R v AG[2001] QCA 516

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  All relevant facts are fully set out in the reasons for judgment of Mackenzie J.  The appeal against conviction should be dismissed for the reasons he has stated.  I also agree with the observations of Chesterman J in his concurring reasons.

2. The ultimate issue was not whether evidence of sexual activity between the appellant and the complainant, other than evidence directly establishing the offences charged, was admissible, but rather whether there should have been some restriction imposed upon the scope of such evidence admissible for the purpose of establishing the relationship between the parties.

3. As a general proposition, in my view, where such evidence is admissible it should commence with the start of the relevant relationship. If that was not the case generally there would be a necessary artificiality about the evidence which could have a distorting effect.  There may well be cases where the evidence of uncharged acts relevant to establish the relationship between the parties could be limited without distorting the evidence of the complainant, and where that was so such limitation should be imposed.

4. Here the complainant's evidence suggested more explicit sexual acts as she approached puberty and the first act of intercourse, the offence charged, took place a relatively short time thereafter.  In those circumstances there was not a clear cut off point which would not have distorted the complainant's account of events.  Further, the concentration by the prosecution was on the events surrounding the offence charged.  There was not undue emphasis in the prosecution case upon the conduct establishing the relationship between the parties.

5. There was more emphasis upon the uncharged acts in the cross‑examination of the complainant.  One can see why from a tactical point of view that was a legitimate defence approach, but that cannot strengthen the appellant's case that the trial miscarried because the evidence was admitted.

6. As already stated, I agree that the appeal should be dismissed.

7. MACKENZIE J:  This is an appeal against conviction on an indictment charging that between 1 January 1981 and 10 January 1982 the appellant unlawfully detained the female complainant, who was then 12 years of age, and that at the same time and place he raped her.  An application for leave to appeal against sentence was formally abandoned.

8. The appellant had originally been charged with a number of other offences as well as those mentioned above, but at a pre-trial hearing they had been stayed because the learned Judge of District Courts considered that sufficient particularity could not be provided with respect to them to allow the matters to proceed to trial. A fresh indictment restricted to the two counts mentioned above was presented. There was a further pre-trial hearing of which more will be said later.

9. In addition to the ground originally contained in the notice of appeal, that the conviction was unsafe and unsatisfactory and contrary to law, the following grounds were added by leave:

1. the trial miscarried as a result of the admission into evidence of vague and generalised allegations of uncharged sexual acts by the appellant against the complainant;

2. the trial miscarried as a result of evidence of uncharged acts being led before the jury which acts were so far in time from the acts constituting the counts on the indictment as to be highly prejudicial but of no probative value; and
3. the trial miscarried as the result of reception of evidence of uncharged acts said to have occurred after the acts that constituted the charges in the indictment.

10. To understand the nature of the complaints it is desirable to summarise the complainant’s evidence. She and her sisters slept in a bedroom of the family home during the relevant period. The appellant stayed with them from time to time. She said that the first incident of a sexual nature between her and the appellant happened when she was 7 years old. She said the appellant had touched her between the legs and put a finger in her vagina as they sat in the lounge room. Then, when she was in bed, he came into the room and performed acts of a similar nature. The next incident of which some detail was given happened when she was 9 years old. The appellant came into her room and played with her breasts, made her touch his penis and put it in her mouth.

11. When she was 11 years old she reached puberty and that year the appellant put his fingers inside her vagina. His fingernails scratched her and caused her to bleed. The next incidents described were the counts in the indictment. She said that they occurred when she was 12 years old. The appellant locked her sisters and brother out of the house. He effected penile penetration of her on that occasion. She said that her brother and sisters were banging on the windows and the door to get in but the appellant was yelling at them to go away. She said that this was the first time when complete penetration had occurred.

12. She also gave evidence of another occasion a couple of months later when the appellant went into her room, made her lie on the floor and effected penetration again.

13. In addition to this evidence which concerned acts which had originally formed specific counts of an indictment but which had been stayed, she gave evidence of sexual interference occurring “about every night” when the appellant was staying at her home. She gave evidence in a general way that he had unsuccessfully attempted to effect penetration occasionally since she was seven without success. She also gave general evidence that the behaviour ceased when she was 14 years of age. In cross-examination she said that sexual interference also happened at Warwick when the family visited the appellant. She said that the appellant stayed once with her family for a period of 8 to 9 months and that interference occurred nearly every night during that period.

14. There was also generalised evidence from the complainant’s sister (who had had psychiatric problems) of seeing the accused commit sexual acts upon the complainant, although she conceded that she had not ever seen him have sexual intercourse with her.

15. The complainant’s brother also gave evidence that he had seen the appellant come out of his sister’s bedroom on one occasion. On another occasion he heard her crying, looked into her room and saw the appellant leaning over on top of her crouched down on his knees with his arms around her chest.

16. The appellant gave evidence in which he said that he visited the complainant’s home, staying only for about 2 days at a time. He denied spending 8 or 9 months there. There was also conflicting evidence from the complainant and her siblings on the one hand and the appellant on the other as to whether he stayed with the children while the complainant’s father and mother went to boxing tournaments. He said that he had gone to the boxing with them. The others said that he had not. The defence also called the appellant’s niece who said that he went away from Warwick from time to time in the relevant period but that she could not recall him being away for a period of months. A nephew gave evidence disputing that the appellant had been away for such a period. It was therefore a case where the jury had the opportunity of seeing and assessing the critical witnesses on both sides.

17. It was conceded that the learned trial judge had summed up carefully and comprehensively, and, if anything, more favourably to the appellant than necessary. It was conceded that the issue of delay in the matter coming to trial had been appropriately dealt with and that the jury had been reminded of inconsistencies in the prosecution evidence. It was also conceded that the jury was correctly directed as to the limited use to which evidence of uncharged acts could be put. The jury had been directed that there was no supporting evidence with regard to the complainant’s complaint about the incident charged in the indictment.

18. Mr Devereaux who appeared for the appellant categorised the evidence of sexual activity into three types. The first was evidence about the activity charged in the indictment, concerning which the complainant gave fully particularised evidence. The second was the evidence given by the complainant of several specific incidents, not charged in the indictment, the first of which occurred when she was 7 years old. The third was unspecified or generalised evidence of other sexual conduct by the appellant involving the complainant, given by the complainant and to some extent by other prosecution witnesses.

19. Immediately prior to the trial commencing, there was an application by the defence which began as an application to stay the indictment upon which the appellant was eventually convicted, apparently for reasons concerning particularisation, but on a different basis from before.  As the argument evolved, the learned trial judge expressed the view that staying the counts of uncharged acts contained in the previous indictment did not mean that the prosecution could not lead evidence of what occurred in support of an allegation of an improper or guilty passion.

20. The Crown Prosecutor agreed with the learned trial judge’s observation that he wanted to lead “the evidence in which she describes a series of uncharged acts and gives descriptions of some of them over a period of years”. Later the trial judge observed that there was a limited basis upon which evidence of uncharged acts could be led. He noted that a warning would have to be given about the extreme difficulty for an accused to defend himself against bare allegations of uncharged acts. However, he expressed the view that the evidence was admissible and that the trial could proceed in relation to the two counts in the indictment, with the evidence of the uncharged acts and the evidence of the complainant’s brother and sister being given.

21. In the context of those observations it is plain enough that the learned trial judge did not rule that the evidence in Mr Devereaux’s third category, unspecified or generalised evidence of other sexual conduct by the appellant towards the complainant, could not be led. Further, Mr Devereaux was prepared to concede that once the evidence concerning the acts in respect of which the original indictment had been stayed was allowed to be led, there was some tactical advantage in not objecting to the evidence of the frequency of interference especially where there was a dispute about the circumstances and duration of the appellant’s visits to the complainant’s home.

22. The thrust of Mr Devereaux’s argument was that evidence of vague and generalised allegations of uncharged sexual acts should not have been allowed into evidence because such evidence only tended to encourage the jury to reason impermissibly that the appellant was guilty of the charged acts because he had engaged in sexual acts with the complainant over a long period. He relied on a passage from the judgment of Fitzgerald P in R v K (No 1) [1997] 1 Qd R 383, 398 as support for this proposition.  However, he conceded that there was no binding authority that the evidence was necessarily inadmissible and that a decision whether or not to admit relevant evidence of this kind involved an exercise of judgment or a balancing exercise in the individual case.

23. He submitted that in the present case where there were the other two categories of evidence it was unnecessary to lead the third category because the prosecution could adequately establish the nature of the relationship between the appellant and the complainant by leading the other two categories. It was unnecessary to lead the third category which was unduly prejudicial general evidence answerable only by a blanket denial.

24. When the evidence emerged in the complainant’s evidence-in-chief, no objection was taken by experienced defence counsel. Mr Devereaux submitted that the most likely explanation was the tactical reason previously mentioned.

25. In my opinion the learned trial judge did not err in allowing the evidence to be led in all of the circumstances of the case. The directions given with regard to its use were appropriate. The trial did not miscarry as a result of the evidence being admitted. There is no reason to set aside the conviction on that ground.

26. The second added ground of appeal is essentially a fall-back position from the proposition that the evidence should have been excluded in its entirety. The essence of the submission was that if evidence of a general nature was to be admitted it was highly prejudicial to allow evidence to be given of acts, occurring both before and after the charged acts, covering a period of about 7 years. The problem of fixing a meaningful cut-off point for such evidence was acknowledge by Mr Devereaux.  In any event, once evidence of this kind is admitted and is sufficient to establish a pattern of, or repetitive conduct, the mere number of occasions upon which it is alleged to have occurred is unlikely to be a factor which, of itself, would induce the jury to convict rather than acquit.  I am not persuaded that the trial miscarried because the period over which the uncharged acts were alleged to have been committed was not restricted to a shorter time span than the learned trial judge allowed.

27. The remaining added ground of appeal is that the trial miscarried as a result of admission of uncharged acts said to have occurred after the acts that constituted the charges in the indictment. There is no substance in this ground. In cases of this kind, evidence of acts of a like nature occurring subsequently to the alleged offence is admissible (R v Witham [1962] Qd R 49).  To the extent that it is implicit in this ground that the learned trial judge should have excluded, on discretionary grounds, any evidence of generalised acts occurring after the offences charged in the indictment, the comments made concerning the broader question of restriction of the period of sexual misconduct of which evidence was allowed to be given are applicable.

28. The remaining issue is whether the conviction was unsafe and unsatisfactory. There was evidence upon which the jury might convict of each of the offences. The acceptance or otherwise of the prosecution case depended to a very large degree upon the jury’s view of the credibility of the complainant, together with limited supporting evidence from other witnesses and of the evidence of the appellant and his supporting witnesses. The jury were in a particularly advantageous position to make that decision. They were given proper directions, including directions about the use to which the challenged evidence could be put. They were reminded of discrepancies in the evidence of the complainant and other prosecution witnesses but nonetheless accepted her evidence and must be taken to have rejected the evidence for the defence. It is not a case where there is any reason to think the conviction is unsafe, unsatisfactory or contrary to law. The appeal should be dismissed.

29. CHESTERMAN J:  The facts relevant to the disposition of this appeal and the issues arising from them are set out in the reasons for judgment of Mackenzie J with which I agree.

30. Evidence of sexual activity between the appellant and the complainant was relevant to provide a context in which the act of rape occurred. Without it the reaction of the jury may have been the same as that described in R v Witham [1962] Qd R 49 at 82: the jury might well have concluded that the account of an isolated act of rape by a great uncle on a young child was unbelievable.  Put in the context of increasingly explicit acts of sexual molestation by the appellant as the child grew older makes the act of rape more explicable.

31. I adhere to the opinions I expressed in R v AB [2000] QCA 520 especially paragraphs 49 to 56.  This is a case in which “the complainant’s evidence about the offences might appear unintelligible or incredible unless put in context”.  It follows, though, that only sufficient “relationship” or “contextual” evidence should be led as is necessary to fulfil the purpose of providing an intelligible background.

32. As I understood the argument the appellant did not contend that some evidence of the prior relationship between him and the complainant could not be led. His complaint is that more evidence than was sufficient for that purpose was adduced, to his prejudice.

33. The immediate difficulty the appellant faces is that no objection was made to the evidence. A similar occurrence in R v A is what led the majority to reject that appellant’s submissions that his trial had been unfair.  Special leave to appeal appears to have been refused because a majority of the judges who heard the application shared that opinion.

34. There may be cases in which the prejudice to an accused brought about by the admission of such evidence is so great that a conviction will be overturned notwithstanding that the evidence was not objected to. Gipp v The Queen (1998) 194 CLR 106 may have been such a case.  Ordinarily, however, where relationship evidence is admissible and no objection is made to any part of it, a complaint that there was too much will be rejected.

35. I agree the appeal should be dismissed.