R v AK[2003] QCA 80

SUPREME COURT OF QUEENSLAND

[1] DAVIES JA:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.

[2] WILLIAMS JA:  On 15 December 2001 the Jury convicted the appellant of two counts of rape and one count of indecent dealing.  The complainant (L) was the same person in each case, and, it was alleged that each of the offences occurred between 1 January 1983 and 1 December 1985.  On 18 December 2001 the appellant lodged a Notice of Appeal against conviction alleging that it was unsafe and unsatisfactory.  By the same document he also sought leave to appeal against the sentences of seven and a half years imposed with respect to the counts of rape on the ground the sentences were manifestly excessive.  When the matter came before this Court (McMurdo P, Davies JA and Wilson J) on 29 July 2002 the appellant, who then appeared on his own behalf, indicated that he was no longer pursuing the issue of his sentence, and in consequence on that day this Court struck out the application for leave to appeal against sentence.

[3] When the matter was before the Court on 29 July 2002 the appellant referred to a written outline of argument prepared when Legal Aid was representing him.  That document sought leave to add an additional ground of appeal in the following terms:

“That the learned trial judge erred in directing the jury that S’s evidence could amount to relationship evidence which supported all three counts.”

It does not appear that the Court on that occasion formally granted leave to add that ground, but thereafter, and in particular in the hearing before this Court on 10 February 2003, it was assumed that leave had been given to add that ground.  In consequence this Court should now formally make the order adding that ground of appeal.

[4] Further, on 29 July 2002 the appellant handed to the Court a copy of a handwritten statement by one G dated 19 February 2002.  He contended that that statement constituted fresh evidence, and also indicated that there was additional fresh evidence available to him relevant to the evidence given at the trial by S.  The Court on 29 July 2002 did not give formal leave to the adding of a ground of appeal seeking a re-trial on the basis of fresh evidence.  What that Court then did was adjourn the matter so that both the appellant and the Director of Public Prosecutions could make further enquiries with respect to the alleged fresh evidence.

[5] When the matter came before this Court on 10 February 2003 the appellant was represented by Counsel recently retained, and it appears to have been assumed by everyone that the Court on the earlier occasion had in fact given leave to add a further ground of appeal relying on alleged fresh evidence.  In consequence this Court should now formalise the record by giving leave to add the following ground:

“There should be a re-trial because fresh evidence which could not have been obtained by the appellant by the exercise of reasonable care and diligence before the trial is now available and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”

[6] Before considering the two grounds of appeal which have been added (the only grounds addressed by Counsel for the appellant before us) it is necessary to refer in broad terms to the evidence at the trial.  The complainant was aged approximately 13 at the time of the offences and the appellant was then aged 29.  The complainant was a cousin of the appellant and she was then living with the appellant’s mother in Charleville; she had apparently been removed from the care of her natural mother.  The appellant lived in a caravan at the rear of the house in which the complainant was living.

[7] The complainant’s account of the three incidents was as follows.

[8] The first count occurred after she had gone to bed.  The appellant came into her room woke her, and asked her to “watch videos”.  When she did not agree he took her by the arm and said: “You’re coming with me to watch movies”.  The complainant was then taken to an area outside the house near the laundry where the appellant had sexual intercourse with her.  The complainant resisted but her actions were to no avail.  After the act was completed the appellant told her not to tell anyone or he would hurt her.

[9] The second incident in point of time, the third count on the indictment, occurred in the shower.  The complainant stated that the appellant digitally penetrated her vagina and touched her breasts.  Threats were uttered by the appellant.  The complainant did not remember how old she was when this happened, nor did she recall how long after the first rape this incident occurred.

[10] The third incident in point of time, the second count on the indictment, was very similar to the first.  The complainant described the appellant coming in to her bedroom one night and asking if she wanted to watch movies.  She initially refused and struggled, however she eventually accompanied the appellant outside to the laundry.  There the complainant described the appellant rubbing the outside of her vagina and then having sexual intercourse with her.  The complainant told him not to do it and was crying throughout the ordeal.

[11] The complainant also gave evidence of a fourth incident which was not charged.  She referred to the appellant approaching her in the toilet, grabbing her by the hair, kissing her and then slapping her.

[12] The complainant’s younger sister, S, also gave evidence for the prosecution.  She testified that she slept in a bunk bed underneath the complainant.  She described an incident where the appellant entered the room at night and asked the complainant if she wanted to go and “watch movies”.  She then gave evidence of seeing the appellant leaving the room holding the complainant by the hand.  She did not see what happened once the two left the room and went to sleep before the complainant returned.  She thought the appellant was in the room for two or three minutes but did not see any struggle.

[13] Evidence was called from a JC, the former partner of the appellant.  She was declared hostile and cross-examined by the Crown.  The significance of her evidence was that during 1984 the appellant lived in a caravan by himself in G Street, Charleville, the address where the complainant was then residing.

[14] The appellant gave evidence denying the offences.  He specifically denied ever entering the complainant’s room at night and taking her outside.

[15] On the hearing of the appeal the appellant relied on the affidavit of G as constituting fresh evidence and her statement of 19 February 2002 was tendered.  The Court excluded paragraphs 48 to 51 inclusive of that affidavit on the ground of hearsay.  G also gave oral evidence and was cross-examined.

[16] The respondent relied on affidavits by RA, L and S.  Only S was required by the appellant for cross-examination.  An affidavit of B was not relied upon because paragraphs 48 to 51 of G’s affidavit had been struck out.  RA lived on and off over 14 years as the de facto partner of G; the appellant was RA’s nephew.  RA was also the natural father of the complainant and S.

[17] The fresh evidence on which the appellant relies is the following material extracted from the affidavit of G:

“27.  At the time of AK’s trial, S was living in Ipswich, and I was living in Charleville.

. . .

29. Shortly before AK’s trial, S telephoned me at approximately 10.30pm and said words to the effect of:

“I have been subpoenaed to go to Court . . . L told me to say that I remember AK leading her by the hand out of the bedroom at night.”

. . .

31. I could tell by speaking to S that she was drunk.

. . .

35. S then said words to the effect of:

“I don’t remember anything like that . . . I don’t want to go to Court . . . I don’t want to say it . . . I don’t want to give evidence . . . I can’t remember back that far.”

36. I told S that she should go and see L’s solicitor.
37. S said words to the effect of:

“I don’t want to.  He was the one who subpoenaed me.”

38. S continued to cry and said words to the effect of:

“L told me to say it happened that way . . . I don’t want anything to do with it.”

39. S then said words to the effect of:

“I can’t go there . . . I just want to hide out.”

40. I then told S that she should go to Aboriginal Legal Aid.
41. S said words to the effect of:

“I can’t go because I’m white.”

[18] That statement should be compared with the actual statement written by G dated 19 February 2002 which was tendered; relevantly it states:

“. . . I asked S about what was going on with the case between AK and L.

S said that she didn’t remember that far back, and that she never seen AK holing L by the hand.

S also said that she only said that, because L tolded her that it did happen that way.

S said that she didn’t won’t anythink to do with, and asked me what to do by not going to Court.

S tolded me that she was scared I told her to ring L’s solicitor and tell her that she didn’t remember and that she never seen nothing like that going on. . . . “

[19] G refers in her affidavit to an alleged conversation between she and S after the latter discovered the existence of that statement.  According to G, S said words to the effect of: “I never said that”, and she replied: “Yes you did S you rang up when you were drunk and started crying and carrying on and I told you to go L’s solicitor.”

[20] The cross-examination of G is of importance for present purposes.  She was unable to say when the phone call in question occurred.  Initially she seemed to say it was shortly before the appellant was sentenced, but then she conceded it could have been while the trial was underway.  She asserted that it was S who initially raised the question of the Court case.  She specifically denied (“that’s a lie”) the proposition that it was she who raised the subject of the trial.  That denial must be contrasted with the contents of the statement of 19 February 2002 where she wrote that she asked S about what was going on with the case.

[21] When it was put to her that the reason given by S for not wanting to give evidence was that she did not want to get involved in a family dispute with her sister on one side and AK on the other, she initially replied: “Yeah, well, that might be true.”  But then she seemed to resile from that and assert that the only reason given by S for not wanting to give evidence was that she couldn’t remember back that far.

[22] G was cross-examined at some length as to what she did in response to the telephone call.  Essentially her response was that she never repeated any of it to anyone, not even to RA, her de facto.

[23] What then, in my view, became of great significance was her evidence as to how the document of 19 February came into existence and what happened to it before it was revealed to the Court by the appellant in July 2002.  D was the appellant’s sister.  D apparently approached G shortly before the document was made and asked her to listen to a CD.  Initially G said: “It was about RA supposed to interfere with – with D or something, I don’t know something like that.”  It certainly became clear that the contents of the CD involved the suggestion that RA, G’s de facto husband, had interfered with someone else.  After hearing the contents of the CD, G started crying; later on in her evidence she said that at that time she was “very upset” and “very angry”.  The following questions and answers are material:

“Q.  And a man who was not the man was imprisonment by this time? – A.  No.  Well, she – she told me about the CD and when I listened to it, after I listened to it, I started crying and she told me she would give evidence – make a statement about – about the conversation.

Q.  On the CD? – A.  No, about S.

Q.  Right.  Well, how did D know about the conversation with S? – A.  I told her.

. . .

Q.  So the first time you were really asked to recall it or volunteered your recollection of it was when D asked you about your knowledge of things? – A.  Yeah, well, when she played me that CD well I – I ended up telling her about that – about the conversation that me and S had.”

[24] Later on she gave the following answer:  “ . . . after she played me the CD she asked me and I told her what – the conversation that me and S had and she told me she write one out and go and sign it in front of the JP.”  It appears that G wrote out the statement and went with D to have it witnessed by a JP.  According to G, D “didn’t ask me to help at all.  She just asked me.”  It is clear from her evidence after it was signed in front of the JP she gave the statement to D.

[25] The only inference available is that some time later D gave the statement, or at least a copy thereof, to the appellant. 

[26] When it was put to her that “this business about the CD, did that have something to do with some suggestion in your mind that people in D’s family had been trying to bribe RA” she responded, “oh well – well, not actually trying to bribe him at all, no. . . .”

[27] Before considering that evidence further it is necessary to refer to the evidence in response from the Prosecution.  RA, the sometime de facto of G, swore he did not know anything about any relevant conversation between G and S. L, the complainant, swore in her affidavit that S had told her that she had seen the appellant take her out of the room “before it even went to Court or I made my statement.”  She denied asking S to say anything at all, and specifically nothing along the lines attributed to S in the alleged conversation with G.  As already noted she was not cross-examined before this Court.

[28] S in her affidavit relevantly said:

“4.  I recall that just after the sentencing of AK, I think T rang me, that’s my brother’s wife, T.  I was talking to her for a short time and then G got on the phone and she told me that there were threats made to my father from D and F.  This conversation went on for about 20 minutes. G told me that a CD was sent to my father, which was a bribery, saying that my father had molested, interfered with AK’s sister D.

5.    This was the first occasion that I spoke to G since the start of the case against AK.  I cannot recall the time prior to that which I spoke to G, but it is probably six months or more.
6.    I recall talking about the case against AK with G.  G was telling me about threats made towards me and L and threats against my father from AK’s family.  During this G said words to the effect “How do you know that they were more or less having an affair, or L wasn’t doing this just for money”.
7.    I said words to the effect of “I can only tell the truth of what I seen and what I know from living at J’s.  I have nothing to lie about.  I wasn’t sticking up for AK and I wasn’t sticking up for L”.
8.    More or less they were talking to me about my father and the bribery, or talking about the CD rather than concerns with L and AK, saying they were taking it out on Dad now because AK is in jail.
9.    I did not say that I was scared or that I didn’t remember that far back.  . . .
10. G did not tell me to contact L’s solicitor.  L did not have a solicitor that I knew of as the Police were handling the case.”

[29] Cross-examination of S did not establish any major inconsistency with her affidavit.  She conceded she regarded G as a friend, and said she phoned on a number of occasions primarily to speak to her father.  On many of those occasions she also had a conversation with G.  She seemed to acknowledge that there was a phone call at about the time of the trial, but she specifically denied making the critical statements attributed to her by G.  S conceded that she was upset when she received the subpoena to give evidence at the trial, primarily because it involved close members of the family and she “didn’t want to be dragged through the mud of our childhood.”  She specifically denied saying to G that she didn’t want to give evidence because she couldn’t remember that far ago.  She also denied that the complainant, her sister L, ever asked her to give evidence.

[30] It is in those circumstances that the ground of appeal seeking a re-trial because of the existence of fresh evidence has to be considered.

[31] The threshold question where such a ground is relied on is whether or not the evidence in question qualifies as “fresh evidence”.  The relevant test to be applied has been considered by High Court in cases such Green v The King (1939) 61 CLR 167, Ratten v The Queen (1974) 131 CLR 510 and Lawless v The Queen (1979) 142 CLR 569.  In broad terms the evidence must not have been available to the defence at trial nor evidence which could have been available to the defence at trial by the exercise of reasonable diligence.  Before this Court Counsel for the respondent did not seriously submit that the evidence of G did not satisfy the test for “fresh evidence”.

[32] The High Court in Ratten, Lawless, Gallagher v The Queen (1986) 160 CLR 392, and Mickelberg v The Queen (1989) 167 CLR 259 considered the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence.  Prior to Gallagher the language used was “whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused.”  Since Gallagher the question has been formulated by asking “whether the Court considers that there is a significant possibility that the Jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”  The judgments in Mickelberg tend to suggest that for practical purposes there is little or no distinction between the expression “significant possibility” and the term “likely”.  For present purposes I will adopt the “significant possibility test” in accordance with the most recent authority.

[33] G was not an impressive witness.  It was patently obvious that there were tensions between members of the extended family involved in this case.  Clearly some animosity exists between some of the persons involved; it is not possible to fully appreciate the undercurrents involved.  There is, however, no doubt that the alleged fresh evidence first came to light in the document of 19 February made after G had heard the contents of the CD which involved the allegation that her de facto husband had interfered with someone else.  The circumstances in which that document came into existence are quite bizarre, and there is no rational explanation if the contents be true for G then giving the document to D and not taking steps to bring its contents to the knowledge of the appellant.  The question must be asked, if she had not heard the contents of the CD would she have revealed the alleged conversation with S to anyone.

[34] Before this Court S maintained the truthfulness of the evidence she had given at trial, and denied the critical aspects of the alleged conversation between she and G.  Looked at objectively her evidence was more credible than that of G. She did display some emotion and aggression whilst in the witness box but that could be regarded as explicable given the family tensions involved.

[35] As already noted the complainant maintained the truthfulness of her account of the rapes given at the trial and asserted that she was informed by S of what she had seen before any statement was made to the Police.  It is already noted she was not cross-examined in this Court.

[36] The crux of the alleged fresh evidence must be the statement of 19 February.  That was the first occasion on which the alleged statements by S came to light.  The circumstances in which that document came into existence, and the fact that it was given to D in the context of what could be regarded as circumstances of blackmail, mean that the evidence is almost devoid of credibility.  It would not provide a rational basis for rejecting the evidence of the complainant that she was raped by the appellant.

[37] Having regard to the evidence given at the initial trial, and all the evidence placed before this Court on the hearing of the appeal, I am of the view that the evidence of G is not such as to give rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant had that evidence been before it at the trial.

[38] That leaves for consideration the question whether there was a misdirection given by the learned trial judge in telling the jury that S’s evidence could amount to relationship evidence supporting the complainant’s evidence on all three counts.

[39] In the main body of the summing up the learned trial judge told the jury that there was “some independent evidence which might support her account, depending on what you make of the evidence.”   That was a reference to the evidence of S.  Without quoting extensively from the summing up it is sufficient to say that the learned trial judge told the jury that it was a matter for them whether the evidence was capable of supporting the complainant.  The jury was told that they might find that the evidence of S showed that there was “some sort of sexual relationship” between the complainant and the appellant.

[40] The jury asked for a redirection; essentially the question raised was whether S’s evidence related to the first or second charge of rape.  The learned trial judge again read all the evidence relevant to that issue to the jury by way of redirection.  They were told that they could regard the evidence as directly supporting either count of rape, that is it amounted to corroboration, depending on their findings with respect to it, or they could use it in another way which was explained as follows:

“. . . you accept that it is evidence that shows there was a relationship of a sexual nature between the complainant and the accused then you could use it if you find that it does support the case in that way in relation to the other counts as well, as supporting evidence, because it would tend to show – or may it tend to show, depending on what you make of it, that there was this relationship between the two that was not the usual sort of relationship between a grown man and a 13 year old child.”

That restated a passage in the body of the summing up to similar effect.

[41] The evidence of S was clearly capable of increasing the probability that the complainant’s testimony was truthful.  The jury was entitled to conclude that the evidence in question satisfied the test referred in cases such as R v Kerim [1988] 1 Qd R 426 at 431-2 and R v M [1995] 1 Qd R 213 at 221 and 224.

[42] In all the circumstances the orders of the Court should be:

(1)Grant leave to amend the notice of appeal by adding the following grounds:

(a) “That the learned trial judge erred in directing the jury that S’s evidence could amount to relationship evidence which supported all three counts.”

(b)“There should be a re-trial because fresh evidence which could not have been obtained by the appellant by the exercise of reasonable care and diligence before the trial is now available and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.”

(2)Appeal against conviction dismissed.

[43]  CULLINANE J:  I have read the reasons of Williams JA in this matter and agree with them and the orders proposed.