the appellant, although she said that she had not seen any ejaculation.  She also described an occasion on which the appellant asked her to go behind the couch and then inserted his finger into her vagina. This occurred while her sister was watching cartoons. The complainant said that on one occasion, the appellant had reported misconduct by her to her mother by calling her at the pizza parlour.

The witness, RCJ, knew the appellant because the latter was friendly with one of the former’s sons. He said that on Saturday, 19 April 1997, he, his son and the appellant drove into the bush, looking for an abandoned car. When they were returning home, an argument broke out between the witness’s son and the appellant in which, as it is alleged, the appellant tried to hit the other boy, who was about the same age. For some reason, the witness took this as an invitation to ask the appellant:-

“Listen you little cunt, did you rape that little girl?”

The appellant allegedly replied:-

“Yes. I wanted to pay the cunts back for the way they treated me.”

The fight escalated, and the witness told the boys to get out of the car and sort it out, which they did. They then went home.  The witness’s son subsequently telephoned the complainant’s parents, having obtained their identity in a way which I do not entirely understand, and asked whether or not their little girl had been raped. These incidents occurred after the complainant had made her first accusation and after the alleged confrontation between the appellant and the complainant’s parents. It seems that the appellant had given evidence in  criminal proceedings against the witness’s son, although his evidence may have been expected to be favourable to him. In the cross-examination of Mr Robinson, it was suggested that the son may have been dissatisfied with the appellant’s performance as a witness, but this was denied.

Dr McGregor examined the complainant on 8 April 1997. At the time, the doctor understood that there were allegations of penetration of the vagina and anus with both the penis and the finger. He found no evidence of penetration of the hymen, which was intact. The transverse hymenal diameter was 4 millimetres, which is normal for a child of that age. There was no evidence of penetration of the anus.  Dr McGregor  said that in an act of penetration, the slit in the hymen would be widened and its margins or  edges  torn. He would normally expect to find evidence of penetration if it had occurred, although he could not exclude the possibility of attempted or partial penetration. By this, he appears to have meant something less than penetration, because he said:-

“It is possible for a person to put his penis near that area or actually pressing on the area without leaving any evidence.”

This could cause pain. He said that the absence of evidence of penetration of the anus also did not exclude that possibility. He said:-

“I would have to say that it would be very unlikely that an act of penetration has occurred within the previous several days, it would tend to be evidence, particularly of penile penetration - one would expect there would be evidence several days after an act.”

He said again that he could not exclude partial penetration. Other relevant factors affecting the likelihood of finding evidence of penetration include the amount of force, the frequency of penetration and the diameter of the penetrating object. He said that regular, complete penetration over extended periods of time would leave indicia including, in the case of the anus, reflex anal dilation. This is involuntary dilation which occurs in persons who have been previously penetrated when a certain stimulus is applied to the anal region. He said that in a child of this age, he would have expected evidence of reflex dilation if there had been repeated and full penetration.   Another possible sign is the presence of perianal warts, of which the doctor appears to have found no evidence. He also found no scarring (which would have suggested that the anal verge had been torn), nor was there any bruising or abrasion. Unfortunately, he was then asked:-

“An act of partial penetration on her anus, pressing up against the anus, would that cause pain?”

I say “unfortunately” because the question is clearly ambiguous. There is a distinction for present purposes between partial penetration and “pressing up against the anus”. The doctor’s answer, in any event, was that it would depend upon the situation.

He agreed that in the event of penetration of a small girl’s anus by a penis, there would be a likelihood of injury if no lubricant were used.  He was asked about the depth of penetration past the entrance to the vagina necessary to establish contact with the hymen. He said that in the present case, the distance was probably about one centimetre. He said that if there had been repeated “in and out” movements associated with such penetration, he would have expected damage to the hymen. He would normally have expected bleeding only if the hymen were damaged.  He had  concluded that there had been no penetration of the anus or of the vagina and had assured the complainant’s mother accordingly.  In re-examination, he was asked to clarify his understanding of the word “penetration” and said:-

“Penetration occurs where an object passes through the slit of the hymen. In other words, it goes beyond a touching and passes through the slit of the hymen, and there was no evidence that that had occurred.”

The appellant gave evidence. He said that his relationship with the complainant was generally good. He remembered her watching a pornographic video on one occasion. He denied ever fondling her, touching her vagina or her anus, putting his fingers into her vagina or her anus, showing her his penis or trying to put it into her vagina.  He denied that any such incidents had occurred  in the lounge or bedroom. He denied ever asking her to  take his semen into her mouth. He said that relations in the household had been declining before he was accused of misconduct. He denied the admission alleged by the witness CJR and that he had any ill-feelings towards the complainant’s parents. He denied the alleged confrontation with the complainant’s parents in March, although he said that some days previously, there had been  discussion concerning a suggestion that he had pulled down the pants of one of the girls. He said that shortly thereafter, he left the home because he was feeling tension. He felt he was being blamed for something that he hadn’t done.  The appellant was convicted on both counts of rape, acquitted of unlawful anal intercourse, but  convicted of attempted unlawful anal intercourse with the circumstances of aggravation. 

PARTICULARS

The first ground of appeal is that the trial miscarried because the Crown failed to give adequate particulars of count 1.  Before considering the specific argument as it affects this case, it is appropriate that I outline the effects of the decision of the High Court in S. v. The Queen (1989) 168 CLR 266. In that case, the appellant was charged with three counts of carnal knowledge of his daughter, the first said to have occurred in the 1980 calendar year, the second in the 1981 calendar year and the third between 8 November 1981 and 8 November 1982. At the trial the complainant was able to give evidence of only two specific acts of intercourse, one which may have occurred in 1979 or 1980 and the other  identified by the fact that the appellant had, for the first time during such an incident, worn his wife’s underclothes. There was no evidence as to the date of this event. Apart from this evidence, the complainant said only that intercourse occurred “every couple of months for a year”, although this was apparently taken to mean over the whole period alleged in the indictment.

Clearly, neither of the two specific events could have constituted  any one of the offences charged. The rest of the evidence raised  latent ambiguities in the indictment in that each count described one identifiable offence, but the evidence revealed that there were a number of offences fitting each description.  All five members of the court agreed that the Crown ought to have been compelled to particularize the counts once such latent ambiguities emerged. This led the majority (Dawson, Toohey, Gaudron and McHugh JJ.) to quash the convictions, whereas Brennan J. (as his Honour then was) considered that it was an appropriate case for the application of the proviso. This may suggest that the difference of approach between the majority and Brennan J. was merely as to a matter of judgment in the particular case, but that is not so. It is clear that the majority took a fundamentally different approach to the question of particulars from that taken by Brennan J.  I make this observation because in the course of argument at trial in the present case, the Crown referred the learned trial Judge to a passage in the judgment of Brennan J. upon which his Honour subsequently acted, although it cannot be said that the Crown urged that course.  For reasons which will appear, I do not consider that the passage in question was consistent with the views of the majority in S.

To convey the effect of that decision it is, unfortunately, necessary that I quote extensively from the judgments.

At p. 274, Dawson J. said:-

“... the three counts in the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a ‘latent ambiguity’ in each of the counts...That ambiguity required correction if the applicant was to have a fair trial.”

Later on that page his Honour dealt with the way in which the problem might have been resolved:-

“... the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged. In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the ‘separate occasions alleged’. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial...”.

His Honour continued (at pp. 274-6):-

“There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but  two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. There was the additional embarrassment that the years in the second and third counts overlapped so that if an occasion fell within the overlapping period, it was not possible to determine whether it was an offence charged by count 2 or by count 3.

The occasions upon which the offences took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.

Not only was the applicant embarrassed in putting his defence, but as the prosecution was not put to an election, the trial proceeded in a manner which made it impossible to deal with questions of admissibility of similar fact evidence...True it is that evidence of acts of intercourse other than those charged may have been admissible as similar facts of sufficient probative force to warrant their admission in evidence...Obviously that high degree of relevance can only occur where the evidence of propensity is related to a specific offence upon an identified occasion. If no occasion is identified, the necessary relationship cannot exist. In this case, where there was a failure to identify the occasions upon which the offences charged took place, the whole of the evidence was, in effect, evidence of propensity which could not be related to the offences charged because of the lack of identification of those offences. In other words, the prosecution’s case sought to go no further than to establish that an incestuous relationship existed between the applicant and his daughter - which is to do no more than establish a particular kind of propensity - and to assert the guilt of the applicant upon three specified occasions during the existence of, and upon the basis of, that relationship. Far from establishing the necessary degree of relevance, to proceed in this way was to obtain the conviction of the applicant upon evidence of propensity unrelated to a specific offence upon an identified occasion. Such a course was clearly objectionable.

The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict. That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasion. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged.

Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged for the same offence a second time, be able to plead autrefois convict or autrefois acquit.”

At p. 277 his Honour continued:-

“At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso ... ”.

Toohey J. said at p. 279 et seq:-

“Objection was taken at trial to evidence concerning other acts of an indecent nature, but not to the generalized evidence of intercourse between the applicant and the complainant. Therefore it is not possible to identify with certainty the basis on which the latter evidence was admitted. While evidence of similar facts ordinarily involves conduct relating to persons other than the complainant, it is not necessarily so confined .... However, evidence which bears on the relationship between an accused and a complainant over a period of time may  not in truth be similar fact evidence where it is admitted, not to show propensity but rather the relationship between the parties. ...

In the present case, the real difficulty with treating the generalized evidence as evidence of similar facts or relationship is the problem of identifying the alleged offence on which the similar conduct or relationship is said to bear. As the evidence unfolded at trial, there was nothing to indicate that, in respect of each year, the Crown relied upon a particular act which was the culmination of other such acts. In that sense, there was no chronology of events...

The objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet ...

... as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of a failure to do so. The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count. The trial miscarried for that reason.”

As to the proviso, his Honour said at p. 283:-

“This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant ‘carnally knew’ the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves. In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count. There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.

In those circumstances it is inappropriate to apply the proviso.”

Gaudron and McHugh JJ. said, commencing at p. 284:-

“The rule against duplicitous counts in an indictment originated as early as the  17th Century ... It may be ... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ....

The rule against duplicitous counts has long rested upon a basic consideration of fairness, namely that an accused should know what case he or she has to meet...

The matters which go to the orderly administration of justice are not unrelated to the consideration that a duplicitous count may be productive of prejudice. If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury. There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one.

The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged. Two such problems were made explicit in Johnson v Miller. In that case one offence was charged, but the prosecution announced its intention of calling evidence of some thirty possible offences. Dixon J. pointed out that, unless similar fact evidence were admissible, the admission of  ‘evidence of 30 distinct offences will be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a law’. The second problem identified in that case concerned the different defences which might be available to the different offences in respect of which it was proposed to call evidence. In relation to that problem Evatt J. said that the course proposed by the prosecution would convert ‘a strictly judicial function - that of determining guilt or innocence of a singular offence - into an administrative commission of inquiry into the question whether ... when there were 30 possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all 30 occasions...’

The question of prejudice goes somewhat deeper than the question whether there was an effective denial of an opportunity to call alibi evidence. The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J. in relation to the course proposed in Johnson v. Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused effectively was denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstances.

Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be  occasioned by reason of uncertainty as to what precisely is charged. Ordinarily,  those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged ... However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice  ...

The trial of the applicant was fundamentally flawed by the evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. The rule as to the admissibility of evidence of offences, not being the offences charged, is clear. Such evidence, whether identified as similar fact evidence or by some other description, is only admissible if it has probative value  such that it raises the objective improbability of some event having occurred other than as alleged by the prosecution.  It is unnecessary to consider whether, on this basis, evidence of other acts of carnal knowledge might have been admissible at the trial. At the very least, ... it would have been necessary for it to have been made clear what acts were said to be the offences charged and what acts were said to be similar facts. Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.

The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts.  Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant’s guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty ‘would plainly have been the same’ ... That being so, it cannot be said that there was no substantial miscarriage of justice.”

These rather lengthy extracts from S identify two different problems, both of which emerge, to some degree, in the present case. They are:-

1. the lack of particularity of the allegations in respect of each count; and
2. the question of duplicity, where the evidence led identifies two or more apparent offences satisfying the description of a particular count in the indictment. 

Obviously, adequate particulars will avoid or remedy duplicity, but particulars are also necessary to a fair trial because they constitute notice to the accused of the charge which he must meet. Where there are allegations of numerous offences, only some of which are charged, particularity is especially important.  From the above extracts, one can identify a number of difficulties likely to be caused by inadequate particulars and/or duplicity. They include:-

1. embarrassment to the accused in having to defend himself in relation to an indeterminate number of alleged offences occurring on unspecified dates;
2. loss of opportunity for the accused to raise specific and effective defences such as, but not limited to the defence of alibi,  because the absence of specificity may deprive him of his capacity to know how he may answer such charges;
3. difficulty in determining the admissibility and/or use of “similar fact” or “propensity” evidence;
4. difficulty in ensuring that any verdict is unanimous as to its factual basis;
5. difficulty in ensuring that any verdict is based upon a particular event and not upon an inference drawn from a series of events or a perception of general disposition;
6. difficulty with subsequent pleas of autrefois acquit or autrefois convict, although some members of the court considered that s. 17 of the Western Australian Code (in terms similar to s. 17 of the Queensland Code) would obviate this problem;
7. difficulty in identifying admissible evidence;
8. difficulty in instructing the jury as to the law;
9. difficulty in identifying the appropriate offence for punishment in the event of conviction;
10. unfairness inherent in requiring the accused to defend himself in respect of any occasion on which an offence may have been committed;
11. loss of opportunity for the accused to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged were identified in relation to time or by reference to some other event or circumstance.

Some of the above considerations overlap. This is because members of the court in S expressed their various concerns in different ways. Many of these difficulties relate to the position of the accused in preparing and conducting his defence. Others, as suggested by Gaudron and McHugh JJ., relate generally to the administration of justice. Some relate to both aspects. One might add that particulars and absence of duplicity are also most important to an appellate court in considering challenges to a conviction, particularly, but not exclusively, where the ground is that the conviction is “unsafe”.

Brennan J. differed from the majority in that his Honour considered that it was possible to uphold the conviction by resort to the proviso. His Honour considered that:-

“The facts thus disclosed that, in each count, there was a latent ambiguity which was not removed by particulars, nor by an election by the prosecution to proceed on a particular act falling within the period specified in the count, nor by construing the count as relating to the first of the offences committed within the specified period (as Jacobs J. suggested in Mackay v. The Queen). To allow the trial to proceed without confining each count to a single act of intercourse was an error of law which, subject to the proviso in s. 689(1) of the Criminal Code (W.A.) entitled the applicant on appeal to an order quashing the conviction...” (p. 269).

His Honour discussed (and discounted) many of the concerns expressed by the other members of the court about the course taken at the trial. The reference to Mackay v. The Queen (1977) 136 CLR 465 is of some present significance. The court was there concerned with an indictment charging two men with one act of rape. The case was conducted upon the basis that each had committed a separate rape on the same woman.  The appeal was by only one of the two accused and focussed upon the validity of the indictment.   Jacobs J. said at p. 471:-

“It seems to me that in the present case there were two distinct and independent acts of rape, one committed by each accused in the absence of the other, and a joint count strictly could apply to one only of those acts. Therefore there was an error in the form of the indictment.

Such an error in the form of the indictment should not occur but it is quite clear that in the present case there was not any prejudice to the applicant ... Very importantly, there was no question of the applicant being charged with two offences - with his own act of penetration on the one occasion and with aiding and abetting his co-accused on another occasion.

Moreover, it is not correct that on this joint charge, even if it was bad for duplicity because it alleged two distinct and independent acts, the present applicant could not be convicted of the rape constituted by his own act of penetration. If the charge was technically defective for duplicity it is not correct that any conviction on the charge was bad. The prosecution could have been required to elect ... and in the absence of election the charge must be read as a charge on the happening first in point of time, that is to say, the rape committed by the applicant. .... This temporal rule ... is an old technical rule but it is apt to answer a wholly technical objection.”

The other members of the court in Mackay did not consider this matter.

In the present trial, at the close of the Crown case, counsel for the accused made application for particulars of count 1. Following a detailed consideration of the evidence, the Crown particularized that count as “an occasion in (the complainant’s) bedroom at night time when (the accused) put his wee into her wee.” It appears that these particulars were provided in the belief that the complainant’s evidence established only one such event.  His Honour was concerned, justifiably in my view, that the evidence may  have disclosed more than one such occasion. Relying upon the reference by Brennan J. in S to the decision in Mackay, the learned trial Judge suggested that the Crown should  particularize count 1 as, “the first occasion it happened in the bedroom in the night time”. The Crown Prosecutor was somewhat unwilling to accept this suggestion, but his Honour eventually persuaded him to do so.

The practice referred to by Jacobs J. in Mackay and by Brennan J. in S was a default procedure which would operate in the event that particulars were not given. In Mackay, there were only two acts of intercourse disclosed by the evidence. The theoretical problem was that the act charged against the applicant in the indictment could have been either his act of actual penetration or the act of penetration by the co-accused to which he was arguably a party.   Clearly enough, the trial was conducted on the basis that he was charged with the former. The “technical” rule referred to by Jacobs J. was appropriate to resolve the problem because the applicant’s act of penetration was first in time. Thus his Honour considered that any duplicity could be resolved by assuming that it was the act charged. Of course, this co-incided with the way in which the trial had been conducted. Whilst that solution may have been appropriate to resolve the technical complaint in Mackay, it is difficult to see how it would answer the serious concerns expressed by the majority in S. Unfortunately, neither the learned trial Judge nor the Crown Prosecutor adverted to the fact that these observations by Brennan J. found no favour amongst the other members of the court and that they were difficult to reconcile with their views.

In the present case, his Honour said in his charge:-

“Mr McGuire recognizes that even though the prosecution alleges one act of rape, he recognizes on the evidence you may take the view, or possibly take the view, that more than one rape occurred in the bedroom. In that case the particular was that it was the first event you were considering when it comes to delivering the verdict.”

His Honour had previously indicated that the Crown case was that the rape in the bedroom occurred at night time. Unfortunately, the complainant’s evidence was not of a particular incident which occurred in the bedroom at night time. In order to demonstrate this, it is necessary to return to the record of interview and her evidence. The Crown relied primarily upon a passage at p. 152 of the appeal record, but earlier passages assist in understanding it.  Firstly, at p. 151 of the record, the complainant was asked:-

“Can you remember what R did to you on, so can you remember how many times R had touched you?”

She replied:-

“Um every time my mum and dad went out.”

It is relevant at this stage to point out that the mother, Mrs R., said that she was then  working at the pizza parlour on two or three nights each week. In the overall context of the evidence, it is clear that the complainant was alleging that the offences occurred while her parents were at work at the pizza parlour.

At p. 152 of the record, the complainant was asked if she could remember “a couple of the times” on which the appellant had done things. She started by saying:-

“Yeah, well when I was in bed, he used to jump up on my bed and pull down my pants and stick his ah wee into my wee, and he tried to kiss my lips again.”

This is clearly  a description of repeated behaviour rather than of a particular incident.   Pages 152 to 154  must be read in that light.   At the bottom of p. 154 there is a reference by the complainant to “white stuff” which she says the appellant tried to make her “drink”. The evidence on pp. 155 and 156  indicates that although she may have seen such a substance (presumably semen) on a number of occasions, she remembered one particular occasion on which the appellant had put it on to her body, including her bottom. On that occasion, he did not try to penetrate her. It also appears from the evidence at the top of p. 156 that on one occasion, the appellant had tried to make her “drink” the semen.  On that occasion, the complainant was in bed.  There is no suggestion that there was any attempt at penetration.

The Crown case was that the passage commencing at the top of p. 157 should be construed as relating to a particular incident. In that passage, the interviewer referred the complainant to an incident of penetration in her bedroom  and asked at what time of day it had occurred. She said that it was at night and, as I have previously shown, she then volunteered that there had only been one such incident in the day. Although the interviewers had referred the complainant to one particular incident, it is not possible to discern any earlier reference by the complainant to a discrete  incident, as opposed to a course of conduct. The complainant’s  statement at pp. 162-165 highlights her difficulty in identifying specific incidents.

Although there are isolated passages where the complainant momentarily appears to identify a particular occasion, more often than not she is merely reflecting an assumption in that respect made by the interviewer.  The overall thrust of the evidence is clearly of regular, repetitive misconduct. No fair reading of the evidence could lead to any other conclusion. I have also listened to the tape, and nothing contained therein leads me to a different conclusion.  

In  her  cross-examination, the complainant said at p. 29 that penetration had occurred three times in her bedroom and twice in his. In reading the transcript, one might have some doubts about how this evidence should be taken in view of the fact that counsel initially asked about incidents in “your (the complainant’s) bedroom” when he apparently meant “his(the appellant’s)  bedroom”. However  the complainant answered differently to each question and in the course of argument, both counsel  referred to this evidence without suggesting that it should not be taken at face value.  The evidence from the complainant and her mother leads to the conclusion that all (or all but one)  incidents of penetration must have occurred at night time. The complainant referred to one incident during the day, but the Crown case was that all incidents occurred while the mother was at work, which was at night time. It is possible that her night work involved some absences during daylight hours, but there is no evidence to that effect.  There are, one would imagine, a relatively limited number of places in which these acts could have occurred. The complainant suggested only three locations. 

Although it is possible to take short passages from the complainant’s evidence and argue that they identify a discrete act of penetration in the bedroom at night time, the thrust of the evidence is clearly otherwise. Only a strained reading of the evidence would permit such an interpretation. In reality, the complainant’s evidence is, almost exclusively, of a course of conduct rather than of individual incidents. Those conducting the interview tried to particularize the incidents, but they seem to have had little success. Occasionally, their efforts led them to make assumptions in questions, which assumptions were not justified by the complainant’s previous answers, resulting in unintentional distortion of her meaning.

In the circumstances, the learned trial Judge’s attempt to further particularize the Crown case was both prudent and justified by the evidence. However, as I have previously observed,  I do not see how the course adopted could have ameliorated the various concerns expressed by the majority in S.   Further, identifying the subject of count 1 as the “first” occasion in the bedroom at night merely highlighted the fact that there were many other similar acts of misconduct. The complainant was unable to identify the first such occasion, so the jury certainly could not do so.

It may be thought unhelpful if I depart from this point without attempting to give some indication of how the requirement for particularity could have been met in this case. It is not necessarily easy, or even possible to do that. Sometimes,  the available evidence may be such that it is simply impossible to formulate a charge with the degree of particularity required for the purposes of the criminal law. This is, by no means, a common occurrence. One knows from experience that even quite young children are often able to particularize incidents by reference to location, or to the clothes which were being worn at the time, or to other events such as birthdays, Christmas, visits by or to relations, or incidents at school. Indeed, in the present case, those investigating the matter tried to fix events in this way, but they derived either no relevant response or contradictory answers. The difficulties which they experienced  appear to have been greater than those normally encountered in cases of this kind.

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 judgment.

In the circumstances, I consider that count 1 was inadequately particularized, especially having regard to the latent ambiguity disclosed by the evidence. This led to the trial on count 1 being unfair. The verdict on that count is suspect, to say the least.  For the reasons given in S it would not be appropriate to rely upon the proviso. The conviction should be quashed. I cannot see any way in which the Crown case can be improved so as to meet the requirements prescribed by the High Court in S. A retrial is therefore pointless. I would enter a verdict of “not guilty” on this count.

There was a belated challenge to the adequacy of the particulars of counts 2 and 3. Those  offences were said to have occurred on one occasion in the lounge. Although there was some suggestion of an act of anal penetration in the appellant’s  bedroom and of another attempt at penetration, there is evidence of only one act of actual penetration in the lounge. The  alleged occurrence of both offences in one transaction helps to particularize both. Although there are no particulars of the date, I do not consider that, by itself, to be a sufficient basis for upsetting the verdict. Both charges were, in my view, sufficiently particularized, subject to there being appropriate directions concerning the lack of evidence as to when they occurred and pointing out the difficulties for the appellant in those circumstances.

THE DIRECTIONS

An attack is also made upon the learned trial Judge’s charge to the jury.  It  is, in effect, that no direction was given to them as to the proper use of so-called “similar fact” evidence. Although it may, to some extent, depend upon the view taken of what the complainant was trying to say, there was a fairly substantial amount of such evidence. The following is a summary of the evidence which may fit that description:-

1. that the appellant touched the complainant every time her parents were away;
2. that he would jump on her bed, remove her pants, place his penis into her vagina and try to kiss her;
3. that on occasions, he ejaculated and on one occasion, tried to make her take his ejaculate into her mouth;
4. that on at least one occasion, he transferred his ejaculate on to her body;
5. that on one occasion, he put his fingers into her vagina.
6. that he engaged in such misconduct every night when the complainant’s stepfather was away;
7. that penetration occurred three times in the complainant’s bedroom, twice in the appellant’s bedroom and at least once in the lounge;
8. that he penetrated her anally in his bedroom and tried to do so on another occasion.

This ground of appeal raises two questions: firstly, as to the directions which ought to have been given with respect to “similar fact” evidence and secondly, as to the adequacy of the directions which were given on that subject.   There was no challenge to the admissibility of the “similar fact” evidence, although in view of the failure of the appellant’s counsel to convince the learned trial Judge that further particulars of count 1 were required, it may  have been difficult for him to address the question of admissibility.  Much of the evidence was really evidence of the appellant’s course of conduct over the whole period with some, largely unsuccessful attempts to make the evidence look as if it were of particular incidents.

In R. v. W (C.A. No. 349 of 1997 - judgment delivered 21 November 1997)  Pincus J.A. and Muir J. considered  the history of the use of evidence of uncharged sexual misconduct by an accused upon a complainant. (Obviously, different considerations arise where the evidence is of uncharged misconduct with somebody other than the complainant.) Their Honours concluded that such evidence was admissible, “as evidence of the existence of a sexual relationship between the parties”. Sometimes, this has been described as evidence of the existence of an “unnatural and abnormal passion”, (B v. The Queen (1992) 175 CLR 599 at p. 602) or as evidence to “set the background in which the jury were to evaluate the daughter’s evidence and ... remove some of the natural reserve that the jury might otherwise have felt in accepting an allegation that the accused had indulged an abnormal passion for his daughter.” (B, at pp. 604-605.)  In the present case, I doubt whether the appellant’s conduct could be said to demonstrate  any particular “passion” for the complainant or a “relationship” between them.  It rather revealed unbridled youthful desire or sexual interest, and a lack of moral and social inhibition, perhaps attributable to an unusual  disparity between his degree of moral and  social maturity on the one hand and his physical, especially sexual maturity on the other. Such evidence demonstrates little more than  propensity.  Therefore some other basis for admissibility must be sought.

In W, their Honours referred to the admission of such evidence as “showing circumstances constituting a continuous course of action of which the offence charged was one link in the chain”, or “a connected series of events ... which should be considered as one transaction”. In order to form a fair assessment of the reliability or otherwise of the evidence of the complainant in this case, it may have been necessary to understand that she alleged such an ongoing series of events. See R v. Dolan (1992) 58 S.A.S.R. 501, per King CJ. at p. 503.

Whatever the appropriate use, it should have been  explained to the jury.  It was also  necessary to address the question of the possibility of its being misused.   Where propensity evidence comes from the complainant, it will not have the additional potential vice of appearing to be independent corroboration.  In the present case, however,  there was a real possibility that the jury would take it as evidence of propensity and infer guilt from that.  There was also the risk addressed in S that the jury would merely assume that since there were so many allegations, some of them must have been true. It was evidence of a kind which has long  been recognized as having a potential for undue prejudice, and although this may not lead to its exclusion where it has an appropriate purpose, it is well-established that the receipt of such evidence must be accompanied by precise directions as to the use which  may  be made of it and, where appropriate, as to inappropriate uses. 

The jury should have been told that they had heard evidence of a series of events occurring over months, but that the focus of their attention on each count must be the specific offence as particularized, and that they must be satisfied of all of the elements of that specific offence beyond all reasonable doubt. They should have been told not to draw conclusions as to  guilt from their general views of the appellant’s conduct, and they should have been warned against drawing inferences from any perception of propensity.   They should have been told that the evidence of other acts had no value in proving any of the individual counts other than as demonstrating that the complainant’s allegations of  specific offences were made in the context of her account of a longer course of  misconduct over an extended period.  It should probably also have been pointed out that the fact that the complainant alleged numerous acts of misconduct did not  bolster her evidence with respect to the offences charged.

These are not definitive or exhaustive statements as to appropriate directions in a case such as this. They are rather an attempt to demonstrate my approach to assessing the adequacy or otherwise of the directions which were  given. The relevant direction is at p. 82 of the record. His Honour made clear that each of the counts related to “particular events”. He said:-

“It is not possible, for example, with regard to the first charge for you to just, as it were, throw up a whole lot of facts in the air so they come down between all of you, indicating a guilty verdict. You have to concentrate on a particular event the Crown alleges. Mr McGuire recognizes that even though the prosecution alleges one act of rape, he recognizes on the evidence you may take the view, or possibly take the view, that more than one rape occurred in the bedroom. In that case the particular was that it was the first event you were considering when it comes to delivering the verdict. The reason is that the law demands there be precision about the actual event on which you are to render a verdict. It is true, of course, in this case, that you have heard, as it were, the whole story. What that really means is that you are concentrating on one act, whether it happened or not and that is a matter for you. The rest is all background and similar facts for you to take into account.”

This passage touches upon a number of the points which I have made above.  It deals with the need to distinguish between the overall narrative and the incidents which are the subjects of the various charges. It also deals with the use which might validly be made of the evidence in question by referring to it as “all background and similar facts”, although I am not sure that a jury could reasonably be expected to know precisely what was meant by the expression “similar facts”.  There is, however, no  attempt to distinguish between  the evidence going directly to the offences charged and the “background” evidence.  Had an attempt been made to do this, it would have demonstrated the very serious difficulties in connection with count 1, namely the almost total absence  of any evidence which could be said to relate to a specific event identifiable as constituting that offence. Further, the directions do not deal with the dangers traditionally thought to be associated with evidence of this kind.   They say nothing concerning possible misuse of it.

There was no request for re-directions.  However, out of fairness to defence counsel, it must be conceded that, his submissions as to particularity on count 1 having failed, it may well have been very difficult to identify the appropriate directions to be given.  In W, there had also been no request for a redirection but the court felt compelled to intervene by the decision of the High Court in BRS v The Queen (1997) 71 ALJR 1512.  In that case, McHugh J. said at p. 1528:-

“Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. It is no answer that the directions which were given or not given gave the accused a better chance of acquittal than the directions that the law required. A person is entitled to be tried according to law. If the failure to give a required direction may have brought about the accused’s conviction, then there is a miscarriage of justice.”

In any event, the true problem in this case was the broader issue of the need to concentrate upon the specific offences charged and to distinguish between the evidence going directly  to those charges and the evidence of other misconduct. The failure to do this, both by way of particulars and by way of appropriate directions, almost  certainly led the jury to fail to scrutinize the evidence in an appropriate way.  I also consider that the failure to warn the jury about the dangers of prejudice was, by itself, a serious threat to the prospects of a fair trial. The convictions on counts 2 and 3 should also  be set aside.

UNSAFE AND UNSATISFACTORY

It is also asserted that the convictions are unsafe and unsatisfactory in the administration of justice because of inconsistency between the evidence of the complainant and the medical evidence and  other inconsistencies in her evidence. I will deal with these matters in considering whether there should be a new trial. Complaint is also made in this context of the lack of particularity and the prejudicial effect of the evidence of other sexual misconduct. Reliance is also placed upon what is described as, “the unusual pressing of the jury for their verdicts by the learned trial Judge”. I have said enough about the lack of particulars and the potential for prejudice inherent in some of the evidence.  At any retrial, it will be necessary for the trial Judge to consider the basis of admissibility of the “similar fact” evidence and the possible exercise of the discretion to exclude it. His or her decisions will be influenced by the way in which the Crown particularizes each charge.

As to  “pressing”  the jury for their verdicts, some aspects of the course taken by the learned trial Judge were, in my  view, unfortunate.  There are occasions on which it is necessary for a trial Judge to enquire of a jury whether it is likely that there will be a verdict in the near future. This occurs, for example, when it is likely that the jury will require a meal. The time involved in catering for twelve people necessitates a decision some time in advance as to whether such arrangements should be made.   It is the practice to enquire of a jury  whether or not it is appropriate to make arrangements for them to have a meal in, say, the next hour.   There is, however, a practical difference  between this situation and that in which a trial Judge is considering whether to arrange for the overnight accommodation of a jury. Experience suggests that some people, understandably,  feel that overnight sequestration may be an undue imposition upon themselves or others. A juror who would not compromise  for the sake of his or her own convenience might feel greater pressure to meet the convenience of others by departing from a view which has not found general favour.  That pressure may increase if the jurors are given a period of time to think about it. If they are asked to consider the matter for  another hour and then to report on the state of their deliberations, against the background of their possibly being sequestered overnight, there is a real risk that a juror or jurors may feel pressed to find a speedy resolution.  

To say this does not necessarily reflect upon the conscientiousness of jurors. It merely recognizes the reality that many people feel obliged to meet the convenience of those around them. It is undesirable that members of a jury should have this additional pressure placed upon them in the course of their deliberations or that there should be a perception of any such pressure.   A trial Judge must often address this problem.  It may  sometimes be inappropriate to raise the question with the jury before making the decision. It is the Judge’s responsibility to ensure that  extraneous pressures are not brought to bear upon a jury. This is best done by acceptance of that responsibility and of the fact that avoidance of undue pressure on jurors may, on occasions, involve some inconvenience to them and to the court.

NEW TRIAL

Two of the matters raised above require comment as they  may  bear upon the question of a new trial.  They are:-

1. internal inconsistencies in the complainant’s evidence;
2. discrepancy between the evidence of the complainant and the medical evidence.

I have already indicated that I consider it inappropriate that there be any new trial on count 1 because the complainant’s evidence does not permit even a minimal degree of particularization. The same criticism does not apply to counts 2 and 3. There are inconsistencies in the complainant’s evidence which might well cause a jury to have a reasonable doubt about the guilt of the accused, but the inconsistencies are not so directly and fundamentally relevant to  counts 2 and 3 as to lead to the conclusion that there should not be a new trial.  Whilst there may be grounds for serious criticism of the reliability of the complainant’s  evidence as a whole,

her age must be kept in mind.   I do not think that the many valid criticisms of her evidence would necessarily, by themselves, lead to the quashing of any conviction on either of counts 2 or 3.

The discrepancy between her evidence and the medical evidence is a different matter.  The Crown must accept that the medical evidence is generally inconsistent with the complainant’s evidence of vaginal  penetration. It is true that the doctor, at some points, appears to  be speaking of penetration as meaning penetration of the hymen rather than of the vagina, but the distance in question is very small, about one centimetre. It is possible to conceive of penetration sufficient to satisfy the requirements of the criminal law without any penetration or touching of the hymen, but  the complainant’s evidence is not of one tentative attempt to penetrate her. It is of numerous penetrations associated with “in and out” movements. It is, in my view, most unlikely that the appellant could have frequently penetrated the complainant in this way without his having, at least on some occasions, applied force to the hymen. It is more likely, given the absence of damage in that area, that there was no penetration and that any pain was attributable to some other aspect of the appellant’s conduct.  Given the complainant’s age, it cannot reasonably be expected that she would understand with precision either the difference between actual penetration and proximity or the very great significance of the distinction for legal purposes. Further, her initial complaint was of licking and in the interview, both she and the interviewers referred  frequently to the appellant’s “trying” to penetrate her rather than to actual penetration.  In those circumstances, it may be doubted whether the complainant was distinguishing between those different circumstances.  

Robinson’s evidence discloses an apparent admission by the appellant that he “raped” the complainant, but it would be dangerous to give great weight to this evidence as proving penetration. Although penetration is a necessary constituent of rape for legal purposes, the Shorter Oxford Dictionary shows that the word may have a broader meaning.  In any event, given the age of the appellant and the circumstances of the conversation, it is likely that the appellant was admitting sexual misconduct of some kind, but not necessarily penetration.  Further, even if he be taken to be admitting penetration, that would not prove penetration on any specified occasion.  The medical evidence must also be kept in mind.  For these reasons, I am of the view that any conviction of rape on count 2 would be unsafe.  In view of the jury’s verdict on count 3 there can, of course, be no new trial on any charge alleging actual anal penetration.                With the considerable benefit of hindsight, it seems to me that on counts 2 and 3, the evidence is also unsatisfactory on the element of intention to penetrate. The absence of any physical evidence of penetration causes one to ask why, if this sixteen year old boy had attempted to penetrate this six year old girl on numerous occasions, he should have been so unsuccessful. She could hardly have been able to resist him. She seems to have suggested that on occasions, he desisted in the face of her reluctance. The frequent references in the evidence to his “trying” to penetrate her reflect her interpretation of the appellant’s conduct and the interpretation by her interviewers of her earlier statements. No doubt because of her age, she was not questioned closely about the basis for her opinion. The absence of particularity in the evidence makes it difficult to know upon what basis the complainant concluded that the appellant had tried to penetrate her rather than that he had indulged in sexually suggestive conduct.   Once it is accepted that the evidence of penetration is unreliable, the only evidence of any attempt to penetrate is the complainant’s opinion that he was trying to achieve that end.  I cannot see how a jury could conclude that on any specified occasion, the appellant had intended to penetrate the complainant, either vaginally or anally, rather than merely to indulge in sexually oriented horseplay including, perhaps, simulated sexual congress. 

NEW TRIAL

I would limit any new trial on counts 2 and 3 to charges of indecent assault pursuant to s. 337 as it was at the time of the alleged offences, but without the circumstances of aggravation contemplated by sub-s. 337(2).   Indecent dealing, pursuant to s. 201 as it then was, would be available as an alternative verdict. See s. 578(3). Whether or not the Director proceeds with a new trial is, of course beyond the direct concern of this court. However any new trial will not be without cost to the complainant. Further, the appellant was only 16 at the time of the alleged offences. At the end of the previous trial, he was  sentenced to a total of twelve months’ detention in connection with certain property offences as well as being sentenced on the present charges. He has, presumably,  spent five months in custody. He continues to be liable to serve the sentences for the property offences.  It may be that in all of the circumstances,  having regard to the state of the evidence and the nature of the charges to be laid at any new trial,  the Director will  consider that no good public purpose would be served by so proceeding.

SENTENCE

There is an application for leave to appeal against sentence. Insofar as concerns the three charges of sexual offences, it is not necessary to consider that application. As I have already mentioned, the appellant was also dealt with for property offences, including five counts of housebreaking and five counts of stealing. In the appellant’s outline of submissions, it is submitted that the sentences for those offences were made cumulative upon the sentences in respect of the sexual offences. If this were correct, it may have posed a problem in that the  time served to date would be attributable to the sexual offences and not to the property offences. In those circumstances, it may have been appropriate to reduce the sentences relating to the property offences to ensure that time already spent in custody effectively went in reduction of time to be served for those offences.  However the record indicates that the  sentences for the sexual offences were made cumulative upon the twelve months’ detention  imposed for the property offences.  Thus the appellant has been serving that latter period, and not that imposed for the sexual offences. The sentences for the property offences were not otherwise challenged.  In those circumstances, the application for leave to appeal against sentence should be refused.

ORDERS

I propose the following orders :-

1. Allow the appeals against conviction on all three counts.
2. Quash all three convictions and the respective sentences.
3. Enter a verdict of “not guilty” on count 1.
4. Order a retrial limited to charges of indecent assault on each of counts 2 and 3.
5. Refuse the application for leave to appeal against sentence.  

INTERVIEW TECHNIQUE

I should like to add one further comment concerning this matter. Although the two persons who interviewed the complainant made intelligent and sensitive attempts at the very difficult task which they faced, it is plain that they failed. The task required both a detailed understanding of the relevant law and of the procedural safeguards of the criminal justice system.  It also required experience in dealing with young children. This combination of knowledge and skill is not likely to be readily available for investigative purposes unless the government fosters an extensive training programme for those who are to be involved in such investigations.