R v L[2001] QCA 535

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:   I have read and in general agree with the reasons of Ambrose J for dismissing the appeal. I am bound to say, however, that, had it not been for the careful and thorough directions given to the jury by the learned trial judge, there would have been a serious question whether the verdict in this case could have stood. It is the duty of both prosecuting and defence counsel to refrain in their addresses to the jury from indulging in excesses that hinder the fair and dispassionate consideration of the evidence and expose the integrity of the verdict to scrutiny and challenge on appeal. The fact that the jury acquitted the appellant on the third count of rape affords assurance that the jury here were not improperly influenced by some of the more extreme submissions in the addresses of counsel and that they conscientiously followed his Honour’s directions in reaching their verdicts.

2. The appeal against conviction should be dismissed.

3. AMBROSE J:   This is an appeal against conviction of three offences of indecent dealing with the appellant’s stepdaughter.  The first count alleged an indecent dealing on a date unknown between 1 January 1994 and 31 December 1994 at Avondale.  The second count alleged an indecent dealing on a date unknown between 1 January 1998 and 4 December 1998 at Sharon.  The third count alleged a rape of the appellant’s stepdaughter on a date unknown between 18 July 1999 and 31 December 1999 at Sharon. 

4. The appellant pleaded not guilty to all counts. He was acquitted upon the third count of rape but convicted on that count of indecent dealing.

5. The appellant was sentenced to six months imprisonment on each of the first two counts of indecent dealing and two years imprisonment on the third count of indecent dealing.

6. In passing sentence the learned sentencing judge made an order pursuant to s 19 of the Criminal Law Amendment Act 1945 that the appellant report his name and address within 48 hours of release from custody and for five years thereafter any change of that address because he was satisfied that there was a substantial risk that he would commit further offences of a sexual nature in relation to children under the age of 16 years.

7. The appellant does not seek leave to appeal against the sentences imposed.

8. The grounds of appeal are –

“(1) In a number of respects, the Prosecutor’s closing address so exceeded the bounds of proper comment and submission that the effect could not be repaired by the learned Judge’s summing-up and has caused a miscarriage of justice.

2. The learned trial Judge erred in failing to discharge the jury on the application of the defence at the conclusion of the Prosecutor’s closing address.”

9. Various aspects of the Crown Prosecutor’s final address have been canvassed and I will deal with each separately.

10. Fortunately in this case, the final addresses of both counsel for the appellant and the Crown Prosecutor were recorded. The trial was a relatively short one in which only the appellant’s daughter and her mother and the appellant gave evidence.

11. Essentially, the determination of the issues leading to the appellant’s conviction depended upon the assessment of credibility of the appellant and his stepdaughter (the “complainant”). There is no corroboration of the complainant’s evidence. There was no fresh complaint. It was her evidence that the counts related to only three of very many similar offences committed by the appellant over a period of years. Evidence of other unparticularised offences was admitted as background or relationship evidence.

12. It is the contention of the appellant, that the evidence was “finely balanced” and that in spite of a very careful summing up in which the learned trial judge corrected misstatements of evidence made by both counsel, the damage done by improper comments and submissions made by the Crown Prosecutor could not be repaired by that summing up. Counsel for the appellant could advance no criticism of what the learned trial judge directed the jury in a conscious effort to correct improper and unhelpful comments and submissions and misstatements of evidence.

13. Although counsel for the appellant at trial on conclusion of the Crown Prosecutor’s address initially indicated that he did not seek a discharge of the jury, overnight he reconsidered his position and prepared written submissions to support an application to discharge the jury which he made next day. The learned trial judge however, refused that application.

14. It is the case for the appellant that the learned trial judge erred in failing to discharge the jury upon application by his counsel.

15. To a very significant extent, both counsel in this court relied upon statements of principle in R v M [1991] 2 Qd R 68, which considered in some detail the authorities relating to the effect of improper comment and submissions by a Prosecutor upon an accused person receiving a fair trial.

16. Statements of principle made by courts in cases of this kind must of course be viewed in the context of the circumstances of the particular cases with which those courts were dealing. Because I propose to examine the closing addresses of both counsel in this case in the context of the evidence and the summing up, to determine whether, essentially, the basic right of the appellant to receive a fair trial on the three counts charged, may have been infringed, I will, at the outset, briefly analyse the statements of principle in R v M (supra) in the context of the circumstances considered by the court in that case.

17. The complainant in that case was the appellant’s daughter. She was aged about 14 years at the time when the offences were allegedly committed. There was an absence of fresh complaint. There were three charges; two of indecent dealing and one of incest. The complainant’s evidence was not corroborated. There was evidence that the complainant and her natural mother had conspired “to get” the appellant. The complainant agreed that the appellant had suggested that she seek psychiatric help because of nightmares and mood changes from which she suffered. It was observed by Cooper J that this was a strange course for him to adopt if the appellant had been recently sexually interfering with her. The appellant’s wife gave evidence casting doubt on certain aspects of the complainant’s evidence.

18. Evidence was placed before the court that the Director of Prosecutions delivered a final address which was “emotive and emotion charged”. In the course of that address he observed inter alia -

“We all know that the incidence of child sexual abuse has reached epidemic proportions.

…

This is the type of family background where child sexual abuse occurs.

…

These children who have been sexually abused rely upon you the jury for protection.  It is for you representing society to see that our children are protected from parents who abuse their position of trust and then endeavour to frighten their own child from reporting what has occurred and then persuade their child that what has happened is not abuse.

It is up to you the jury to protect these children.  If you do not, there is no one to protect them.”

19. The Director had observed in the course of his address, that corroboration in a charge of the kind laid against the appellant, was rarely if ever forthcoming because people who committed offences of this kind almost invariably did so when there were no witnesses.

20. The trial judge in that case dealt with those various matters to which I have referred. No complaint was made that he had not properly dealt with each of those comments in his summing up. The only issues were whether any damage was, or might have been done, by them and if so had it been repaired by the summing up.

21. Indeed the trial judge had observed that he was concerned that too much emphasis that the jury must disregard certain of the improper comments might only remind them of what had been said.

22. The statements made by the Director of Prosecutions, when analysed, contained three assertions of fact upon which no evidence had been led or sought to be led –

1. (a)
   Child sexual abuse had reached epidemic proportions;

2. Child sexual abuse frequently occurred in broken homes where children are pushed from pillar to post;
3. A family background of the kind of that of the complainant and the appellant was one where child sexual abuse occurs.

23. It is unhelpful to analyse in greater depth the circumstances before the court in R v M.  I refer merely to the analysis made by Cooper J, who wrote the leading judgment, at pages 72-77.

24. With respect to the principle to be applied, Cooper J observed at 82 –

“… in all cases of sexual interference of children, there is the possibility of tension between two principles fundamental to the administration of criminal justice.  The first principle is that offenders, where the evidence is available, ought to be convicted and sentenced… The second principle is the basic right of an accused to a fair trial on the material properly admitted into evidence and before the jury.  This right underlies the invariable general direction to juries that they are to determine the case on the evidence alone, free from any extraneous considerations, and, without sympathy or prejudice to the accused, the complainant or any other person.”

25. He continued at 83 –

“In cases of this type prosecuting counsel are required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused.  So too, the court must be quick to intervene in the interests of a fair trial whenever such conduct occurs or where the trial judge perceives a real risk that it will occur.

In the instant case, the statements were intended to appeal to such emotions and prejudices.  The statements as to the occurrence of such conduct as was the subject of the charges frequently occurring in the context of broken homes where children are pushed from pillar to post, were put as statements of fact. The jury was aware that such was the background of the complainant and the appellant.  In these circumstances the statements have the capacity to act as some “corroboration” of the complainant’s evidence when in fact there was no corroboration.  The statements were made by a person of public eminence who, some jurors in Brisbane may reasonably be expected to have known, has particular knowledge of child sexual abuse cases and who has conducted for the Queensland Government “An inquiry into sexual offences involving children and related matters” and delivered his interim report and draft Bill on 28 November 1985.  This had the capacity to lend credence to the statements as correct statements of fact.” 

26. Cooper J at 79 referred to and applied what had been said in R v Hay & Lindsay [1968] Qd R 459.   In that case, approval was given to the approach adopted in Nathan House (1921) 16 Cr App R 49 at 51 –

“‘The language of counsel complained of was highly improper and ought to have been checked at the time.  It is impossible to say that it could not have influenced the jury’.  There counsel had appealed to religious or racial prejudices and this was one of the grounds on which the conviction was quashed.  In my view, if counsel has done something improper which may well have influenced the jury, then there has been a mistrial.”

27. Cooper J, at 79, then went on to consider the judgment of W B Campbell J (as he was then) in Hay & Lindsay at 476 where he adopted what was said in Kenny’s Outlines of Criminal Law 17^th ed at 569 as a correct analysis of the duty of Prosecuting counsel.  It is unnecessary for me to restate that analysis which I also adopt. 

28. At 84, Cooper J continued –

“I have no doubt that the learned trial judge did everything he could to redeem the situation and no-one could cavil with the directions he gave to the jury.  It is clear that this Honour was attempting to negate the effect of the statements without unduly focusing attention on them to such an extent that the jury, notwithstanding the direction of the learned trial judge, would continue to allow the observations of the Director of Prosecutions to in some way influence its deliberation.”

29. His Honour then turned to the test to be applied in determining whether the improper statements and observations made by the Crown Prosecutor could be said to have led to a mistrial.

30. I will not repeat the analysis of authorities made at pages 84-85 of the report. At page 85, Cooper J summarised the position in these terms –

“In my view, the various formulations simply mean that if the words complained of, having regard to the conduct of the case and the issues before the jury, may as a serious possibility have influenced the jury to return a verdict of guilty, then, there is a miscarriage of justice within the meaning of s. 668 E of the Criminal Code and the appellant is entitled to a new trial unless the proviso applies.  In the instant case I am satisfied that the matters complained of may have had such an effect.  I am moved to that view having regard to the contents of the statements themselves and to the fact that the case was so finely balanced at the time it went to the jury.  There was no confessional material and there was no corroboration of the complainant’s evidence.  So much in the case depended upon issues of credit relating to the complainant, the appellant and his wife.  It is impossible to say that the assertion that the family circumstances in which the parties were placed were the type of circumstances where child abuse occurs, was not of itself sufficient to tip the scales in favour of the complainant and against the appellant.”

31. His Honour then considered whether the proviso under s 668 E should be applied. He adopted the approach of Mansfield J in R v Buckley [1944] St R Qd 147 at 153 and held that it should not be applied.

32. I have analysed the facts and the nature of the improper comments made in R v M because, in my view, with all respect to the submissions made upon behalf of the appellant the improper comments and statements of fact made in that case, were quite different in substance from those made in the present case as was their potential to lead to a miscarriage of justice much greater.  That of course does not mean that the principles stated in R v M are not to be applied upon this appeal.  The ultimate question, however, is whether the application of those principles in the circumstances of this case, will necessarily lead to a determination that there has been a mistrial and an order for a new trial.

33. In making this determination it is necessary to look at the final addresses made by both counsel upon the evidence and the manner in which the learned trial judge sought to repair improper comments and misstatements relating to the evidence and arguments addressed by counsel as to conclusions that might be drawn properly from it.

34. I will turn now to deal with five aspects of the Crown Prosecutor’s address, which the appellant contends led to a mistrial.

35. Because the appellant gave evidence, his counsel addressed the jury first. To some extent at least, some of the observations and submissions of the Prosecutor about which the appellant complains were probably stimulated by unsupportable comments and observations made by counsel for the appellant on the same or related topics or issues.

(1) The Crown Prosecutor informed the jury that the complainant had on previous occasions given a consistent account of events relevant to the issues to other people and invited them to conclude that because she had said the same things on previous occasions, they could believe the evidence she gave on trial.

36. I can find no evidence whatever in the record as to the content of any statement that the complainant may have made to police officers or to anybody else for that matter or as to any evidence that she may have given in committal proceedings concerning the events of which she gave evidence upon the appellant’s trial. There is no evidence in my view from which it could be inferred that prior to giving evidence upon the appellant’s trial she had made any statement which was either consistent or inconsistent with that evidence.

37. The first mention of any question of consistency was made by the appellant’s counsel in his address to the jury. The comment related to the assessment of a witness’s reliability. He observed, inter alia –

“... whether they’re truthful, whether they’re consistent, whether they appear to be remembering of an event that’s really happened or whether they appear to be remembering a story that they might have written ...”

38. Later the following submission was made –

“She gave a rather strange laugh during her evidence at the time of describing the events surrounding sexual intercourse. Once again, what you make of that is for you, but this is an event which she has at some stage spoken to police about and has come before this Court. It’s normal practice, and I assume it happened in this case, for witnesses to be spoken to before that happens. So it’s not a coy little girl, you know, for the first time ever having to say something about sexual intercourse. So that laugh I found rather odd, and perhaps you did too.”

39. The Crown Prosecutor in the course of his address made the following observation–

“She is telling the truth. Now there has been a lot of criticisms about what she said but she has been consistent. She has always told us the same stories.  My learned friend said, “Yes, she did have to tell a police officer in the confines of a police station, she did have to go to the Magistrates Court which is a small Court than this, and she did have to come here”. So she’s had to tell the story all the times. She has said more or less exactly the same thing. “This is what occurred at Avondale. This is what occurred at Sharon. This is what occurred when I was in grade 8 when he came into my room”. She has always said the same thing, always talked about the things happening in the order that she says. So she has been consistent.”

40. Later in the course of his address, the Crown Prosecutor commented to the jury, after discussing aspects of the complainant’s evidence –

“The fact is that she’s always been consistent – that “I can’t remember what he did on that occasion”, but when it came to the occasion that constitutes the rape, count 3, she’s always said “Yeah, he was naked.  He was naked when he came in.””

41. Later in his address, the Crown Prosecutor observed –

“My learned friend said that she gave her evidence as if she learnt this thing off by heart.  I mean, really was she giving it as though she’d learnt if off by heart?  I mean, she gave exactly the same evidence today – and she wasn’t looking straight ahead or straight down.  She gave exactly the same evidence and she went through it step by step, and perfect sense every time, exactly the same story.”

42. I would pause to observe merely, that the complainant gave most of her evidence in chief on the first day of the trial, and completed it in a short period of time on the second day. Thereafter, she was cross-examined by counsel for the appellant for about one hour. In cross-examination the same matters were traversed by the complainant as had been traversed in evidence in chief.

43. With respect to the consistency of the evidence the complainant gave upon the appellant’s trial, the comment that “She has always told us the same stories” is a proper matter for comment. It would be for the jury to determine the weight to be given to that submission.

44. However, his following comments relate to what she may have said to investigating police officers or upon committal proceedings. To my mind this comment does not accurately respond to what counsel for the appellant did say in the course of his address to the jury. Even if counsel for the appellant had said what the Crown Prosecutor purported to respond to, his response could not support an argument that the complainant had been consistent in statements made or evidence given before trial with the evidence she gave upon trial. The very most that could have been submitted was that there was no evidence that the complainant had ever made statements out of court which were inconsistent with the evidence she gave in court. The weight that any jury would give to such a submission when determining the reliability of the complainant would be so slight that one would wonder at the forensic advantage in making such a comment.

45. In the course of his summing up, the learned trial judge referred to submissions made by counsel for the appellant with respect to parts of the evidence of the complainant which might be thought to be inconsistent with other parts.

46. Dealing with the submissions made by the Crown Prosecutor on questions of consistency, the learned trial judge directed the jury in these terms –

“But it was referred to in Mr Vasta’s address that there have been consistency in N in giving her evidence or making a statement to the police. I should say to correct that, making a statement to the police and the committal proceedings and at this trial. Now, members of the jury, I direct you that all that can be said in this case is what did N say when she gave evidence to you in the witness box? You have no evidence of what may have been said by N on another occasion, but added, I should say this to you: that persistence in an allegation does not make it true. That is, if it’s not true, it is not true. To repeat it many times does not make it true. You, though, in this case have the evidence before you that’s been given by the witnesses and, as I have said to you, you decide this case on the whole of the evidence...”

47. In my view, it was open to the Crown Prosecutor to comment as to the consistency or otherwise of the evidence actually given by the complainant in court.

48. In my view, it is clear that the argument by both counsel concerning “consistency” of the complainant’s evidence, was directed essentially to the consistency of the evidence that she gave in chief with that which she gave under cross-examination.

49. It was unfortunate in my view, that either counsel adverted to questions of consistency between statements that the complainant may have made out of court and the evidence she gave in court. In considering this aspect of the Crown Prosecutor’s address, it is relevant, in my view, to take into account that he was attempting to respond to a comment made by counsel for the appellant in his address, which on the evidence ought not to have been made. If there was no evidence of the content of earlier statements (if any), it was not possible to infer from that that they must therefore have been consistent. It seems to me, the clear directions given by the learned trial judge highlighted the lack of substance in and indeed, lack of any basis for making such a submission.

50. Considered by itself, this aspect of the address by the Crown Prosecutor in my mind, could not justify a conclusion that it led to such unfairness as could not be repaired by the clear direction given by the learned trial judge.

2. The Crown Prosecutor invited the jury to have regard to the manner in which the complainant was dressed and to consider whether she was motivated to do that by a desire to cheapen herself “because of what happened to her”.

51. It is necessary to consider the address of counsel for the appellant as well as that of the Crown Prosecutor on this aspect.

52. In the course of his address to the jury, counsel for the appellant pointed out that the complainant’s evidence was unsupported in any material way and that the jury only had her word against that of the appellant to support the charges brought by the Crown. In the course of his address he made the following submission –

“If she’s wrong about that then what else might she be wrong about?  All of the allegations, of course, are contradicted by Mr L’s own sworn evidence.  You had the chance to observe him in the witness box and you will decide what, in your experience of people, you make of that.”

53. After analysing and criticising various aspects of the complainant’s evidence he observed –

“Well, first of all you saw how she gave her evidence.  Right at the start you saw the way that she looked straight ahead and gave monosyllabic answers.  Now, that could have been because of nerves or something, but another interpretation of it is that she’s not picturing the events in her mind, what she is really doing is giving an account that she has learnt off in some other way.

She gave a rather strange laugh during her evidence at the time of describing the events surrounding sexual intercourse…So that laugh I found rather odd, and perhaps you did, too.”

54. Dealing with an aspect of the evidence given by the complainant, he observed –

“Well, that, I’d suggest, ladies and gentlemen, is just a dramatic flourish that’s been added to her story.  The whole thing is a story.  This story has a climax like one you might see in a movie with the final push and the offender being knocked over and the threat which then makes him so worried that he backs off. It is like something you might see in Death Wish or Dirty Harry or something like that…

Now, you might think that this whole story has a certain B-grade feel to it.  This girl has not been raped, she hasn’t been sexually interfered with. She has, for whatever reason known only to herself, been prepared to tell the story about that happening, but when you look at the story it just doesn’t hang together and that’s how you know it’s fictional and not true.”

55. He observed –

“So in these sorts of cases, you would have to be very, very confident about the truthfulness and the reliability of the complainant, N B, if you were to reach a guilty verdict on any of these charges.

It’s never easy because, unlike in the dream world of Perry Mason and such like, witnesses tend not to break down under cross-examination and confess “Yes, I made it all up and I’d do it again”, all those sorts of dramatics.  Usually witnesses stick to their guns, even if they are presented with contradictions.  So that’s why the assessment of N has to be on more subtle factors than simply whether she stuck to her story or not.”

56. He continued –

“Now N’s evidence is … unsupported in any material way… You’ve just got her word for it.  No witness - no other witness in the case has been called to give evidence of seeing any act that looked like sexual misbehaviour.”

57. In the course of his address, the Crown Prosecutor observed –

“But just think about her demeanour in that witness box, it was one of someone who was telling you the truth.  It’s a very hard thing to do.  See, my learned friend criticised her because she was sitting and looking straight ahead and sort of answering the questions when she first got in.

…Think about her demeanour.  Think about these things. She is a very intelligent girl. We know that she has been accelerated in her schooling. She has left home for God knows what reason, because as far as the defence is concerned, it’s not because he raped her or touched her.  She, who had had long hair, long hair, and one could see that she with long hair, she would have been a very pretty girl. She has cut it all off.  Why has she cut it off ladies and gentlemen?  I mean, the very hair that he used to come in and stroke at night; the very hair that he would come in and play with; the thing that, as it were, made her attractive. She’s cut it off. 

And she comes in here dressed as she was yesterday.  I mean, leather pants and a mid-drift and so on, dressing in such a cheap way, almost as if that’s almost as what she sees herself because of what happened to her.  Defence say, nothing happened.  Nothing happened.  So what is it?  What is it?  Didn’t what you see in that witness box consistent with what she says has happened.”

58. The Crown Prosecutor later addressed the jury in these terms –

“You use your common sense, think about what has come out of that witness box because as you will remember yesterday when you came here, you all took an oath to bring in a true verdict according to the evidence, not according to bias or prejudice or sympathy; not according to, well, you know, have a look at her, the way she dressed and all those studs in her ears, the short hair – “I mean, you know, we don’t like her, we will acquit”.  And not for fact that, “Oh, you know, we see him in there and he’s got torn jeans”, and so on, “we don’t like him so we’ll convict”. Those sorts of things are irrelevant. What you must be convinced of is the evidence, the evidence solely, what it is that she says and the manner in which she said it.”

59. There is no evidence emerging from the record as to the appearance or manner of dress of either the complainant or the appellant upon his trial. Those are matters undoubtedly observed by the jury and one may infer that the comments by the Crown Prosecutor were based upon what was observed by the jury.

60. Undoubtedly, a jury’s assessment of the demeanour of a witness in determining a matter of reliability, would often be influenced not merely by the manner in which that witness gave evidence but also by the appearance of that witness. Tied up with that appearance, might well be the manner in which the witness was dressed and coiffured. The jury after all, had the opportunity to appraise the appearance and demeanour of the witnesses as they gave evidence before them. To the extent that the jury may have been assisted by the appearance, coiffure or manner or mode of attire of those witnesses in determining their reliability, in my view, it was open to both counsel to comment on those matters. The weight of course that a jury might give to such matters may be slight.

61. It may have been the case that the Crown Prosecutor took the view that the appearance, coiffure and manner of dress of the complainant when she gave evidence against the appellant was such that some members of the jury in any event may have had reservations about her reliability. On the other hand of course, the coiffure, jewellery and manner of dress of the complainant may have appealed to some members of the jury.

62. It seems likely that the Crown Prosecutor in addressing the jury, assumed that the appearance of the complainant may have indicated a lifestyle and attitude, which might cause some jurors at least to have reservations about her reliability. Having come to this conclusion, it would seem from the comments made, that he then made the suggestion that her lifestyle and attitude to the extent that it might be inferred from her appearance, may have resulted from the offences which she swore the appellant had committed upon her. It must have been thought that such a consideration may temper if not overcome any adverse impact which her appearance may have had upon some members of the jury.

63. The problem with this approach of course, is that the evidence in the trial generally indicated that the complainant had been a rebellious child during her adolescence. From time to time both her mother and the appellant had subjected her to disciplinary corporal punishment. There was nothing in the evidence to suggest that the reason the complainant had had her hair cut quite short was her revulsion at the actions of the appellant stroking her long hair when she was younger.

64. In my view, this observation to the jury in the course of the Prosecutor’s closing address probably would have had very little effect on a mature jury, even had the learned trial judge not dealt with it specifically in his summing up.

65. One would presume that many jurors would have seen young children of 14 years of age – some in their rebellious adolescence - coiffured, attired and adorned in just the manner adopted by the complainant.

66. Indeed upon reflection when objection was taken by the appellant’s counsel in the absence of the jury, the Crown Prosecutor conceded that his comments were unjustified. In the course of addressing the complaint about the content of his address, the Crown Prosecutor observed –

“It was my learned friend who brought up in his address, in effect, that the girl wasn’t any shrinking violet talking about sexual intercourse for the first time because she had already spoken to the police and given the police a statement about the whole matter.”

67. He continued –

“As far as the next submission - why leave home, cut her hair – I think I spoke about her appearance generally and… the fact is that we ask juries all the time to look at the witnesses, to look at their demeanour, to look at their manner.  Of course, one could not have helped look at the way in which that witness dressed yesterday.  The Crown says, well, you don’t look at them and discard them because you don’t like the way that they’ve cut their hair and they’ve done this.  But, on the other hand, this could also be true and consistent with what it is that she is complaining about – and, again, it’s really only a submission as to what inferences can be drawn from what they see.  The fact that she has cut her hair all off, when her evidence has been, realistically, from very early days that she’s had at least shoulder-length hair and now it’s all cut off, and she more or less has done as much as she can to make herself unattractive…”

68. The learned trial judge intervened –

“She might have thought that actually doing all of this might have made her attractive.  See, I don’t know that you can conclude that.  She might have thought by cutting her hair very closely and having more studs in her ear than I thought you could physically carry was all intended for a particular look.”

69. Ultimately the Crown Prosecutor conceded that he had gone too far in making the comment which he did to the jury concerning the appearance of the complainant and suggesting that they might infer that her appearance resulted from the treatment she received at the hands of the appellant, or at least that it was “consistent with” her having received such treatment.

70. In the course of his summing up the learned trial judge directed the jury in the following terms –

“Another matter that Mr Vasta addressed you upon, was N’s appearance at this trial.  Of course it is obvious she has had very short hair, but, members of the jury, you cannot draw in this case any conclusion about guilt or innocence about these offences by N appearing in this courtroom with short hair.  What motivation she might have for having short hair the day she gave evidence before you or the wearing of jewellery or the particular clothes has got no bearing whatsoever to your deliberations in the case.  You could not decide this case on that and you should not and I direct you that you should ignore Mr Vasta’s address in that respect when he sought to make a connection between N and her appearance here and these allegations.”

71. In my view, even had the learned trial judge not given that very specific direction, it is unlikely that the jury would have given any weight to the observations made by the Crown Prosecutor with respect to the complainant’s appearance being consistent with her being motivated to adopt or assume it because of the commission by the appellant upon her of the offences charged.

72. I am of the view that this submission by the Crown Prosecutor would probably have been disregarded by the jury in any event, as illogical, speculative and far fetched. However, in the light of the clear direction on this matter given by the learned trial judge to which I have referred, I am unpersuaded that that comment considered alone, was such as to have any impact upon the appellant receiving a fair trial upon the three counts brought against him.

(3) The appellant further complains that in the course of his address, the Crown Prosecutor observed -

“Now my learned friend said to you that you could trust his client’s evidence.  The Crown says look, that’s just rubbish.  It really was just litany of lies.  He just sat there and went ‘Nup, Nup, Nup, Nup, Nup, Nup didn’t happen’; no emotion, no nothing.  Look at his demeanour, look at his demeanour in the way that he made his denial and take into account what I said earlier on ‘Oh me thinks he doth protest too much’”.

73. While this style of advocacy may have its limitations, in my view, it is no worse than some of the submissions made by counsel for the appellant as to the manner in which the complainant gave evidence.

74. In my view, this part of the address could not be said to impact upon the fair trial to which the appellant was entitled.

(4) The Crown Prosecutor referred to the appellant’s evidence in cross-examination, when he denied that he thought the complainant was pretty, or that he had ever kissed her goodnight or that he was proud of her, or that he thought that she was intelligent as supporting an inference that his evidence was unreliable.

75. In the course of his address, the Crown Prosecutor commented –

“…and Shakespeare summed it up beautifully, “Me thinks he doth protest too much,” because those denials really show the truth.  The truth is that he was attracted to this girl, and that he did have this unlawful relationship with her and now, when push comes to shove, he tries to distance himself as much as possible. As much as possible. 

Masking his real feelings. He is trying to distance himself, to protest too much and to try and fool you that there was absolutely nothing untoward in this relationship and yet what it is that he says does not – does not coexist with what one’s commonsense is.  Any one of us who have been fathers to daughters, even mothers, know that you do feel proud of them. You do love them. They may be pains in the neck sometimes, they may irritate you, they may get your candour up, but deep down they’re still the person that you love.  Why does he distance himself? Why?

It’s really just a question of commonsense.”

76. It is contended for the appellant that these submissions, ignored the fact that if the complainant’s allegations were false, the appellant could reasonably be “ambivalent in his feelings towards her”.

77. The learned trial judge in dealing with this aspect of the evidence (together with other aspects which I will not detail) told the jury –

“Now members of the jury, you weigh up on the one hand was he making fair concessions in the sense that he was saying that he didn’t think that she was pretty; that, in his opinion, he didn’t think she kept her hair tidy? That was his opinion.  Would you weigh up “Did he make fair concessions?” in evaluating his evidence.  He conceded he did go into the bedroom to turn the stereo and light off.  He might have been prepared to say, “Well, I never went in there”.  Of course, the prosector said, “Well, he did try to exaggerate and that he tried to distance himself from having a loving relationship with N” but you ask whether or not you think there’s any significance in that cross-examination and those answers that he gave…I would also comment members of the jury, that you’re not here to decide whether he is father of the year, which is an expression which is being used in this trial.  You’re here to decide on this evidence in this case whether you are satisfied beyond reasonable doubt of the elements of each of these offences.”

78. The approach adopted by the Crown Prosecutor in this line of cross-examination to which he made reference, was to place the appellant in a situation which would give the Crown a talking point which ever way he answered the questions put to him. Had he said that he did find his daughter attractive and intelligent and so on, and that he did think she had nice long hair, undoubtedly those answers would have been relied upon to suggest an attitude consistent with him being, in fact, sexually attracted to her. That was the effect of some of the evidence given by the complainant upon which she was not cross-examined. On the other hand, his answers to all those questions being in the negative, the Crown Prosecutor then sought to persuade the jury that from their experience of the feelings normally entertained by parents of children, they would not merely reject those denials as false denials of natural parental feelings, but then infer from those “false denials” if not a consciousness of guilt, at least a desire to persuade the jury he found his daughter unattractive (whereas he found his other children attractive) because he wanted to hide a sexual attraction that the complainant had for him (which presumably his other children whom he agreed he found attractive, intelligent etc, did not have for him).

79. To my mind, an analysis of this approach shows how insubstantial it was and how unpersuasive it would almost certainly be to any sensible jury.

80. The learned trial judge in this summing up dealt with this argument adequately.

81. While undoubtedly such advocacy might be described as inadequate and unpersuasive, in my view, it falls far short of constituting such an irregularity in the conduct of the trial as to constitute any risk (much less a real risk) that the jury was influenced by it in reaching its verdict.

82. With respect to this aspect of the address, I am of the view that it did not put the fair trial of the appellant at risk.

5. The Crown Prosecutor commented upon submissions made by counsel for the appellant concerning the absence of evidence from her mother that she saw that the complainant was upset at the time of the events to which the charges relate.

83. The Crown Prosecutor observed –

“My learned friend says, “Well, there’s no one who hears her call out or anything of that nature”. So, no-one sees her upset.  Well, these things happened – we’re talking about things that happened so long ago she says she yelled out.  No-one heard her.  I mean, what more could she do?  She says, “This is what I did.”  You see, no question was ever asked to Mrs B, or Ms B, you know, “Did you hear anything what was going on in the house?”. I mean, if the defence want to make those sorts of comments, why didn’t they ask Ms B? She wasn’t asked one little bit.”

84. Again commenting upon counsel for the appellant’s comments as to the absence of fresh complaint the Crown Prosecutor continued –

“We know she ended up telling someone, otherwise she wouldn’t be here, but she never told mum.  So what?  So what? But never asked by the defence, “Why didn’t you tell your mother?” Never asked, “Why didn’t you complain to anybody else?”. Why is it if my learned friend is going to make these submissions to you, “Oh, well, look, you know, you’d think she was not supported and she’s not truthful because she didn’t complain straightaway”, why didn’t he ask one question about the reason she didn’t complain? Is it because if she were asked that she would have given an answer that would tell you why she didn’t complain?

And the defence, “Well, no it’s better not to ask those sort of questions”. Don’t ask a question that you don’t know the answer to, or better yet, if you do know the answer to the question, you know what not to ask.  It was never asked. Never asked of her “Why didn’t you complain?”. And yet, after she’s gone, the defence get here and say, “Well she didn’t complain”.  Ladies and gentlemen, that’s the opportunity to ask of why you didn’t complain.  There obviously was a legitimate reason for it.  It is not for me to ask.  She gives the evidence of what happens and so on.  It is up to them.”

85. In the course of evidence in chief, the Crown Prosecutor led from the complainant that she had never talked to her mother about what the appellant had done to her. She was asked whether there was any particular reason that she did not do that (with respect to count 2) and she said, “I just couldn’t do it”.

86. After recounting the events relevant to count 3 (the rape charge) the complainant said in chief that she did see her mother the next morning. She was asked –

“Q.Did you tell her anything?

A.I tried to, and then she walked off to see what my brother...

Q.Did you try after that to tell her?

A.I thought about it for a while and then I thought there wasn’t any point in it.

Q.All right. Did you eventually tell someone? – I don’t want to know who it was - and after that did the police get involved?

A.Yeah.”

87. Counsel for the appellant in the course of his address had dealt with the absence of fresh complaint in this way–

“N herself has not complained straight away.  That’s a factor you might think to be important, particularly in these circumstances where she says this touching on the side of the breast at Avondale was the first event of its kind, and that’s count 1 on the indictment. Well, you might think – and remember she said that she didn’t like it and it didn’t feel right? Well, you might think that in those circumstances, if that really happened, she’d be likely to complain about it to her mother, for example.  If, of course, she’d attempted to complain at an early stage and been given the brush-off, well then, you might understand why further complaints weren’t made, but there’s no evidence here that she ever attempted any such thing until right at the end, and that only came from her.  Of course, by that time, according to her evidence, it was all over; she’d made this threat to kill and that had caused Mr L to desist.”

88. It is contended for the appellant that his counsel was entitled to comment upon the absence of evidence from the complainant’s mother to the effect that she had not seen or heard anything at the time of the commission of the alleged offences, and as well was entitled to comment upon the complainant’s failure to make a fresh complaint. It was contended that the Prosecutor’s observation that –

“Don’t ask a question that you don’t know the answer to or better yet, if you do know the answer to the question, you know what not to ask.”

really invited speculation on the part of the jury as to why counsel for the appellant may not have enquired of her, the reason, if any, for her not complaining to her mother (or presumably to somebody else) at an earlier stage after the appellant committed the alleged acts of indecency upon her.  It was said that the observations were “quite sinister” in that it implied that counsel for the appellant was in receipt of some instructions about which the jury could only speculate and which might somehow have implicated the appellant in the commission of the offences.

89. Had the Crown Prosecutor led no evidence in chief from the complainant that she had not made a fresh complainant, as in my judgment, would have been the correct approach, then it would have been open to counsel for the appellant to determine whether or not to cross-examine the complainant to establish that no fresh complaint had been made. The Crown Prosecutor would then have been entitled to re-examine her to show what, if any, reason she had for not complaining. It was a departure from this normal procedure that led to the reticence of the Crown Prosecutor to attempt further to examine the complainant in chief, as to why she did not complain to her mother about the activities of the appellant with her. This whole problem in my view, has its genesis in a departure from a well established and traditional practice in placing before the jury matters relevant to the making or failure to make fresh complaint and the adducing of evidence to explain a failure to make such a complaint. In my view, having regard to the way this issue was first canvassed without objection on behalf of the appellant, it was not improper for the Crown Prosecutor to make the submissions to the jury which he did in reply to the submissions made by counsel for the appellant concerning lack of any explanation as to why she did not complain.

90. In my view, considered alone, this aspect of the Crown Prosecutor’s address does not support the appellant’s contention that those submissions, in the context of the summing up, must lead to the conclusion that there has been a mistrial.

91. Fresh complaint of course, could not corroborate the evidence of the complainant. It would only be hearsay evidence admitted as original evidence and as an exception to the general rule excluding evidence of statements made out of court, to demonstrate the consistency in the conduct of the complainant with the evidence as to indecent dealing she gave upon trial; essentially it goes to the reliability of the evidence she gives in court. It is based upon the probability that if conduct of the sort charged was directed towards the complainant – and particularly if it upset her as she said in this case that it did – it would be natural for her to complain to her mother or to some other person close to her at an early opportunity. Such evidence is admitted to enable a jury to have regard to the conduct of a complainant shortly after an alleged sexual offence and to evaluate its consistency with the evidence which she gives in court about that offence – ie to evaluate the reliability of her evidence.

92. The issue of absence of fresh complaint in this case, was relevant only to the credibility of the complainant. Without objection the Crown Prosecutor led evidence of the absence of fresh complaint. This matter was not pursued by counsel for the appellant, to any extent, in cross-examination; it was of course, open for him to comment upon the fact that there was no explanation from the complainant concerning the absence of complaint about the alleged rape (count 3) – although, in fact, she did explain in evidence in chief that she thought about telling her mother “for a while” and then “thought there wasn’t any point in it”. In my view, it was equally open for the Crown Prosecutor to draw attention to the fact, that counsel for the appellant did not seek any further explanation from the complainant concerning her failure to make a complaint. Both matters of course, went only to the complainant’s reliability as a witness. In my view, it is unhelpful to embark upon a consideration of the onus of proof on the Crown to prove all elements of the offences charged when determining whether the challenged submissions of the Crown Prosecutor on this matter of lack of explanation for absence of complaint prevented the applicant having a fair trial.

93. It was conceded by the Crown in this Court, that the Crown Prosecutor’s closing address contained language that was “flamboyant and unfortunate” although it was contended that it was not “intemperate and inflammatory” as was that considered in R v M (supra). It was further contended that all matters to which any objection could have been taken were adequately dealt with by the learned trial judge in his summing up.

94. It was contended that although from time to time the Crown Prosecutor used “colourful language” and indeed perhaps, language which would not have been used by counsel adopting a more analytical and dispassionate approach in addressing the jury, nevertheless, an evaluation of the address as being in many respects flamboyant and theatrical does not, for that reason alone, render the trial unfair.

95. In R v Day (2000) 115 A Crim R 80 at 87, it was said –

“But unless we are to interrupt criminal trials so that counsel may first write out their speeches, closing addresses must remain at least partly driven by adrenalin. Spontaneity is a valuable asset in criminal trials even if it leads to the occasional flourish that would be deleted on more mature reflection.”

96. In dealing with observations by counsel for the appellant in his address to the jury, that the complainant gave her evidence looking straight ahead when being cross-examined about the appellant’s activities with her, the Crown Prosecutor pointed out that the complainant was only 14 years of age when giving evidence and in the course of his response, observed –

“I don’t know when it was that she laughed.  My God, ladies and gentlemen, sometimes you have to laugh or you’d cry.  My God.  My goodness gracious me, criticised for that.”

97. There were other aspects of the Crown Prosecutor’s closing address, which replicated this sort of advocacy. It was criticised as unduly displaying an emotion that ought not obtrude into such an address.

98. In the course of argument concerning discharge of the jury, the learned trial judge raised with counsel for the appellant, an aspect of his cross-examination of the complainant. He had suggested to her that a circumstance relevant to count 2 (which related to an indecent assault committed at Sharon) existed at the time of the first indecent dealing allegedly committed at Avondale. The child was persuaded to agree with that circumstance in cross-examination because it was suggested to her by appellant’s counsel that she had already said that - which she had not.

99. It is unnecessary to go into the details of this peripheral matter. However, in his address to the jury, counsel for the appellant then proceeded to criticise the complainant for this “inconsistency” and/or uncertainty.

100. The learned trial judge observed in the course of the application to discharge the jury, that he thought that counsel for the appellant “was at fault for quite a bit of what Mr Vasta may have felt he had to straighten out”. The learned trial judge also observed that, although the complainant had given evidence that the appellant had told her that he loved her and had stroked her hair, this was not challenged in cross-examination of the complainant and indeed, was raised with the appellant only by the Crown Prosecutor in his cross-examination when the appellant denied the evidence given by the complainant.

101. Taking an overview of the conduct of the trial, which of course it is necessary to do in determining whether there has been a miscarriage of justice resulting from the jury being led to entertain bias against the appellant by virtue of the nature of the final address of the Crown Prosecutor, it is necessary to keep in mind that the jury acquitted the appellant on the charge of rape but convicted him of an indecent dealing based upon the same event. In my view, this acquittal on the charge of rape was almost certainly attributable to a doubt that the jury must have entertained as to whether the appellant had effected penetration of the complainant’s vagina.

102. In the course of her evidence she said she was not sure of the extent of penetration but that his penis went past the lips of her vagina and he started moving backwards and forwards.

103. In the course of cross-examination the complainant was asked whether she was still struggling “at the time his penis went into your vagina”; she said she was; she was then asked “are you certain that it went in, rather than just rubbing against your vagina?”; to which she replied “I’m pretty sure it went in.” She later conceded when pressed in cross-examination that she could not rule out the possibility that the appellant’s penis was only rubbing against her vagina.

104. On my evaluation of the evidence it would have been open to the jury to conclude that the appellant did effect penetration. Had it been so biased against the appellant as a consequence of the improperly emotion charged address delivered by the Crown Prosecutor, one would have expected a conviction on the count of rape. I keep in mind that the appellant denied any activity of a sexual nature with the complainant. I would construe the verdict given on the rape charge as one explicable by the jury’s acceptance of the complainant as a reliable witness with the reservation that a careful examination of her evidence did not persuade it beyond reasonable doubt that there had in fact, been a penetration, because although she clearly gave that evidence, she was persuaded in cross-examination to say only that she was “pretty sure it went in”. The jury must have kept in mind, that although the complainant was just under 14 years of age when she gave evidence, her alleged rape by the appellant occurred when she was 12 ½ -13 years of age.

105. Although in my view, the content of the final address was, in some respects, “flamboyant and unfortunate” and some of the submissions made not logically supportable, nevertheless I am unpersuaded in the light of the careful and detailed summing up of the learned trial judge that dealt with the “unfortunate” aspects of addresses of both counsel upon the trial, that considered either individually or collectively the aspects of the Crown Prosecutor’s address about which the appellant complains were such as to lead to a mistrial.

106. From my part, I could only express the hope that making all allowances for different styles of advocacy, Prosecutors will generally attempt to adopt an analytical and dispassionate style when addressing a jury, and avoid the temptation as far as possible, to pick up any gauntlet thrown down by opposing counsel’s resort to undue emotion and hyperbole.

107. In this respect, however, I refer to observations of Thomas JA in R v Day (supra) at para 28 where he observed –

"Numerous statements may be found in the cases about the undesirability of inflammatory or emotive conduct by counsel and in particular by Crown Prosecutors.  However it would be absurd to hold that advocates, whether for Crown or defence, are prohibited from appealing to the emotions or that they must perform their work without any passion, and without reference to human emotion…criminal trials deal with human situations and it is the duty of counsel to elicit answers which will give the jury appropriate insights into the conduct which will facilitate the drawing the inferences on issues such as motive, intention, knowledge and state of mind of various actors.  It is counsel’s duty to do so, and to try to do so persuasively.  The statements made in the above cases [R v Knuth [1998] QCA 161), R v Hay & Lindsay [1968] Qd R 459 and R v Ciseau CA 470 of 1993 and 155 of 1994 - 8 November 1994] condemning inflammatory and emotive conduct by counsel are not in my view intended to deny counsel their proper role in these respects…In the end the question on appeal is not whether counsel’s conduct has been unseemly but whether it has been prejudicial to a fair trial.”

108. Pincus and Davies JJA agreed with these observations.

109. More often than not, effective advocacy will involve avoiding any perception of theatrics or histrionics. A careful analysis of the evidence and the advancing of arguments based upon it, even if with an appeal to the emotions in a measured and dispassionate way, will normally more directly lead to attainment of justice upon a criminal trial than resort to histrionics and emotive outpourings based upon sympathy for the victim or perceived public antipathy towards perpetrators of offences of the kind under consideration. However, it must be kept in mind that few human decision making processes are devoid of an emotional input drawn from widely accepted cultural attitudes.

110. If resort is made to emotive blandishments, that of itself, will seldom lead to a mistrial in the absence of an appeal to bias, prejudice or sympathy or critical misstatements of evidence or legal rules, the perceived effect of which is incapable of rectification by the summing up. R v M (supra) was a case where the appeal to bias, emotion and sympathy, and the invitation in the address to the jury to “protect” the complainant and perhaps other children in similar circumstances by convicting the appellant, was such that there was a real possibility or risk that the directions given by the learned trial judge in his summing up, were insufficient to remove its impact upon the jury in the circumstances of that particular case.

111. In my view, this is not such a case, and it is understandable that the learned trial judge when asked to discharge the jury on the grounds argued in this Court, observed that they were “really quite precious”.

112. I would dismiss the appeal.

113. CULLINANE J:   I have read the reasons of Ambrose J and agree with them and the order proposed.