R v RH[2004] QCA 225

SUPREME COURT OF QUEENSLAND

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

[2]  WILLIAMS JA:  The appellant was convicted on 20 February 2004 after a trial of seven counts of indecent dealing with his two daughters who were under the age of 12 at the time.  He was sentenced to four years imprisonment with credit being given for 17 days spent in pre-sentence custody.

[3] On 19 March 2004 he lodged a Notice of Appeal against conviction and an application for leave to appeal against sentence.  At the outset of the hearing of the appeal his counsel abandoned the three grounds of appeal against conviction stated in that Notice and also abandoned the application for leave to appeal against sentence on the ground that it was manifestly excessive.  The court struck out the application for leave to appeal against sentence, and granted leave to the appellant to add as a ground of appeal against conviction the following:

“The learned trial judge erred when she failed to give any directions on the subject of preliminary complaint.”

[4] Evidence in support of the charges was given by the appellant’s two daughters.  Acceptance of that evidence would have been sufficient to support the verdicts of guilty.

[5] Pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978 the prosecution led evidence of preliminary complaints from the two girls to their mother and stepfather.  Relevantly s 4A provides:

“(1)This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.

(2)Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

(3)Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.

(4)If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant’s evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.

(5)Subject to subsection (4), the judge may make any comment to a jury on the complainant’s evidence that it is appropriate to make in the interests of justice.

(6)In this section –

‘complaint’ includes a disclosure.

‘preliminary complaint’ means any complaint other than –

(a) the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

(b) a complaint made after the complaint mentioned in paragraph (a).”

[6] In this case the mother of the complainant girls gave evidence that, prior to the statement of the girls being made to investigating police, one said to her that the appellant “tries to touch her privates and get her to touch his”.  A further complaint was made by that girl to her mother that the appellant “grabbed her by the arm, put her back in the room and tried to put his cock in her mouth”.  The mother’s evidence was that the second girl told her that she was lying on the lounge with the appellant behind her and the appellant “was touching her privates and trying him to touch hers”.  On another occasion the second complainant girl said to her mother that the appellant “tried to put his doodle up her bum”. 

[7] The girls’ stepfather was present when some of those statements were made.  His evidence was that the first girl said that the appellant “touches her privates” and that the appellant “tried to put his cock in her mouth”.  His evidence was that the second girl said the appellant “hopped on the lounge behind her and started to feel her”.

[8] The following statements relevant to the submissions made on the hearing of the appeal have been collected from various parts of the summing up:

“You are to determine the facts of the case based on the evidence that’s been placed before you in the courtroom. …

…

Evidence is what the witnesses have said from the witness box …

…

… Does the evidence of a particular witness seem reliable when compared with other evidence you accept.  …

…

In addition to [J]’s evidence concerning the offences that are charged, you’ve also got this other evidence that I was just talking about where she says there was other sexual activity.  She hasn’t been specific about when that activity occurred or in what circumstances and that activity is not the subject of any charges before you. 

So you can use it for one purpose only and that is if you accept her evidence, and she says it happened more than the four times, it goes to show, the prosecution says, the true nature of the relationship between the accused and the complainant, that is that if he’s doing it to her on a regular basis then you might more readily accept that there was an unnatural relationship between the two. 

So you should have regard to the evidence of those extra incidents only if you find it reliable.  If you accept it, you mustn’t use it to conclude that the accused is someone who has a tendency to commit the type of offence with which he’s charged.

It would be wrong for you to reason that and it would be wrong for you to say if you’re satisfied that he did do other acts, therefore it’s likely he committed the ones charged.  Remember the evidence of the incidents not the subject of charges, comes before you only for the limited purpose mentioned, and before you can find the accused guilty of any charge, you must be satisfied beyond a reasonable doubt that the charge has been proved.

…

… Some of these charges are not supported by other evidence. … Now counts 3, 4, 5, 6, 7 and 8 may be supported by other evidence, depending on what view you take of the evidence I’m about to talk to you about.

…

If you accept that counts 4, 7 and 8 occurred, you can use those counts in effect to support each other in this way: If you are satisfied that the conduct in those three counts is so strikingly similar that as a matter of common sense, and standing back looking objectively at it, the only reasonable inferences is [sic] that the same sequence of events occurred on each occasion, then you could use that to support each count interchangeably. 

…

You certainly must not proceed on the basis that if you thought he was generally the sort of person who might, or even would, commit these offences; therefore, he is the one who’s committed the charge that you’re considering.

…

In this case, there is some – some evidence that you need to consider; that the children may have had the opportunity to discuss what they were going to say together.”

[9] The learned trial judge in the course of her summing up in dealing with final submissions by counsel for the appellant noted that counsel asked the jury to consider it strange that the children could tell their mother and stepfather everything that happened when they had contact with their father “but they never mentioned any of this” – undoubtedly referring to sexual interference and the lack of any complaint at the time.

[10]  The argument of counsel for the appellant is that in the absence of any direction from the trial judge the jury could have regarded the evidence given by the mother and stepfather of preliminary complaints as evidence tending to prove the commission of the offences.  It is not without significance that counsel for the appellant at trial did not ask for any re-direction in that regard.  It may well be that the evidence in question from the mother and stepfather was not the subject of comment during the final addresses of counsel. 

[11]  But when the summing up is regarded as a whole the submission made by counsel for the appellant has substance.  It will be noted from the passages quoted above that the jury was directed to decide the case on the evidence, and that clearly included the evidence in question of the mother and stepfather.  The jury were expressly told how they could find some evidence supportive of the evidence of a complainant on a particular charge, and were also warned against drawing an inference from evidence of other uncharged acts that the appellant was more likely to have committed acts constituting the charges before the jury.  All of those directions were perfectly correct, but that only tends to highlight the omission to give any direction qualifying the use that the jury could make of the evidence of preliminary complaints.  A reasonable juror being told to decide the case on the evidence, and being told of ways in which particular evidence could or could not be used, could readily infer that all evidence not the subject of a qualification could be resorted to in determining whether the prosecution had proved its case beyond reasonable doubt.

[12]  Counsel for the respondent on appeal submitted that s 4A(4) created a problem in that it implied that the trial judge ought not give any direction in the course of the summing up with respect to evidence of preliminary complaints.  But that is not so.  The wording of s 4A(4) is in precise terms and it should not be given any wider operation than the words strictly construed require. 

[13]  A direction should have been given that evidence of the preliminary complaints by each of the girls to their mother and stepfather did not constitute proof of what actually happened; that is, it did not constitute proof of the commission of the offences in question.  Such a direction would not be caught by the wording of s 4A(4).

[14]  In the absence of a direction to that effect there was a likelihood the jury would treat the evidence of preliminary complaint as confirmatory of the facts on which the charges were based.

[15]  As was pointed out by the High Court in Jones v The Queen (1997) 71 ALJR 538, since R v Lillyman [1896] 2 QB 167 particulars of a complaint may be given in evidence but it is not evidence of the fact complained of.  Nothing in s 4A(4) alters that.  The High Court said at 539 that the “need for a specific direction as to the use which might be made of evidence of complaint is apparent from a number of decisions”, and they went on:

“Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged.”

[16]  In that case the court considered that it was not possible to conclude that the appellant did not thereby lose a chance of acquittal and a re-trial was ordered.  The court clearly rejected the submission that the proviso could apply in such circumstances.

[17]  That is the position here.  Regrettably the convictions must be quashed and a re-trial ordered.

[18]  The orders of the court should therefore be:

(1) allow the appeal and quash the convictions;

(2) order a re-trial.

[19]  JERRARD JA:  In this appeal I have had the benefit of reading the reasons for judgment of Williams JA, and respectfully agree with those and with the orders proposed.

[20]  The complainant children’s step-father gave evidence of a complaint by one child in what he said “would have been 2001”,[1] in terms that were consistent with the child’s own complaint concerning the offence which was count 1 in the indictment, which complaint was tape recorded on 18 May 2002 in an interview with investigating police officers.  The second complainant child whose complaints resulted in a conviction made a complaint at the same time in 2001, also heard by the step-father, in terms similar to count 6 on the indictment; and to her own tape recorded complaint, likewise made on 18 May 2002.

[21]  The step-father also gave evidence of an earlier and more general complaint from one child, made in the week before Christmas 2000, which had resulted in the step-father and mother moving their residence to an address apparently unknown to the appellant.  The step-father thought some telephone contact continued to occur between the appellant and the children,[2] and it was after an occasion of telephone contact that the specific complaints already described were heard by him in 2001.  He said that those complaints were repeated by the children in the same terms on another occasion when travelling in a car one day to see a solicitor in Ipswich, which he recalled had also occurred in year 2001.[3]

[22]  The children’s mother also gave evidence of a general complaint made by one child in the week prior to Christmas 2000, and on a day when there would otherwise have been telephone contact between the appellant and his children. That general complaint, that “he tried to touch her privates and get her to touch his”[4], resulted in the mother and step-father moving their residence in January 2001, and on her evidence the cessation of telephone or other contact between the children and the appellant until supervised contact was ordered by the Family Court of Australia in April 2002.  She described having heard complaints consistent with counts 1 and 6 in a car on the way to a solicitor in April 2002.[5]

[23]  In my respectful opinion it would have been appropriate for the learned judge to have directed the jury that the evidence from the two adults of those various preliminary complaints could be used by the jury only as those related to the respective complainant’s credibility.  Those directions could not contravene the prohibition in s 4A(4) of the Criminal Law (Sexual Offences) Act 1978, set out in the reasons of Williams JA.  But the judge could direct the jury that consistency between the accounts repeated by the adult witnesses and that given by the relevant complainant child would be something the jury could take into account as possibly enhancing the likelihood that that child’s evidence (given in chief by way of the provisions of s 93A of the Evidence Act 1977 and in person in cross-examination) was true.  Likewise directions would be appropriate that inconsistency between the terms of the complaint on one occasion and on another could be considered, as possibly reducing the likelihood that the complaints from the children were accurate and a truthful description of events which really happened.  Also potentially relevant to the accuracy of the complaints reported by the adults and repeated by the children was the proximity of the occasions when complaints were reported and their relationship with opposed orders made by, or impending proceedings in, the Family Court.

[24]  I agree that the learned judge was obliged to explain to the jury the matters described in [13]–[15] in the reasons of Williams JA; regard might be had to the suggested direction appearing in paragraph 64.1 of the Queensland Supreme and District Courts Benchbook.