SUPREME COURT OF QUEENSLAND

1. McMURDO P: I agree with the reasons for judgment of Thomas JA and with his proposed order.

2. DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the order he proposes.

3. THOMAS JA: The appellant was tried in the District Court at Toowoomba on nine counts of indecent dealing with a girl under the age of 17 years, one count of unlawful assault, and seven counts of rape.  He was acquitted on 12 counts and convicted on the following five counts:

Count 8, Common Assault;

Count 9,  Indecent Treatment;

Count 10, Rape;

Count 12, Rape;

Count 15, Indecent Treatment.

This is his appeal against those convictions.

Summary of Evidence

4. According to the complainant the offences occurred between 17 February 1973 and 17 February 1979 when she was between the age of 7 and 12 years. By the time of trial she was 34 years old. During the relevant period, at least on a weekly basis, the appellant would indecently deal with the complainant and/or have sexual intercourse with her without her consent.

5. The complainant’s mother had left her with her father when she was 18 months old, and she had lived with her father and various other persons up to age 7. By then, (1973), her father’s work required him to be away for extended periods and generally she saw him only on weekends when he was drunk. Presumably under arrangements approved by her father, the complainant then started living at the appellant’s house with the appellant, his wife and their three daughters, one of whom was older than the complainant and the others who were younger. The complainant shared a bedroom with the three daughters and each child had her own bed or bunk. The offences were committed throughout the period of her staying in the appellant’s house.

6. The incidents of indecent dealing involved the appellant touching the complainant on her vagina, on the inside of her clothes, or with her clothes removed. The indecent dealing was often followed by an offence of rape. Apart from the 17 specific occasions described in the indictment, the complainant said that the appellant touched her and had sex with her on numerous occasions, usually on a weekly basis in her bedroom. On such occasions there would sometimes be blood on her underwear and on the bed sheets. She tried to resist the appellant by kicking and punching at him. As a form of defence she sometimes persuaded one of the appellant’s daughters to sleep in her bed with her. The complainant would often cry and tell the appellant to leave her alone but these pleas were ignored.

7. I do not at this point propose to recount the details of the counts upon which the appellant was acquitted. They are sadly familiar and unremarkable descriptions of various forms of indecent dealing, and of acts of rape allegedly committed on a young girl by a person in loco parentis. So far as those matters are concerned, the complainant’s allegations were uncorroborated and there was no supporting or bolstering evidence of any kind.

8. It is desirable however to recount relevant details of the five matters upon which convictions were recorded.

Count 8, 9 and 10

9. These were episodes of the one incident. Its salient feature was that the appellant held a butcher’s knife to her throat when she was in her bedroom. She was aged about 9 and the eldest daughter was present (the eldest daughter did not provide a statement to police and did not give evidence.) She stopped resisting after the knife was produced. He touched her vagina and then put his penis in her vagina. She said that she told a neighbouring resident, to whose house she often went when she ran away from the appellant’s house, about the incident. She did so round about that day, as soon as she could. She mentioned to her that the appellant had held a knife to her throat.

10. The Crown called Mrs H to give evidence of recent complaint in relation to some other counts, but did not adduce evidence-in-chief from her about this particular complaint. However, in cross-examination, she gave the following evidence:

“She would come over.

Did she ever tell you about a knife being used against her throat? ---No.

In fact if you had heard of a knife being placed against her throat, I take it you would have been-------?------  Yeah, yeah,

I did -----

----most------?-----I did hear something -- something about that.

You heard something about that?--   Yeah, I think so.  Yeah, I’m not sure about that though.

Is that years later you heard something about a knife?--  No.  I -- I -- a year --- everything I’m talking about is what -- is way back when it first happened.

Everything?--  Mmm, yeah, most everything, yeah.  There’s only one -- there’s only one thing when I rang her up when -- I rang her up once last year just to find out one thing off her and I told you that last year.”

11. Some time later the cross examiner returned from other subject matter to this particular theme in the following passage:

“You can’t remember anything about a knife? ---  No, not really.

And I take it if she had have ever told you about a knife being used, you would’ve been horrified? ---Yes.

And would most certainly have taken her into your house if a knife was put to her throat and told that it would be used against her?--Yes.

You’d do that, wouldn’t you?---Yes.”

Count 12

12. When she was about 9, the appellant got into bed with her and had sexual intercourse. While he was doing this, his wife came to the door. This was the only occasion his wife came in while they were engaging in sexual activity. The wife blew her nose and cried saying, “If I catch you in here again I’ll tell Boof.” (Boof was the name by which the complainant’s father was known.) The appellant stayed in bed “doing what he was doing” for a few more minutes. Both the complainant and appellant were naked from the waist down with no bedding covering them and he was actually penetrating her when the wife came in. She said that the three daughters were in the room at the time, that she told Mrs H about the incident and that it occurred in the early morning.

13. Mrs H confirmed that the complainant told her about the appellant “rooting her” and that the complainant had informed her that the wife saw the appellant with the complainant and that the wife had told the appellant not to do it again or she would tell the complainant’s father. Mrs H said that that conversation occurred when the complainant was aged about 9 or 10.

14. One of the three daughters gave evidence that she was in bed with the complainant when the appellant (her father) got into the same bed. The complainant had resisted and there was a struggle while she (the witness) pretended to be asleep. She did not see what was going on as it was dark. Her mother came to the door and said, “Oh come on mate” in a pleading tone. That was the only occasion when the witness could recall her father getting into bed with her and the complainant.

Count 15

15. One morning when the complainant was about 9 years old the appellant came to her room and told her to go to the master bedroom. She did so, removed her clothes, and lay on the bed as requested. The wife was present on this occasion. The appellant touched the complainant in the area of the vagina with his fingers, pulling the opening apart. He said to his wife, “I told you she’s been screwing around.”

16. That afternoon, after school, the complainant went to Mrs H and told her about it. Under cross-examination she said she was 11 years old when this occurred, and at committal she had said that she was about 10.

17. Mrs H confirmed that there was an occasion when the complainant had told her that the appellant made her disrobe and lie on the bed in front of his wife, during which he pulled her vagina around and said, “Look a man has been rooting this girl.”

18. The complainant said that appellant stopped dealing sexually with her when she was 12 years old and went to Cunnamulla High School where she lived at a hostel during the week.

19. Both the appellant and his wife gave evidence denying the complainant’s allegations. His wife denied witnessing any improper sexual behaviour, seeing the appellant in bed with the complainant, or noticing anything untoward.

Grounds of appeal

20. Leave was granted to substitute the three amended grounds for the original grounds of appeal. It is convenient to deal with the first two grounds together.

 “Ground 1:The learned trial judge erred in law by wrongly directing the jury that there was no need for them to be satisfied beyond reasonable doubt of the ‘relationship evidence’ before them.

Ground 2:The learned trial judge further erred in law by failing to properly direct the jury as to the limited use that could be made of evidence of uncharged acts.”

21. The summing-up included the following directions –

“Then there is this question of relationship evidence.  That is to say evidence which is of a general nature, background evidence, not evidence going to the commission of a particular offence.  The sorts of things that were said by the complainant in that connection were that the accused came into her bedroom, I think it was at least once a week, and he would touch her and put his penis in her vagina and he did this, I think she said, on three Saturdays out of every month.”

22. Having given further examples of the relationship evidence his Honour continued –

“That is all general evidence.  It does not go to the particular offences charged.  In relation to that evidence, you do not have to be satisfied beyond reasonable doubt.  It is just a question of being satisfied that it is true, if you are satisfied that it is true.

If you are satisfied that it is true, then it provides a background; it provides evidence as to the relationship which existed between the accused and the complainant.  It provides a context in which you can consider the evidence which does specifically go to the particular offences charged.

Otherwise, in some cases, if such evidence were not allowed, allegations might seem to be incredible or bizarre or inherently unbelievable, but once you give consideration to evidence of that kind, which is sometimes called context evidence or relationship evidence, if you accept it as being true, then that may alter the way in which you consider the evidence which is logically probative of the offences alleged.”

23. Mrs McGinness, for the appellant, submitted that the relationship evidence in this case fell into the same category as circumstantial evidence of the kind identified in Shepherd v R,^[1] and that the relationship evidence constituted an “indispensable link in a chain towards an inference of guilt.”  The question here is whether the relationship evidence was an indispensable intermediate step in the reasoning process towards an inference of guilt.

“Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case.  Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning.”^[2]

24. In my view the relationship evidence in the present case could not properly be regarded as such a link. A similar submission, in relation to directions on propensity evidence was rejected by this court in R v Delgado-Guerra Ex Parte Attorney-General,^[3] and it is unnecessary to repeat the reasoning there expressed.  A similar view was taken by Anderson J in Cook.^[4]

25. However the question whether an explicit direction by the learned trial judge that the jury does not have to be satisfied beyond reasonable doubt in relation to such evidence is desirable or even appropriate is another matter. In Gipp v R^[5] the problems associated with a “bare direction” of this kind were recognised by Gaudron J^[6] and by Kirby J.^[7]   Counsel for the Crown in that case conceded that the direction was “unfortunate”.  The danger identified by Gaudron J was that a bare direction of that kind left open the possibility that the jury might reason, on probability, that there was a relationship involving regular sexual abuse, and that the appellant was guilty of the specific offences charged.  It is worth noting that such a risk was not created by the present directions, because the direction followed quite explicit directions as to the limited function of such evidence and a specific reminder that “it does not go to the particular offences charged.”

26. Whilst it would have been better had his Honour refrained from the gratuitous direction on the standard of proof in relation to this evidence, it was not erroneous and could not in the circumstances have contributed to any miscarriage of justice. Ground 1 has not been made out.

27. In relation to Ground 2, Mrs McGinness submitted that the directions were inadequate in that they failed to state that the evidence could only be used for the limited purpose of determining whether a sexual relationship existed between the complainant and the appellant, and also failed to warn against reasoning that the appellant was the kind of person likely to commit the offence charged. The manner and extent of directions necessary from a trial judge in sexual cases when relationship evidence is admitted has been the subject of much judicial discussion in recent years. The subject is discussed in BRS v The Queen,^[8] Gipp v The Queen,^[9] R v Vonarx,^[10] R v LSS,^[11] and KRM v The Queen.^[12]

28. In KRM, the most recent and relevant decision of the High Court touching the present problem, the submission that there is a universal need for a “propensity” warning was expressly rejected.  The somewhat differing approaches of the various members of the court were identified and discussed in R v Self,^[13] and it is unnecessary to repeat the discussion here.  It is enough to say that in KRM all members of the court recognised that a case by case approach is necessary in determining whether that particular warning is necessary, and that in some cases the giving of such a warning may excite the very prejudice that it purports to eliminate.  There are also statements recognising that there are certain categories of case, as for example where there is more than one complainant, or where the acts constituting the crime are not discreet and clearly identified, where such warnings would be regarded as necessary.  In my view the judgments in KRM reflect a less stringent attitude towards the giving of such directions than might have been gleaned from the earlier cases of BRS, Gipp and Vonarx.  The necessity for such a direction depends very much upon the circumstances of the particular case and especially upon the perception of risk that the jury might engage in unfair stereotyping.

29. In the present matter Mrs McGinness referred to the decision of this court in R v W  ^[14] where it was stated to be necessary for the judge to direct the jury as to what use evidence of uncharged offences or improper acts might be put, and that the absence of such a direction was ordinarily fatal to a conviction.  In that case directions on the proper use of the evidence of uncharged offences was totally lacking, leading to the observation by Pincus JA and Muir J that –

“One can only guess what use the jury thought they were supposed to make of that evidence.”

That is not the situation here.  The summing-up (quoted above) places clear limitations on the use that might be made of the evidence, and I do not think that a specific “guilty passion” or “sexual relationship” direction was needed.  Furthermore, the clear designation of that evidence as subsidiary and as, “not going to the particular offences charged”, renders the present case one where a specific warning that they should not convict the appellant by reasoning that he is the kind of person likely to commit the offence charged was unnecessary.  It may also be noted that the jury acquitted the appellant on twelve of the counts.

30. It may be added that no request was made by defence counsel for re-directions of the kind that are now submitted to have been necessary.

31. I do not consider that Ground 2 is made out.

32. Ground 3:

Ground 3 states -

“The convictions are unsafe and unsatisfactory on the bases that the guilty verdicts on counts 8, 9, 10, 12 and 15 are inconsistent with the acquittals on the remaining 12 counts.”

33. Mrs McGinness submitted that there is no rational basis upon which the jury could have convicted the appellant on these five counts and acquitted him on the remaining counts. She referred to McKenzie v The Queen,^[15] and Jones v The Queen.^[16]She conceded that there was a rational basis upon which there could have been convictions upon counts 12 and 15, and acquittals on all other counts, because there was corroboration upon count 12, and independent evidence of fresh complaint in relation to counts 12 and 15.  She submitted however that there was no independent evidence of fresh complaint on counts 8, 9 and 10.

34. The complainant said that she had told four of her school friends about some of the relevant events, and also some adults whom she named. However the only witness called by the Crown who supported the making of complaints at or around the relevant time was Mrs H. It can therefore be seen that there was no acceptable evidence of fresh complaint in relation to the majority of the counts, and that in respect of most matters the defence was entitled to submit that the eventual complaint was very late.

35. However Mrs H’s evidence clearly contained evidence of a fresh complaint in relation to counts 12 and 15, and arguably in relation to counts 8, 9 and 10.

36. It seems to me that the evidence given by Ms H under cross-examination in relation to counts 8 to 10 provides some support for the complainant’s statement that she had complained to her at the time about the knife incidents. On analysis, there is more than a scintilla of evidence supporting that such a statement was made, even though the witness’ recollection was clouded and uncertain. She said that she did have some recollection of it, and that the recollection was of something “way back when it first happened.” It had nothing to do with the “one thing” about which she had had contact with the complainant in recent times. It would be quite rational for a jury to give the benefit of the doubt to the appellant in respect of matters where there was no independent evidence of the complainant’s consistent conduct, and to convict upon matters for which there was some such independent support, even if it was only slight. On this footing the verdicts are readily and rationally explicable. I therefore consider that this ground has not been made out.

Order

37. The appeal is dismissed.