R v Salter[2002] QCA 392

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

JONES J

CA No 119 of 2002

THE QUEEN

 v.

TREVOR ANTHONY SALTER(Appellant)

BRISBANE

DATE 26/09/2002

JUDGMENT

MR M V WESTON (instructed by Legal Aid Queensland) for the appellant

MR D L MEREDITH (instructed the Director of Public Prosecutions (Queensland)) for the Crown

DAVIES JA:  On 19 March 2002, the appellant was convicted after a trial, on three counts of indecent dealing with a child under the age of 14 and two counts of sodomy, all against his stepdaughter, aged between 5 or 6 and 9 at the time these offences were committed.  In his notice of appeal, the appellant appealed against each of those convictions and sought leave to appeal against his sentence imposed in respect of those offences.  However, at the commencement of the hearing, Mr Weston for the appellant, told us that he was not proceeding with his application for leave to appeal against sentence and that application was struck out.

In the appeal against conviction, Mr Weston sought leave to add a further ground of appeal in the following terms:  "That there was a miscarriage of justice, in that the learned trial judge ruled that evidence could not be called regarding an entry in a police document concerning the date of the offences."  Leave was granted to add that ground and, in the event that and the ground that the conviction was unsafe and unsatisfactory were the only grounds argued.

It is convenient to consider them in that order, but first, I will say something about each of the counts on which the appellant was convicted.
 

Count 1 occurred when the complainant was about five.  She described being in the appellant's bedroom.  The appellant was naked and asked her to touch his penis.  She then masturbated him until he ejaculated.  Counts 2 and 3 occurred on the same occasion, when the complainant was about seven.  He asked her to touch his exposed penis.  She refused.  He then asked her to roll over onto her stomach which she did and after some rubbing of his penis on her spine inserted it in her anus.

Counts 4 and 5 also occurred on the same occasion, about two years later.  The first involved his licking her vagina and placing his penis at the opening of her vagina and the second involved a further act of sodomy.  There was also evidence of another occasion on which the appellant exposed his penis to the complainant and to her sister in respect of which her sister also gave corroborative evidence. 

The complainant first complained about these offences in 1991.  She did not proceed with that complaint and there is some evidence that pressure was put upon her not to proceed.
 

She gave a further statement to police officers in 1999.  The appellant gave evidence denying the commission of any of these offences and his wife, the complainant's mother, gave evidence of absence of complaint from her daughter and of not observing anything amiss.  It appeared however that there had for a very long time been a bitter relationship between the complainant and her mother. 

In addition to the evidence of the complainant and her sister, perhaps the most telling evidence against the appellant was a letter written by the appellant to the complainant's husband in 1999.  In the course of that letter the appellant wrote: "At this stage [his wife] was doing night shift.  That left [the complainant] and me alone and it's not out of order but [the complainant] spent a lot of time in our bed.  We seemed again to show affection towards each other; God only knows how we starved for it.  And it actually improved the whole family situation.  Unfortunately and shamefully this led to fondelling [sic] that lasted for the next few years.  Intercause [sic] was never attempted as this was not fondling for sexual pleasure but an act stemming from our starvation for affection that got out of control.  Craig, I'm not a pedophile [sic] and I regret it deeply.  The fondling phased out by the time we built our second home at Windaroo."

The jury was plainly entitled to infer that this amounted to a confession of at least indecent dealing with the complainant.  I turn now to the grounds of appeal, dealing first with the alleged exclusion of evidence.

This ground arose out of the following.  Counsel for the appellant cross-examined the complainant about an entry in a police document made in 1999 which arguably suggested that the complainant had said that the conduct of which she gave evidence, or sexual activity, relating to the conduct of which she gave evidence, began in 1979.  Her evidence was, however, that it began in 1981.  The complainant denied having made this statement in 1999.  It was plain from the beginning of the case that the Crown did not intend to call the police officer who made the entry in this document and his name was not among those witnesses whose names the prosecutor read out at the commencement of the trial.

The ruling which the learned trial judge made in relation to which the complaint is now made was with respect to the admissibility of the document or of the capacity of defence counsel, to cross-examine another police witness, not the maker of the document, about what was contained in it.

Mr Weston, who appears for the appellant, concedes correctly that the argument advanced on behalf of the appellant at the trial was misconceived, that the document was not admissible without evidence from its maker and that the defence counsel was not capable properly of cross-examining the police officer, other than the maker.

His Honour then ruled on this, but during the course of making his ruling, he added, "his", that is the maker of the documents evidence, "would also be irrelevant and inadmissible and there is not a single word that has been said so far that would show any basis for admitting the item into evidence" - the item being the document.

The added statement that the evidence of the maker of the document would be irrelevant and inadmissible was, in my opinion, at least arguably and I think probably wrong.  Section 18(1) of the Evidence Act 1977 (Qld) allows evidence in these circumstances of an earlier inconsistent statement that was relative to the subject matter.  The fact as to when the improper conduct commenced was marginally, but it seems to me to be no more than marginally, relative to the subject matter of these proceedings.  Plainly, also, the evidence was relevant to the complainant's credit, but the evidence would not have been admissible on that basis under section 18.
 

Nevertheless, the appellant's counsel did not seek to call the maker of this document at any stage in his case.  Notwithstanding that, he called the appellant as a witness and other witnesses, including his wife, in support of him.

There was plainly room for confusion in the complainant's mind as to when the sexual misconduct of any kind commenced and it may be noted that the family moved to Queensland in 1979, so it may well have been in the complainant's mind that it was then or sometimes after then.  Her evidence at the trial, that it commenced in 1981 or 1982, eventually affirming on 1981, is not significantly different from this. 

It seems to me, therefore, that this ground of appeal must fail for two reasons.  The first is that it was, as I said, at most of marginal relevance only to the matters in respect of which the appellant was charged.  It would have had no bearing, in my opinion, on the ultimate conclusion of the jury, when one has regard to the conflict between the appellant and the complainant, the undoubted confession by the appellant and his improbable explanation of that confession when he came to give his evidence.  The second basis, in my opinion, is that counsel ought to have tested this matter, if he thought it was sufficiently relevant to make it worthwhile, by calling the maker of the document in his own case.  He did not seek to do so, or explain the absence of the maker of that document.  Accordingly, I would reject that ground of appeal. 

The second ground of appeal was that the conviction was unsafe and unsatisfactory.  Here the appellant relies on differences between what the complainant said in 1991 and what she said in 1999.  She was cross-examined in some detail as to these matters and the jury had the benefit of seeing her subjected to a detailed cross-examination.  Her explanation was, in substance, that the initial statement was confusing in its wording, that she was much younger when she made it, and that she was then unworldly and embarrassed when she made the statement, particularly as apparently she made it in the presence of her then partner.  These explanations were, I think, capable of being accepted by the jury and plainly were so. 

There was substantial conflict, though not specifically as to whether the offences were committed or not, between the complainant and her mother.  This was relied on also to support this ground.  We were also directed to the absence of complaint by the complainant to her mother at an early time.  However when one considers the poor relationship, as I have mentioned, between the complainant and her mother throughout this period, none of this in my opinion is surprising.  As to conflicts between the complainant and her mother, it is plain that the jury must have substantially accepted the complainant's evidence.

Finally reference is made to the absence of obvious injuries but the complainant did not assert serious physical injury, in particular that her anus had been torn or had bled.  It was not suggested by her that penetration had been deep.

No doubt in resolving some of these conflicts the jury was fortified in their acceptance of the complainant's evidence and their rejection of the appellant's evidence by the confession contained in the letter and the improbable explanation which the appellant gave for this letter. 

I do not think, therefore, that the verdicts were unsafe or unsatisfactory and I therefore dismiss the appeal.

WILLIAMS JA:  I agree with all that has been said by Justice Davies.  I would merely add with respect to the erroneous ruling by the learned trial Judge as to the admissibility of evidence from the police officer to whom the complainant allegedly said that the incidents in question commenced in 1979, that in my view this would be, if necessary, an appropriate case in which to apply the proviso found in section 668E of the Criminal Code in accordance with what was said by the High Court in Festa v. The Queen [2001] 76 ALJR 291.  I agree that the appeal should be dismissed.

JONES J:  I agree with the reasons expressed by the presiding Judge and Justice Williams and with the orders proposed.

DAVIES JA:  The appeal is dismissed.