R v E[1999] QCA 58

[1999] QCA 58

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 370 of 1998

Brisbane

[R v E]

THE QUEEN

v.

E

Appellant

McMurdo P

Thomas JA

Mackenzie J

Judgment delivered 5 March 1999

Judgment of the Court

1. APPEAL ALLOWED.

2. NO NEW TRIAL IS ORDERED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 March 1999

1. This is an appeal against conviction in respect of four offences of indecent dealing with a girl under the age of 16 years with a circumstance of aggravation that she was under 14 at the time of the offences.  The offences were alleged to have been committed between 1 January 1979 and 31 December 1980 when the appellant was about 50 years of age and the girl five or six.

2. The offences were alleged to have occurred when she went to his house, which she did frequently.  Unparticularised evidence of indecent dealings other than those charged was given by the complainant.  She said that the conduct continued for about 1½ to 2 years about once a week.

3. Count 1 is alleged to have occurred in the kitchen on a weekend.  The appellant had sent her brother to the shop to buy a drink.  While he was away the appellant began to talk about bellybuttons and asked the complainant if he could touch her there.  She agreed and he then put his hand on the area of her vagina, outside her clothing.  He then desisted and told her not to say anything.  She went home and did not complain about the incident.

4. Count 2 is alleged to have occurred in the spare bedroom.  The allegation is that the appellant touched the complainant, skin on skin, in the vaginal region.  He then obtained a shaving brush and rubbed it up and down in the area of her clitoris.  He then gave her the brush and asked her to do what he had been doing.

5. Count 3 is alleged to have been committed in the main bedroom.  The allegation is that the appellant felt her vaginal region, first by pushing her knickers to the side and then by taking her lower garments off.  The conduct was interrupted by the return of the appellant’s wife.  The complainant dressed and was in the lounge room by the time the appellant’s wife came upstairs.  The complainant then went home.

6. Count 4 is alleged to have occurred under the house.  The allegation is that the appellant put her on the washing machine, pulled her pants to the side and felt her vaginal area.  She gave evidence that the downstairs area was enclosed at the time of the offence although previously it had been an open area.

7. The complainant gave evidence in accordance with the allegations in respect of each count.  She said that the first offence occurred during summer and although she was unclear about dates the evidence is to the effect that it happened perhaps in late 1979 or perhaps in early 1980.  The period in the indictment is thereby reduced, on the evidence, to 12 months or a little more.  The complainant also gave evidence that to the best of her recollection the appellant did not have a beard at the time of the offences.

8. The complainant also gave evidence that one day, “out of the blue", her brother came into her bedroom and asked her if the appellant was engaging in sexual activities with her.  She admitted that he had touched her but said he had not “had sex” with her.  Her brother went to tell their mother who forbade her going next door unless the appellant’s wife was home.  However the complainant’s mother denied in evidence ever telling her daughter not to go to the appellant’s house.

9. The complainant’s brother gave evidence that one afternoon after school he and the complainant were at the appellant’s house.  He had been sent downstairs to look for a tool.  When he returned he saw the appellant rubbing the vagina of the complainant, whose pants were down.  He gave evidence that, in effect, he rescued his sister and they ran home.  Soon afterwards he went into her room and spoke to her about what had happened.  She asked him not to tell anyone and he complied with her request.

10. This account apparently relates to a different incident from any recounted by the complainant and does not coincide with the complainant’s evidence as to the circumstances in which she and her brother discussed the appellant’s behaviour.  He said it occurred in the period 1979 to 1981, at a time when the area under the house was enclosed.

11. The defence case was a denial that any of the conduct alleged took place.  The appellant gave evidence himself and called other evidence with a view to establishing that he had a beard for all but a short period of the two years spanned by the indictment, that the area under the house was not built in until after the last offence had allegedly occurred and his state of health during part of the period covered by the indictment.

12. The jury would probably have found the medical evidence of little assistance in his favour.  The evidence was that he had a heart attack in September 1978 and then presented on 6 June 1979 to his family doctor with depression, impotence and loss of sex drive.  He was sent to a psychiatrist in mid-July 1979 and, although the evidence is not very detailed, subsequently received shock treatment and was working again a couple of weeks after that.

13. The evidence concerning his beard was that he had a beard for most of the period alleged in the indictment.  However there was a period of unspecified duration at about the time of his son’s wedding on 6 December 1980 when he was clean-shaven, having come under pressure to shave his beard off for the wedding.  There was photographic evidence of him with a beard, apparently in the first half of 1978, and of him clean-shaven on the day of the wedding.

14. With respect to the closing in of the area under the house there was evidence, which was not challenged, that that had happened in late 1981.  The appellant’s daughter-in-law said she had a vivid recollection that it was about 10-12 months after she was married and that her father had done the work over a period of 2-3 months.

15. Ground 1 is that the verdicts are unsafe and unsatisfactory.  Consideration of this ground will be deferred until other grounds have been dealt with.

16. Grounds 2, 3 and 4 may conveniently be considered together.  Ground 2 is that the learned trial judge erred in admitting evidence from the complainant of sexual misconduct of a general and non-particularised nature.  Ground 3 is that the learned trial judge erred in admitting the evidence of the complainant’s brother.  Ground 4 is that the learned trial judge erred in directing the jury that the evidence of the brother was potentially corroborative of the general and non-particularised allegations of sexual misconduct made by the complainant where the evidence was not potentially corroborative of any of the counts in the indictment.

17. The legal argument prior to the Crown opening is not transcribed and the ruling does not elaborate on the basis upon which the evidence was held to be admissible.  However in summing up the learned trial judge told the jury that the evidence of the complainant if accepted went “somewhat to explain on the Crown case the incidents in the counts were not in fact isolated incidents".  He said "The Crown says they were incidents punctuated by other activity with a sexual orientation of conduct of a similar flavour although the incidents were not the subject of specific description” by the complainant.  Later he told the jury that if the evidence of the complainant or her brother as to matters not the subject specifically of a charge was accepted it went only to the question whether the accused had an unnatural attraction to the complainant.  He went on to say that, if accepted, it showed that the counts in the indictment were not necessarily isolated incidents and demonstrated that there was an ongoing and unnatural passion or attraction to conduct of the kind alleged in the counts.  Later, in summarising the defence submissions he reminded the jury that he had previously directed them that before the brother’s evidence could be acted upon it must be accepted beyond reasonable doubt and could only be used, if accepted, to suggest that there was something of an unnatural relationship manifested by the accused towards the complainant.  In  our opinion the evidence was properly admitted for this purpose.

18. The evidence of the complainant's brother was relevant to the issue of whether there was a sexual attraction on the part of the appellant to the complainant, to show the relationship that existed between the parties, and to provide the context in which the particular charged offences occurred (R v Schneider (CA No 128 of 1998, 2 October 1998) para 31; R v W (CA No 476 of 1997); R v K (CA No 64 of 1998, 23 June 1998)).  The learned trial judge was not in error in admitting the evidence.

19. Nor was the learned trial judge in error in directing the jury that the brother’s evidence was potentially corroborative of the general and non-particularised allegations of sexual misconduct.  The point argued on the appellant’s behalf in this regard was that since the evidence of the brother was not potentially corroborative of any counts in the indictment it was an error to direct in the manner adopted by the learned trial judge.  In our view the fact that there was corroborative evidence of the existence of  a sexual attraction was supportive of the evidence of the plaintiff.  The existence of the attraction was an admissible fact which was in turn relevant to the jury’s consideration of the complainant’s claims that she had been indecently dealt with on the occasions particularised in the indictment.  The use of the word "corroborative" was unfortunate and might at first glance be thought to have raised a false issue.  However counsel took no point of this kind, conceding that the word had been used in a non-technical way as equivalent to having a tendency to support the evidence of the complainant.  The ground of appeal is not made out.

20. Ground 5 is that the dates of the offences alleged in the counts were an essential element of the Crown case and that the verdicts were inconsistent with the evidence of two critical matters, whether the accused had a beard and the enclosure of the lower level of the appellant's house.  This ground may conveniently be considered in conjunction with ground 1, that the verdicts are unsafe and unsatisfactory.

21. At the commencement of the hearing the appellant’s counsel was given leave to argue two other matters.  The first was that the direction with respect to the use which might be made of evidence of good character was inadequate.  The second was that the learned trial judge had failed to direct the jury as to the difficulties faced by an accused person in defending a charge when the complaint related to events many years ago, the complainant was very young at the time of relevant events and the period over which it was alleged the offences occurred was so lengthy that the means of testing the complainant’s allegations by reference to other events was effectively denied to him by the lapse of time.

22. Evidence of good character may be adduced by an accused as a matter of fact making it unlikely that he committed the offence charged (Attwood v The Queen (1960) 102 CLR 353; Simic v The Queen (1980) 144 CLR 319).  There is no rule of law that in every case in which evidence of good character is given the trial judge must give a direction as to the manner in which it can be used.  However, speaking generally, it is wise to give such a direction if asked for (Simic; Schmahl (1965) VR 745).  One focus of evidence of good character is the consideration whether a person of good character would do the acts alleged by the Crown (R  v Thompson [1966] QWN 47; Nilon (1980) 5 A Crim R 385).  Another is the credibility of the accused’s account of relevant events, if one is given (Nilon).

23. The assistance a jury derives from evidence of good character may depend on the issues in a particular case.  However, in a case where a direction is given on the use to which evidence may be put it is important for the jury's attention to be drawn to both aspects. 

24. In his directions on the law the learned trial judge told the jury that possession of good character was primarily a matter going to the credibility of the accused, "that is as to whether  you accept or reject his evidence having a bearing on the probability or improbability of his guilt".  He then told them it was evidence they may consider and if they accepted he was of good character then the law required them to take that into account.  He said that whether the evidence actually assisted the accused depended on the nature of the evidence itself and the strength of the case that the jury found against him. 

25. The next morning, while reminding the jury of defence counsel's submissions he said that counsel had suggested that the appellant had a character which indicated conduct and a reputation quite contrary to that of a person who would allegedly have committed offences  of the kind that had been mentioned.  Shortly afterwards he reminded the jury that the Crown Prosecutor had said that it was a matter of common knowledge that people regarded as being of good character could commit offences, and that the character witnesses did not really assist  as to the issue before them. 

26. The first reference, which had the authority of a judicial statement of the use to which the evidence might be put, focuses on the credibility of the accused in the context that evidence of good character bears on the question whether the jury accepts or rejects evidence having a bearing on the probability or improbability or his guilt.  Standing alone the direction is insufficient to draw the attention of the jury to the other important aspect of character evidence.  The  passage summarising defence counsel's submission, which appears to recite a correctly formulated submission on the aspect not dealt with by the learned trial judge, was unlikely to have made it plain to the jury that the evidence of good character had two aspects to it.  The direction on the use of the character evidence fell short of what was desirable in the circumstances of the case.

27. The second additional matter for which leave was given concerns the failure to give a suitable direction of the kind referred to in Longman v The Queen (1989) 168 CLR 79.  The principle is stated in the following passage from the joint judgment of Brennan, Dawson, and Toohey JJ in Longman, 91:

"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to it -----.  That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial.  After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay ----- and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."

(See also McHugh J, 108-9).   

28. The fact that there is some evidence supportive of the complainant, in the form of her brother's evidence that he observed what must have been an uncharged act of indecently dealing, does not necessarily deprive the appellant of the right to a sufficiently strong direction about the possible consequences of delay (R v Aristidis Court of Appeal (unreported) CA No.227 of 1998, 18 December 1998).  In such a case, whether such a direction is necessary will depend on an individual assessment of the issues in the case. 

29. In addition to the usual risks in cases of this kind there was also the factor that evidence was called by the defence to prove positively that the accused's evidence was wrong on verifiable matters, or at least to cast doubt on its accuracy.  It is often the case that an accused in this kind of case is deprived of the opportunity to challenge the complainant's evidence by reference to objective events by reason of lack of a timely complaint. 

30. In the present case evidence was led that the area under the house was not closed in at the time when the last offence was alleged to have been committed, according to the complainant's evidence.  There is no reason to think that the evidence, which was not challenged, could be rejected as inherently unreliable or wrong.  From the learned trial judge's summing-up with regard to the Crown Prosecutor's submissions, it appears that the Crown Prosecutor simply submitted that the issue whether the house was blocked in or not was irrelevant and of no assistance to the jury in determining the real issues in the trial.  Such a submission seriously underestimates the importance of evidence of contradictory objective facts in a case of this kind.  No comment was made on it by the learned trial judge. 

31. Further the complainant's evidence was that to the best of her recollection the accused was clean shaven at the time of the offences.  Evidence was led that for most of the period covered by the indictment the appellant had a beard.  While the evidence is not clear as to the precise date he shaved it off, his son's wedding on 6 December 1980 was the event which caused it to be shaven off.  This is inconsistent with the appellant being clean shaven at the time of the first offence at least on any reasonable view of the facts.  The Crown Prosecutor made the same submission regarding this evidence as he made concerning the structure of the house.

32. The situation to be addressed in summing-up was that the offences were alleged to have occurred about 19 years previously, when the complainant was only 5 or 6 years of age.  The difficulties inherent in meeting complaints after such a lapse of time remained.  However, despite that, the appellant had led substantial unchallenged evidence tending to contradict material aspects of the complainant's description of the appellant's appearance and of an area of the house where one offence was alleged to have occurred at times when the offences allegedly occurred.

33. The case was one where the appellant was entitled to a summing-up which gave a warning with the full weight of judicial authority that it would be dangerous to convict on the evidence of the complainant unless the jury scrutinising the evidence with great care, considering the circumstances relevant to its evaluation (including the defence evidence) and paying heed to the warning were satisfied of its truth and accuracy (Young (1996) 90 A.Crim.R.80, 87).  The summing-up contained a passage in the general directions in the following terms:

"It is obvious that there has been a very significant delay in bringing these matters to Court.  The events occurred approximately 18 years ago.  You should take extreme care on that account in assessing the evidence simply because of that long delay.  The frailty of human memory after long delays is something which will be known to you as a matter of collective experience, and you must take that into account in assessing the evidence."

34. Then in reminding the jury of the submissions of defence counsel, he said the following:

"He referred to the frailty of recollections and reliability of people after such long delays.  He reminded you correctly that E was not obliged to give any evidence, and that it was for the Crown to prove the allegations between the dates that were alleged.

He referred to the fact that the Crown case really did not identify when it was within a two year period even on their allegations, the events allegedly took place.  There was no identification of day, week or month that the events allegedly occurred.

-----

He said it was not unusual for complaints to be made after such very long delays, but not possible to provide any real explanation as to why that had been done.

He asked you to evaluate the evidence of the witnesses carefully, and in particular, having regard to the very long period that had elapsed."

35. He also repeated submissions of defence counsel with respect to the issues of the beard  and the closing in of the area under the house, without any emphasis on the importance of those issues in resolving the case. 

36. In referring to the Crown Prosecutor's submissions he said the following:

"Mr Lynham, on behalf of the Crown, admitted straight away, that the case was one which had some antiquity about it - an old case - but suggested that that did not mean that what allegedly was recalled was incorrect.  Persons might not be able to recall specific times, days of the week, but the substance of the recollection, he suggested, you would find would have the capacity to remain in someone's memory.

He submitted for your consideration that a person of five or six years of age is not going to have a very clear recollection of matters of detail after 18 or 19 years, and that you would not expect that there would be a specific reference to time periods.

He asked rhetorically, "Does the fact that detail cannot be recalled mean that the allegations have been made up?".  He referred to the fact that the allegations involve four incidents at four different locations within the house, that the evidence was quite specific as to the elements of the charges."

37. In our view, the summing-up was inadequate to emphasise to the jury essential matters to which they should have regard in a case of this kind and the appeal must be allowed for that reason.

38. The remaining question is whether there should be a new trial.  This raises similar issues to those involved in considering whether the conviction would have been unsafe and unsatisfactory in the absence of deficiencies in the summing-up (Grounds 1 and 5).  There are difficulties with the Crown case.   All counts depend upon acceptance of the complainant as an accurate and reliable witness.  The periods particularised in the indictment and referred to in the complainant's evidence as the period when the offences occurred are inconsistent, in the case of count 4, and most probably inconsistent, in the case of count 1, with facts proved by the defence without challenge by the Crown.   The time at which the area under the appellant's house was blocked in and the time when the appellant's beard was shaved off are objective facts.  The only evidence is that these acts occurred at times inconsistent with the case to which the Crown was committed by the evidence.   The former occurrence is probably verifiable by reference to objective facts and the occurrence of the latter in proximity to the wedding is unlikely to be significantly challengeable.  This creates a serious problem for the Crown case since it is locked into a particular time span and there is substantial evidence inconsistent with the complainant's evidence on matters bearing on the accuracy of her account. 

39. The appellant is in ill health and is 68 years old.  The events in question are said to have happened 19 years ago; a complaint was made to police in 1997, not by the complainant but by her father; the appellant was then subjected to the present charges which resulted in a three day trial.  The Crown did not suggest that the conduct in question was of a serious enough level to warrant a custodial sentence; and on the few objective surrounding circumstances where the complainant's story can be tested, errors are demonstrated.  There is a strong probability that even after a retrial with adequate directions, any conviction would be unsafe and unsatisfactory.  In all the circumstances it is undesirable that there be any retrial.

40. The formal orders are the following:

1. Appeal allowed.
2. No new trial is ordered.