SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I have read and agree with the reasons of Thomas JA in this matter.  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

2. THOMAS JA:  The appellant was convicted of eight sexual offences committed upon his stepdaughter, “X”.  The details of the convictions, with the dates between which each offence was alleged to have been committed, are as follows –

3. Thirty-one grounds were listed in the Notice of Appeal, but on the hearing of the appeal the appellant's counsel, Mr Hamlyn-Harris, presented oral argument grouping various grounds together so that three particular subjects were addressed. In respect of other grounds he relied upon his written outline of argument.

4. At the time of trial the complainant was 24 years old and the appellant 50 years old. The period spanned by the eight charges in the indictment was eight and a half years, covering the period when the complainant was aged between 10 and 18.

5. The Crown case included evidence from the complainant, the complainant's mother and the appellant's sister-in-law. The complainant's mother corroborated her daughter in a number of ways including evidence of having found the appellant in bed with X on two occasions in June 1989, another occasion in 1992 or 1993 when she found him sitting on X's bed dressed only in underpants. She gave evidence of a conversation with the appellant in 1997 which included her putting to him that she was disgusted by what he had done to X and of his replying that "It wasn't that bad because she enjoyed it anyway". She also gave evidence of a further telephone conversation with the appellant after her separation from him in 1998 in which he made further admissions. Eventually on 20 November 1998 she taped a telephone conversation with him in which there are admissions by him of having sexually assaulted X, of not knowing why he did it, that he felt terrible about it, that it was cracking him up, that it had gone on for years, that he could only say he was sorry, that he did not "make her" and so on. There was further evidence from Mrs Woods was of a conversation with the appellant in 1989 or 1990 in which he had asked her why she did not like him any more. She had replied, "Because of what happened with baby X" and had added "she's practically your daughter". He replied, "I know but I can't help it. I've got feelings for her." He added, "It's okay now I've worked it out" and "It will never happen again".

6. The appellant gave evidence denying that anything sexually untoward had ever occurred between him and X. He denied that any such conversation as that alleged with Mrs Wood had ever occurred. He admitted the taped telephone conversation with the complainant's mother, stating that he had been drunk at the time and that he was trying to satisfy her. He also called other witnesses who had observed only normal relationship and contact between him and X. These included his three daughters, his sister, his first cousin, and a former partner of his sister.

Grounds alleging lack of particularity in evidence

7. At the close of the Crown case defence counsel submitted that counts 1, 2, 4 and 5 should be taken from the jury because the evidence in support of them contained insufficient particularity. His Honour declined to do so. On appeal a similar submission was advanced, in relation to counts 1, 2, 4, 5 and 6, with the emphasis in argument upon counts 1 and 4. It is necessary to present a short resume of the evidence on these counts.

Count 1

8. The indictment alleged that this offence of indecent dealing occurred "on a date unknown between 4 September 1985 and 31 December 1985 at Townsville". The complainant said that when she was 10, in Grade 5 the family moved back to Townsville and lived at W Street for about six months. The evidence shows that she turned 10 on 4 September 1985. She said that her mother noticed that she was starting to develop and had given her trainer bras and a book called "Growing Pains" while they were living at that address. Not long after she was given the book the appellant came into her room one night after everyone was in bed. He asked her if she wanted him to show her something and when she said "yes" he performed the indecent acts. These were described in some detail. Briefly stated they involved his pulling her knickers down, playing with her vaginal area with his fingers, and licking her vagina. He told her not to tell her mother. She said that such acts continued to happen a couple of times a week for "I suppose the whole time we were at W Street".

9. The charge related to the initial act that was specifically described. As later evidence showed this was the start of a fairly continuous series of sexual acts that intensified in various ways over the following eight years. The complainant's evidence did not state the month of the family's arrival at W Street. Her mother however gave evidence of the times and places at which they had lived. She said that they moved back to Townsville from Central Queensland in late 1985 and lived at W Street "for a few months" before moving to G Street. She described the time of the move as "late 1985" and as after the school year. Her most specific statement as to residence at W Street was that they were there "from about the beginning of December to about some time in February 1986". She confirmed the giving of a book to X when she noticed that she had started developing. She thought that this had happened in G Street. She did not think that she had given X the book while they were in W Street, but she did not keep a diary on these things.

10. The submission for the appellant is that there is insufficient detail in the Crown case, and that the defence could not know the occasion on which the prosecution relied or that it might be confused with other matters charged. The distinction between the charged act and the subsequent similar uncharged acts was clear. It is true that there was a conflict of evidence which makes it possible to contend that this act may have occurred outside the period specified in the indictment, but that was a matter that could have been raised with the jury. The burden of the appellant's submissions both below and here is more ambitious. The submission is that in breach of the principles stated in S v The Queen^[1] the occasion on which he was alleged to have committed the offence was unspecified and that the appellant was prejudiced in his defence by a lack of procedural fairness.^[2]

11. In my view the occasion relied on by the Crown was adequately identified and described. Whether it was proved was a matter for the jury. If the complainant's evidence was accepted (as it would seem that it was) the first such act occurred very early during residence at W Street, and the mother's evidence confirms that this was in December 1985 which is within the period charged. The mother's impression that the book had been given while they were living at G Street raises an inconsistency between Crown witnesses on this detail of the evidence, but it was capable of reasonable resolution consistent with conviction on that count.

12. The appellant in this case was not subjected to difficulties of the kind which were held to have deprived the appellant in S v The Queen^[3] from having had a fair trial.  In that case three counts were specified, each within separate periods of 12 months, although there was a slight overlap in the periods specified in respect of two of the counts.  The complainant in that case mentioned only two specific acts of intercourse and the evidence failed to link either of these with any one of the specified periods.  Evidence of a general kind as to continuation of such conduct was not considered capable of satisfying the deficit.  Although the evidence in a general way revealed a multiplicity of offences, there was nothing to identify any one of them as the offence with which the appellant was charged in any particular count.  By contrast, the present matter is identified by reference to particular distinguishing features and the evidence is capable of proving that it occurred at the place and within the time frame alleged.  It cannot be held that the appellant was placed in a position where he was embarrassed in making a proper defence.  To use Dixon CJ's term in Johnson v Miller^[4] the transaction upon which the prosecution relied was clearly identified.

Count 2

13. The indictment alleged that the indecent dealing in respect of this count occurred between 4 September 1987 and 28 June 1989. The allegations and evidence were that the incident occurred while the family was living at G Street. It was said to have taken place on a Saturday morning while the complainant was still in bed. The appellant called her to come into his bedroom. She replied, "I am comfortable where I am sleeping". The appellant rejoined that she could not sleep "all her fucking life" and told her to "come in here". When she went into his bedroom he asked her if she wanted to see what sperm looked like. She said, "Not really". He said, "Yes, you do. I'll show you" and started to masturbate. He put her hand around his penis but she pulled it away. He then continued to masturbate until he ejaculated. She said that such conduct happened "continuously" in G Street.

14. There is no sustainable point concerning lack of particularity on this count.

Count 4

15. The indictment alleges indecent dealing between 1 July 1989 and 31 December 1989. The time of the occurrence of the conduct the subject of count 3 was clearly proved as the night of the appellant's 40th birthday party and may be taken to have been at the end of June 1989. The complainant gave evidence that approximately a week later she went to live with her grandparents for approximately one month before returning home. On her return the appellant then told her that he would not touch her anymore. However, contrary to that assurance, "Graham then started coming into my room again and started licking my vaginal area and using his fingers on my clitoral and vaginal area and getting me to masturbate him". She says that he did this "continually". The evidence does not become any more specific than this. Whilst it gives adequate detail as to the sexual activity, and is adequate on the elements of time and place, the criticism is that it is a statement of general activity and does not identify any particular occasion. In one sense the evidence proves both too much and too little, but it does not seem to have disadvantaged the appellant. His counsel cross-examined on this count, referring to it as "the episode that you say occurred after you returned from your grandparents". The main point made by the cross-examiner seems to have been that the complainant had failed to mention in her statement to the police that she had stayed with her grandparents. He put to her that she could not say when in the second half of 1989 this occurred. He also put to her that no such incident had occurred with the appellant.

16. It is generally necessary for the prosecution to make it clear what acts are said to be the offences charged and what acts are said to be similar facts or uncharged. As Gaudron and McHugh JJ mentioned in S v The Queen above,^[5] without this it would be impossible to instruct the jury as to the use properly to be made of the evidence of the other offences, and there is the further danger that uncharged acts will be relied on by the jury in lieu of the charged act.

17. Had this last-mentioned difficulty been raised, it would have been quite simple for the prosecution to have specified its reliance upon the first of the occasions on which such acts happened at the place specified. In the circumstances it can be seen that no embarrassment or difficulty resulted to the defence. In many cases general evidence of this kind may be an unsafe basis on which to sustain a conviction. However I do not think that the evidence given in this particular case fails on this basis. It is relatively explicit and logically capable of proving that the appellant did what was charged at the time and place mentioned in the indictment. However I do not think that general evidence of this kind should be used as the basis of sustaining a particular conviction unless the prosecution specifies the particular upon which it relies (eg the first such incident). I would characterise the omission to do so in this case as an error, but would apply the proviso. The omission in the present circumstances could not have occasioned a miscarriage of justice or have jeopardised any chance of acquittal fairly open to the appellant.^[6]

Count 5

18. The allegation here was of attempted sodomy between 1 January and 31 December 1992. It was supported by evidence that the family moved to F Road. The complainant by this time had a boyfriend who lived with the family for about four or five months in the year when the complainant was 16. The appellant came into the complainant's room one Saturday morning, undressed and got into her bed. He rubbed his penis up and down "between my arse cheeks … I could feel it at the opening of my anus". She pulled away, he masturbated, and then walked out.

19. There is no sustainable point concerning lack of particularity on this count.

Count 6

20. This was a charge of rape. The evidence was that a couple of weeks after the incident described in count 5, the complainant was watching television on a Saturday morning. Her mother was absent. The appellant, having showered, told her to come to his bedroom where he told her what a head job was. He held the back of her neck and forced her mouth on to his penis. He told her to roll over on to her stomach and rubbed his penis "between my arse cheeks" and then told her to roll back on to her back. He pushed her legs apart, inserted his penis into her vagina, moved it in and out and ejaculated – "some inside of me and some on the outside on my thighs and that". Her mother and the appellant moved into a house in H Street not long after that.

21. There is no sustainable point concerning lack of particularity on this count.

Judicial intervention

22. There were two interventions by the learned trial judge during cross-examination by defence counsel of the complainant. There is now no complaint about the first of these, but it is necessary to examine the second. Counsel drew the complainant's attention to a page of the depositions dealing with the subject of what happened after the appellant's 40th birthday party celebration. She agreed with counsel that she did not there mention anything about "the toilet incident". His Honour then referred to cross-examination on the previous page and said to counsel in the presence of the jury "Whilst there's no specific reference to that matter, the matter is dealt with very generally. You see, it's not fair to convey the impression that because there was no specific reference to this matter that somehow it was totally left out of the committal proceedings". Counsel for the appellant's principal objection is based on the fact that his Honour then proceeded to read out parts of the committal depositions which contained her assertions that such acts had happened on many occasions.

23. I do not think that there is any real merit in this submission. In the overall context of the trial in which the complainant gave similar evidence directly to the jury, the additional reference to similar statements at committal could hardly have added anything to the Crown case. It is true that the complainant had not at committal mentioned any incident occurring in the toilet, but she had mentioned it in her statement to the police. Counsel's purpose in eliciting the selective fact that she had not mentioned that detail in her evidence during the committal must have been to insinuate recent fabrication, and in this sense his Honour's concern is understandable. However counsel's position was technically accurate, as his Honour later conceded. Mr Hamlyn-Harris acknowledged that his objection on this point was somewhat technical, and the whole incident in my view represents something of a storm in a teacup. In the event however defence counsel at trial, perhaps under the impression that his standing before the jury had been diminished by his Honour's intervention, applied for a discharge of the jury. This was refused. His Honour however undertook to give appropriate directions, and withdrew any suggestion of unfairness on the part of counsel. He also admitted a factual error on his part in relation to his intervention, and the later directions to the jury concerning this incident were adequate.

24. The incident that has been described does not come close to judicial intervention that could be regarded as having caused a trial to miscarry.^[7]

Exclusion of evidence of "mendacity" of complainant

25. In the course of cross-examination by defence counsel the complainant agreed that when she was younger she had a reputation for untruthfulness. That, she said, was probably until she was about 19. The final questions and answers of her cross-examination were:

"You were a liar, weren't you?—I lied sometimes, yes.

And you are still lying now?—No."

Subsequently, as part of the defence case, counsel for the appellant sought to call evidence from persons who would say that they knew the complainant's reputation and who, it may be implied, would say that they would not believe her on her oath.  Unfortunately counsel did not state with any precision the number or identity of the witnesses or the period up to which they claimed to be aware of her reputation.  The evidence was neither tendered nor recorded in the form of an exhibit for identification or by voir dire.  Instead, defence counsel simply raised the matter with the trial judge in the absence of the jury, in effect asking for and obtaining a hypothetical ruling on admissibility.  In the absence of some clear indication of the content of evidence which a party contends was wrongly excluded at trial, a number of difficulties arise when a complaint is made on appeal.  One of these is that it may be more difficult for an appellant to show that an error has occurred or that a miscarriage has been caused.  In the present case defence counsel indicated that some of his witnesses had not spoken to the complainant for two or three years, that "some" spoke to her only one or two years ago, that their knowledge of her and her reputation was based upon information up until the time that they stopped mixing with her but that their evidence would represent their present opinion even if based upon past association.  He submitted that a person's reputation is a continuing thing.

26. The learned trial judge ruled that such evidence could not be called, as he was of the view that the common law rule which permitted evidence of this kind to be adduced "ran foul" of certain statutory advances that had been introduced into the law in sexual cases, with particular reference to s 4 of the Criminal Law (Sexual Offences) Act 1978.  With respect, that Act has nothing to say regarding general credibility of a complainant.  It protects a complainant against the drawing of unfair conclusions from previous sexual activity.  There remains a rule of evidence, applicable in both civil and criminal proceedings, that allows evidence of a strictly limited kind to be called to impugn the credit of any witness called by the opponent.  It is a curious rule.  There are good reasons why it is rarely used in practice, but its survival is not in doubt.^[8]  The rule is hedged with restrictions as to what may be asked by the examiner-in-chief, including a prohibition upon the witness referring to particular events to justify the belief.  The rule was conveniently summarised in R v Gunewardene^[9] by adoption of the following passage from Stephen's Digest of the Law of Evidence:

"The credit of any witness may be impeached by the opposite party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath.  Such persons may not upon their examination-in-chief give reasons for their belief, but they may be asked their reasons in cross-examination, and their 'answers cannot be contradicted'."

For many years it has been "very rare, in  practice, for this cumbersome, anomalous and unconvincing exercise to be conducted".^[10]

27. I do not understand the decision of this court in R v Laycock and Stokes^[11] to extend the scope of questioning which may be permitted under this rule.  Wigmore^[12] described such evidence as "this feeble and petty class of evidence", which opinion appears in the following passage:

"No long experience at trials is needed to convince one that the danger of the protraction of the proceedings, the confusion of the issues, and the degeneracy of the trial into a contest between neighbourhood factions is equally attendant upon such evidence.  Judges have often protested against the abuses of this kind of evidence (§1610 infra).  They concede the comparative triviality of its value.  The modern tendency is to abandon the old notion (a mark of a primitive stage of opinion) that a usually bad man will usually lie and a usually good man will usually tell the truth.  It would seem desirable to consider the expediency of restricting the resort to this feeble and petty class of evidence."

Reference is also made  in Wigmore to comments of Hon J F Daly:^[13]

"In my experience and that of many judges there has been no successful impeachment of a witness by proof of bad reputation.  There is something distasteful to the average juryman in the 'swearing away a man's character'; and the general feeling in that regard is evidenced by the reluctance, on the one hand, of witnesses to come forward and testify that they would not believe a witness under oath, and the readiness on the other hand, with which all a man's acquaintances hasten to his support."

28. In the present case counsel for the Crown referred to the fact that the complainant had admitted she had a reputation for telling lies until she was 19 and that the evidence foreshadowed by defence counsel would not necessarily establish more than she had already admitted. While this has some force on the question of triviality of the weight of the evidence in question, it is not an answer to the question of admissibility. The complainant was 24 at the time of trial. The foreshadowed evidence on the basis of defence counsel's statements had at least some potential capacity to take the matter further than the complainant had admitted. The weight of such evidence (unlikely to have been significant in any event, and even less likely to be so in the light of the complainant's admission) might have been cut down still further if it were shown that the witnesses' opinions were based largely if not entirely upon the knowledge of her and her reputation up to the age of 19. However it is inescapable that his Honour's ruling on the question was wrong and that an error occurred.

The question arises whether the proviso (in s 668E(1A) of the Code) should be applied.  For the reasons already mentioned, the comment in R v Laycock and Stokes^[14]that the evidence "carried the weight of a bantam feather" might also be made here.  In addition, had such evidence been led, it was inevitable that the appellant would have been faced with an application to have his criminal history placed before the jury.^[15]  A more forthright example of conducting the defence in the manner involving "imputations on the character of the prosecutor or of any witness for the prosecution" would be hard to imagine.  The appellant had a criminal history mostly for crimes of dishonesty up to the age of 19 years, and also a conviction for aggravated assault on a female.  It is unnecessary to consider whether all such matters would have been allowed to be mentioned, but it seems clear that the resulting damage to the appellant's credit would be of a greater order than that to the complainant's credit by reason of admission of the evidence in question. 

29. In most if not all criminal trials the trial judge is called upon to give many rulings on questions of evidence, and in the context of applying the proviso when an error of this kind has occurred, the error may range from insignificant to fundamental. In some cases it is impossible or dangerous for the Court of Appeal to speculate upon the effect that wrongly admitted or excluded evidence may have had. In the present matter however, in the circumstances that have been discussed above, I am unable to see that the error complained of could have deprived the appellant of a chance of acquittal that would otherwise have been fairly open.^[16]  I would accordingly apply the proviso in this case.

Other grounds

30. Although other grounds taken in the notice of appeal were not argued orally, some are raised in the appellant's outline, and it is desirable that these be specifically mentioned.

Whether taped conversation between the appellant and the complainant's mother, or parts thereof, should have been excluded

31. No infringement of the Invasion of Privacy Act 1971 is suggested, and neither is any argument mounted in reliance upon Swaffield v The Queen.^[17]  There is no evidence in the record to suggest that any objection was taken at trial in relation to such evidence. The written outline gives no basis for thinking there is any validity in the several grounds of appeal which raise this question.

Complaint on the trial judge's ruling against permitting cross-examination of the complainant as to previous sexual experience

32. The application to cross-examine the complainant about previous sexual activity was based, in essence, on the submission that if the complainant was "sexually experienced to any degree, [then] … those differences are far less explicable than if she were not". It was not shown, as s 4 of the Criminal Law (Sexual Offences) Act 1978 requires, that the evidence to be adduced by cross-examination would have "substantial relevance to the facts in issue or is proper matter for cross-examination as to credit".  The learned trial judge correctly ruled that such cross-examination should not take place.

Refusal of the trial judge to exclude evidence of conversation between appellant and Mrs Woods

33. Application was made to exclude this evidence on the basis that it was highly prejudicial, but of limited probative value because it was so vague. The evidence in question has been shortly stated in para [4] above. In my view it was of potentially high probative value and capable of being regarded as containing admissions against interest. The evidence was rightly admitted.^[18] 

Objection to "Ruling" on cross-examination on the complainant's desire to change her name

34. At one stage in cross-examination defence counsel put to the complainant that she had told a companion that she wanted to change her name to that of the appellant because he was more of a father to her than her real father was. The Crown prosecutor objected and argument ensued, but there is no indication that his Honour made any ruling. The question simply seems not to have been pursued by defence counsel after hearing the arguments. Such a question, it must be said, seems hardly likely to have been very persuasive in the appellant's cause. Probably the reason for not pursuing the matter further was the intimation by his Honour that if the purpose of such evidence was to demonstrate a benign attitude of the complainant towards the accused, then the Crown would be permitted to re-examine the complainant with a view to adducing other material, including that the complainant told the same companion that the appellant had molested her. Such a course would seem to involve no more than enabling a truer position to be presented if the defence insisted upon adducing a potentially misleading partial picture. Counsel for the appellant conceded that the question initially asked might be regarded as of limited relevance or probative value, given the availability from the same witness of the evidence of the complaint of molestation.

Unsafe and unsatisfactory

35. Having considered all grounds of appeal and the arguments presented in respect of them, there is no basis for thinking these verdicts are unsafe and unsatisfactory. Indeed, it seems fair to say that the evidence of the complainant contains credible allegations and details; that the evidence of the appellant in a number of significant respects can only be described as unconvincing; and that the Crown case was a strong one.

36. The appeal should be dismissed.

Application for leave to appeal against sentence

37. The applicant was convicted of one count of rape, one of attempted sodomy, four of indecent dealing and two of indecent assault. The sentence imposed for the rape was eight and a half years' imprisonment, and for all other offences concurrent sentences of three years' imprisonment. Most of his criminal history has already been mentioned. There are two other convictions in 1979 and 1986 but these appear to be minor and it is fair to say that he has only a minor criminal history. The learned sentencing judge commented that "This is a case of persistent and revolting sexual abuse spanning about nine years, commencing when the complainant was about 10 years of age". Any mitigation by way of remorse would seem to be minimal in this case. The applicant proceeded to trial and therefore is ineligible for the benefit that would come with a plea of guilty.

38. The only point developed on this application is that eight and a half years is manifestly excessive having regard to comparative cases. However in the case of F^[19]to which the learned judge was referred, which bears some general similarity with the present circumstances, a sentence of eight and a half years was upheld on a count of rape which was accompanied by six counts of indecent dealing with a child under 16 year and four counts of wilful exposure to indecent material.  F, like the applicant, had an insignificant criminal history, and went to trial.  After reviewing sentences for like offences, each member of the court was of the view that the sentence of eight and a half years was on the high side but within range.  The same may, I think, be said of the present matter.

39. I would refuse the application for leave to appeal against sentence.

40. JONES J:  I have considered the draft reasons prepared by Thomas JA and I agree with them and would concur in the order proposed.