R v B[2003] QCA 105

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with the reasons for judgment of Davies JA but for the following observations as to the appellant's claim that the evidence in respect of count 1 was unsafe and unsatisfactory because the prosecution could not negative the defences of accident (s 23, Criminal Code) and honest and reasonable mistake (s 24, Criminal Code).

[2] The complainant gave evidence, uncontradicted by other direct evidence, during a thorough cross-examination by experienced counsel, that after the appellant touched her between her legs when they were sharing the same bed, he did not say that when he touched her he believed she was her mother.  Ms T's evidence demonstrated the appellant's unhealthy sexual interest and relationship with the complainant, his young step-daughter.  The appellant later told the complainant not to mention the episode constituting count 1 to the police.  Furthermore, if the jury determined the appellant's guilt on count 4 before considering his guilt on count 1, they would also be entitled to take into account his conduct 18 months later in count 4, which involved touching the complainant inside her underwear whilst he was naked and asking her to let him lick her "pussy" for five minutes with the promise of $10.00 the next day, in deciding that the prosecution had negatived beyond reasonable doubt the appellant's claim of honest mistake or accident made to police in respect of count 1.  I am not, however, persuaded that the appellant's failure to give evidence supporting the defences raised in his interview with police can be regarded, in the circumstances of this case, as a matter supporting the jury verdict on appeal, beyond its obvious consequence that the complainant's evidence remains uncontradicted by other direct evidence.

[3] I agree with the orders proposed by Davies JA.

[4]  DAVIES JA:  The appellant appeals against two convictions for unlawfully and indecently dealing with a child under the age of 12.  Both convictions were on 10 October 2002 after a trial.  He was then sentenced on the following day to 18 months imprisonment.  He appeals against those convictions and seeks leave to appeal against those sentences.

[5] The appellant was in fact indicted on four counts for such offences.  The complainant was his stepdaughter.  Count 1, on which he was convicted occurred when the family were staying at the appellant's sister's house and the appellant and the complainant slept in the same bed.  The complainant woke up and felt the appellant's hand withdrawing from between her legs.  The appellant admitted to her that he had touched her on the vagina.  The complainant said that she told her mother about the incident but her mother, the appellant's wife, denied this.  In an interview with police the appellant said he recalled that an incident had occurred in the bed;  that he had rolled over and, mistakenly thinking the complainant was in fact her mother, put his hand on her vagina.  When he realized his error he pulled his hand away and apologized.  The complainant was in Grade 4 when this occurred.  The complainant said that she told her mother about this the following morning.

[6] Count 2, on which the appellant was acquitted, was alleged to have occurred in the following year when the family was living at Manoora.  The complainant said that it occurred at the start of her Grade 5 year.  On an occasion on which she was sleeping in the same room as two of her brothers she said she woke to find the appellant lying beside her.  She was on a mattress.  She was cold as the blanket was off.  The appellant was rubbing inside her underpants.  She pretended to stay asleep.  She wanted to yell out but was too scared as the appellant had been drinking.

[7] Count 3 on which the appellant was also acquitted was alleged to have occurred about a week later.  Again the complainant was sleeping on the mattress in her brothers' room and both brothers were asleep in that room.  She woke up to find her underwear down and the appellant rubbing her vagina.  On this occasion she did not conceal the fact that she was awake.

[8] She did not make any complaints immediately after each of counts 2 and 3 occurred.

[9] Count 4 on which the appellant was also convicted occurred in the complainant's bedroom at Manoora in late 2000.  She woke to find the appellant's hand under her underwear.  He was naked.  He removed his hand.  Then he said "Let me lick your pussy for five minutes, I'll give you $10 tomorrow".

[10]  The complainant said that the following morning she told her mother about this incident and the other occasions.  She said she complained in the appellant's presence.  She said the appellant told her mother that it was an accident the first time, the second and third occasions did not occur and he said nothing about the fourth.  The complainant's mother denied that the complainant had made any complaints to her about her husband's sexual misconduct.

[11]  The appellant has abandoned grounds (a) and (b) contained in his notice of appeal, leaving only ground (c):

"The verdicts of the Jury in respect of counts 1 and 4 were unsafe and unsatisfactory in that no jury acting reasonably could have returned those verdicts."

[12]  He also sought leave, which was granted, to add the following ground:

"Her Honour the learned trial judge erred when she failed adequately to direct the jury as to the use which could be made of evidence from the witness T."

The new ground

[13]  Ms T lived across the street from the complainant's house at Manoora.  She and her children were friendly with members of the appellant's family.  They would get together a couple of nights a week.

[14]  One evening, she said, the appellant came to her house uninvited when she was having a party.  He said he wanted to talk to her.  She said that he was a bit intoxicated and that he was carrying a VB long neck bottle.  She said that she and the appellant sat on her front lawn and he told her that he had a secret to tell her and that she was not to tell anyone.  He then proceeded to tell her that he had been "playing with" the complainant.  She asked him what he meant by that and he said that he had been having sexual intercourse with her, that he had been sleeping with her.  Ms T then had him removed from the premises.

[15]  Ms T then rang the police the following day and told them of the appellant's statement.  She also said that on the following night she told the complainant's mother what the appellant had said.  The complainant's family moved out later that month.  The complainant's mother confirmed that Ms T had spoken to her about the complainant and the appellant and that the police had said to her that they had received information that the appellant had been "playing with" the complainant.

[16]  It appears that the conversation which Ms T described occurred on 26 January 2000.  This was after the date on which count 1 was said to have occurred but before or, possibly, about the same time as counts 2 and 3 were said to have occurred.  It was, on any view, before count 4 was said to have occurred.  It was put to Ms T that the conversation had not occurred but she denied that.  Her evidence remained uncontradicted as the appellant did not give evidence.

[17]  The evidence of the conversation between the appellant and Ms T was not objected to by the appellant's counsel.  Nor, in my opinion, was there any basis for any such objection.  It was evidence of an admission of a continuing course of sexual offences by the appellant against the complainant at a time which, it seems, must have included the time of the incident alleged in count 1.

[18]  Mr Callaghan, who appeared for the appellant in this Court, whilst not conceding that this evidence was admissible, submitted that, once the evidence was admitted, there was a danger that the jury would impermissibly reason from it that the appellant was the kind of person who would commit the offences charged and consequently was more likely to have committed the offences charged;  and that her Honour should have given a warning about the danger of such propensity reasoning.  He made no similar submissions in relation to the fact that there were multiple counts.  In respect of the latter, the learned trial judge told the jury, as is common in such cases, that they should consider each count separately and by reference only to the evidence that applied to it.  And the jury plainly heeded that warning because they acquitted the appellant on two of the four counts.

[19]  In a case involving sexual offences against one child only, in which there is either evidence of multiple offences, whether charged or not, or evidence of an admission by the accused of sexual offences against the child, three common situations may be distinguished from one another.

[20]  The first is where there is evidence from the complainant only of other sexual offences, whether charged or not.  That evidence cannot support the complainant's evidence that the offence occurred because, self-evidently, the evidence of a witness cannot be supported or, as it was once put, corroborated, by his or her own evidence.  At most, this evidence may explain what otherwise may be inexplicable conduct, on the occasion in question, by the accused or the complainant.  The evidence does this by placing the conduct in the context of a relationship which the complainant said existed.  In some such cases, but by no means all,[1] it may be necessary to ensure, by appropriate directions, that the jury does not so impermissibly reason.

[21]  A second is where there is evidence, coming from a source other than the complainant, often in the form of an admission made by the accused to a third party, which supports the commission of another offence or other offences of the same kind by the appellant against the complainant.  The strength of this evidence will depend on the proximity in time of the commission of such offence or offences to, and their similarity within the offence or offences charged;  and their frequency.  But as well as performing the function described in the previous paragraph, such evidence is, at least, evidence of an "unnatural and abnormal passion" by the accused for the complainant at a time which may be relevant, and may be evidence of a relationship of habitual sexual gratification by the accused, thereby increasing the probability that the acts charged occurred.[2]  But even in some such cases a danger may remain that the jury may impermissibly reason that, because the accused has committed another offence of the same kind, he was the kind of person who would commit the offence alleged;  and in such a case it may be necessary to warn the jury against that line of reasoning.

[22]  A third situation, exemplified in this case, is where there is an admission by the accused, to someone other than the complainant, of a continuing course of sexual offending against the complainant at a time proximate to the incidents the subject of the offences charged.  Here the admission was made shortly after the date on which the incident charged in count 1 is said to have occurred and not long before the dates of the incidents charged in counts 2, 3 and 4.  Where, as in this case, the confession is of the commission of sexual offences of a more serious kind than those alleged, on a continuing basis, the likelihood is substantially increased that these offences occurred.  In such a case the risk of propensity reasoning is minimal, not least because the use to which the evidence may properly be put is more prejudicial to the accused than any course of propensity reasoning.  Perhaps unsurprisingly for this reason, no propensity direction was sought by the appellant's counsel at the trial.[3]

[23]  For those reasons I do not think that a propensity direction was required in respect of the evidence given by Ms T.  This ground of appeal must therefore fail.

The unsafe and unsatisfactory ground

[24] Mr Callaghan makes two contentions.  The first is that it was not possible, upon the whole of the evidence, for the Crown to negative accident or honest and reasonable mistake of fact.  This is put on two bases.

[25]  First it is said that a reasonable jury would not have excluded the possibility that the appellant had been asleep and consequently, as he said in the police interview, thought that the complainant was his wife.  It was even put to the complainant in cross-examination that he said as much to her at the time.  However the complainant strongly denied that any such thing was said and the appellant did not give evidence.  Nevertheless that seems to have been the appellant's case at trial in respect of this episode, as appears from his police interview.  He also admitted to his wife, in the complainant's presence, that some such episode had taken place though, according to her evidence, he admitted to touching the complainant only on the stomach.

[26]  Secondly, and additionally, it is said that the complainant may well have been mistaken as to what the appellant actually did.  In this Mr Callaghan fastens on the passage contained in the complainant's statement in which she said:

"That is when I woke up and thought he must have done something to me."

[27]  This last contention may be disposed of immediately because, in the police interview, the appellant admitted to touching the complainant on the vagina.  Moreover the statement relied on by Mr Callaghan was made after the complainant had initially described this incident to the police officer.  Her initial description, of this episode, to which she again referred in the evidence from which the above passage was taken, was in the following terms:

"Well I was on the bed sleeping, like I slept on that side, back to back, but um, he well I didn't know what he was doing until I woke up and he started yelling at me saying, what's the matter J, what's wrong with you.  I just touched your vagina and then I and he said that and then I um I said what and then went into my brothers' room and um um and I, I tried hiding.  I, I wanted to wake my brother up, but I couldn't he was asleep and um um he asked if I could come back in the room and he said he'd promise he won't touch me, so I did but I didn't sleep that night."

It is plain from this passage that the appellant admitted to the complainant, as well as to the police, that he had touched her on the vagina.

[28]  Further questioning revealed that what the complainant felt, which gave her a start, was his hand between her thighs.  The evidence containing the passage upon which Mr Callaghan relies was as follows:

"Well I wasn't actually asleep but I was sort of asleep so I didn't really pay much attention or once I felt something just go like that, that's when I woke up and I thought he must have done something to me so I sort of moved away and then he goes (ui) found out he did do something when he said it. (ui) Why don't you cuddle up close to me at all.  Yeah, I just touched you and your".

In cross-examination the complainant said that what woke her was "a hand leaving - coming out between my legs or - yeah, leaving between my legs".

[29]  The complainant agreed in cross-examination that, when the appellant first spoke to her, he sounded surprised.  It is from that evidence, as well as from his self-serving statement in the police interview, that Mr Callaghan submits the jury ought to have had a reasonable doubt as to whether the appellant had been asleep when he touched the complainant on the vagina and thought that it was his wife whom he had touched.

[30]  I do not agree that, on such slender evidence, the jury ought to have had such a doubt.  In the first place the jury had the opportunity of observing the complainant give her uncontradicted evidence of what occurred and of assessing its reliability.  From that, the jury could reasonably have inferred that any surprise exhibited by the appellant was caused by the complainant's sudden start rather than, as Mr Callaghan would contend, suddenly awakening.  It was put to the complainant, more than once during the course of an extensive and skilful cross-examination, that the appellant had said to her that he had thought it was her mother he was touching and on each occasion she strongly denied this.

[31]  Secondly the jury were entitled to accept the uncontradicted evidence of Ms T of an admission of the commission of sexual offences against the complainant at a time which, it seems, included the incident the subject of count 1.  It was made not long after the incident the subject of count 1.

[32]  Thirdly there was the uncontradicted evidence of the complainant that the appellant, in anticipation of a visit by police in consequence of Ms T's complaint, told the complainant not to mention this episode to the police.  This was some evidence of an acknowledgement of guilt in respect of the episode.

[33]  And finally, notwithstanding that the failure of the appellant to give evidence was not a matter for consideration by the jury, it can nevertheless be regarded by this Court in considering whether, on the evidence before the jury, the jury's verdict was unsafe, given that it was the appellant, and only the appellant, who would have known whether or not he had, in his sleep, believed it was his wife, not the complainant, whom he was touching.  For those reasons, taken together, the jury were entitled to exclude, as a reasonably possible explanation for his conduct, that the appellant, in his sleep, had mistakenly thought that the complainant was his wife.

[34]  Mr Callaghan's second contention is of a more general nature.  Whilst accepting that he could not put a submission based on inconsistent verdicts, at least because there was a rational basis of distinction between counts 2 and 3 on the one hand and counts 1 and 4 on the other, nevertheless he submitted that the fact that there were acquittals on counts 2 and 3 must raise, to some extent, doubts about the reliability of the complainant's evidence.  To that Mr Callaghan added two further factors:  one was what he submitted was the lack of any supporting evidence in any material particular and the other was the contradiction between the complainant and her mother as to whether she had made complaints to her about the appellant's conduct.

[35]  I do not think that any assistance can be derived by the appellant from the last of those matters.  The jury heard both the complainant and her mother give evidence.  The complainant said that not only did she complain to her mother but that her mother, like the appellant, had sought to dissuade her from disclosing to the police the episode the subject of count 1.  I can see nothing which indicates any error on the part of the jury in preferring the complainant's evidence to that of her mother on this question.  There was good reason for the jury to have concluded that the mother's evidence was designed to protect the appellant from conviction, or to explain her own inaction, rather than to tell the truth.  On the other hand there was nothing inherently incredible about the complainant's version of what occurred in this respect and any inconsistency in her evidence about precisely when she had this conversation with her mother is not one which would have caused the jury to doubt her evidence generally on this question.

[36]  It is no doubt true that there was no evidence which supported any particular aspect of the complainant's evidence but that is not uncommon in cases of this kind.  On the contrary it is more common than not that offences of this kind are committed in circumstances in which the only witnesses are likely to be the complainant and the offender.  I have already mentioned how the evidence of Ms T generally supported the complainant's evidence.

[37]  As Mr Callaghan has rightly conceded, there was some inconsistency in the evidence as to the dates on which counts 2 and 3 could have occurred.  This alone was sufficient, in my opinion, for the jury to have given the appellant the benefit of the doubt in respect of those charges particularly in view of the instruction which they received that the dates were elements of the offences.  They may have thought that the offences probably occurred as the complainant described but not at the times she thought they occurred.

[38]  For those reasons, in my opinion, this ground also fails and the appeal against conviction should be dismissed.

Sentence

[39] The appellant was between 27 and 29 when these offences were committed having been born on 2 April 1971.  He was 31 when he was sentenced.  His only previous convictions are for wilful destruction of property in 1999 and assaults occasioning bodily harm in 2001.  On neither occasion did the offence warrant imprisonment.  On each occasion he was fined.

[40]  The complainant has become more apprehensive of contact with males, including male teachers and she has a feeling of anger at her mother for not listening to her.  At the time of sentence she was estranged from her mother.  There is, however, a difficulty in assessing these consequences in deciding on the appropriate sentence in that, understandably, the offences of which the appellant was convicted were not, in this context, distinguished from those counts on which he was acquitted.

[41]  The learned sentencing judge quite rightly thought that, notwithstanding that the seriousness of these offences was towards the lower end of the scale of offences of this nature, in the circumstances they justified the imposition of a term of imprisonment.  However it seems to me that when one looks at the comparable cases this sentence appears to be excessive.  The worst aspect of this case was that the appellant was in a relationship of trust towards the complainant which imposed upon him a higher duty than would otherwise be the case and, correlatively on her, a greater difficulty in complaining about his conduct, as he would have known.

[42]  In my opinion the authorities referred to of R v W [2000] QCA 321;  CA No 141 of 2000, 8 August 2000, R v Larson;  ex parte Attorney-General [1998] QCA 468;  CA No 373 of 1998, 3 December 1998, R v Sivell [1999] QCA 506;  CA No 341 of 1999, 3 December 1999 and R v Schirmer [1995] QCA 242;  CA No 84 of 1995, 26 April 1995, whilst none of them is closely comparable to this, nevertheless when compared to this case, show that an appropriate sentence in this case would have been one of 12 months imprisonment.  I would therefore make the following orders:

1. dismiss the appeal against conviction;

2. grant leave to appeal against sentence;

3. allow the appeal;

4. set aside the sentences imposed on each of counts 1 and 4 and in each case substitute a sentence of 12 months imprisonment.

[43]  PHILIPPIDES J:  I agree with the reasons of Davies JA and with the orders proposed.