R v FI[2004] QCA 400

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Davies JA.  I agree with the orders proposed by His Honour, and with his reasons.

[2]  DAVIES JA:  After a trial by jury the appellant was convicted on 10 June 2004 of incest with his daughter, on the day of her 15th birthday, 3 August 1979.  He appeals against that conviction on two grounds;  the first that the verdict was unsafe and unsatisfactory;  and the second that the learned trial judge erred in not giving the jury an appropriate direction in accordance with Longman v The Queen.[1]

[3] In addition to giving evidence of the act of intercourse which constituted the incest the complainant gave evidence that the appellant had commenced indecently touching her vagina from as far back as she could remember.  This occurred over many years, according to her, maybe once a week.  She was unable to particularize any of these occasions as to time and place other than that they occurred in the family home.  Nor was she able to recall whether she said anything to the appellant on these occasions.  But she does recall that the appellant on one or more occasions told her not to tell anyone otherwise he and her mother would break up or he would get into trouble.  She also swore that she was in fear of her father.

[4] The complainant also gave evidence of other acts of sexual interference with her by the appellant prior to the relevant act of intercourse.  These included him putting his fingers into her vagina, inserting a six inch fluorescent light bulb into her vagina and touching her on the breasts.  She also complained of two acts of violence against her by him;  one in which he hit her over the head with a bread board and one in which he hit her with a frying pan.  Again she was unable to recall the circumstances in which these occurred, where they occurred or when they occurred other than that they occurred in the family home.

[5] The vagueness of the complainant's evidence in these respects may be contrasted with the specificity of her complaint in respect of the act the subject of the appellant's conviction.  As already mentioned she recalled that it occurred on her birthday.  She also recalled the precise circumstances in which it occurred and she recalled that this was the first occasion, of many as it turned out, in which her father had intercourse with her.  She described in some detail that she was having a shower prior to getting ready for her birthday party.  The appellant came into the bathroom, ordered her out of the shower and ordered her to lie on the bathroom bench.  She did as she was told, lying on her back.  The appellant then placed her legs over his shoulders and placed his penis into her vagina.  He had sexual intercourse with her.  When he finished he gave her a "squirt bottle" containing soapy water telling her to flush out her vagina with it so she would not become pregnant.  She said that the appellant took the bottle from the medicine cabinet.

[6] The complainant also gave evidence that the appellant thereafter had sexual intercourse with her in her bedroom at night on a regular basis.  On each occasion he would come into her room and have intercourse with her from behind whilst the complainant lay on her side.  This was, she said, because he had a bad back.  She was no more specific about these acts than this.

[7] The complainant ran away briefly when she was 18 and stayed with a friend GW who was unable to be located by police at the time of trial.  She said that she told GW something of what the appellant had done to her.

[8] She returned home after a short while because, she said, of the squalid conditions in which her friend lived.  She remained at home until she was 28 or 29 during which period she had married PH when she was 21.  They lived as a couple in the appellant's home and she gave birth to her first two children whilst living there.

[9] The complainant told her sister about her father's sexual misconduct in September 2001 after which she complained to Family Services.  The sister gave evidence that she witnessed her sister being hit with a bread board and witnessed her being hit with a frying pan.  She also said that on occasions she saw the appellant with a fluorescent light approximately six inches in length.

The first ground:  that the jury's verdict was unsafe and unsatisfactory

[10]  The first ground of appeal, that the jury's verdict was unreasonable, was based on the fact that the complainant's evidence was largely uncorroborated, that it involved events which occurred more than 20 years before the trial and that there were a number of inconsistencies and mistakes in the complainant's evidence which, it was submitted, ought to have given rise to a significant possibility that an innocent person had been convicted.

[11]  The complainant gave evidence that she was positive that the appellant was uncircumcised.  She said that she was positive because she observed his penis on the first occasion on which he had intercourse with her, the occasion which I have described, and was able to say from that that he was uncircumcised.  Her evidence in that respect was wrong and the Crown formally admitted at the trial that the appellant was circumcised.  However it seems that the complainant had an opportunity to observe the appellant's penis only on this occasion.  There were no other occasions on which he exposed his penis to her.  The other acts of intercourse occurred at night, in the complainant's bed, in circumstances in which, because he entered her from behind, she would not have had an opportunity to observe his penis.  It is not surprising in the circumstances that, despite her positive evidence, she was mistaken about this.  I do not think that this mistake reflects adversely on the reliability of her evidence of the act the subject of the conviction.

[12]  It is also correct, as I have previously indicated, that the complainant's evidence was vague as to the circumstances of the acts of interference with her which preceded the act of intercourse on 3 August 1979.  That is not surprising.  They were a long while ago, they were of similar kind though increasing in seriousness and they would have tended to blend into one another.  The same may be said of the regular acts of intercourse which took place after 3 August 1979.  There was little if anything to distinguish one from another.

[13]  The complainant said that the appellant continued to require her to squirt soapy water into her vagina after intercourse until, on one occasion, he told her he had an infection and had been told by the hospital that he was infertile.  After this, she said, he did not make her flush out her vagina.  The appellant on the other hand swore that he had never been told that he was infertile.  His wife also purported to swear that he had never been tested for infertility though presumably all she could properly have said was that he had never told her that he had.

[14]  There was also an inconsistency between the complainant and some other witnesses as to whether the complainant had allowed her own children to be alone with the appellant.  She swore that she never had.  Some other witnesses said that she had.

[15]  There was also evidence that the appellant and his wife had a poor relationship with the complainant's husband.  The appellant had sworn that the complainant had pleaded with him to stop her husband being prosecuted when he was accused of stealing a chainsaw and other items.  The complainant denied pleading with her father to take this course.  This was said to be some evidence of a motive for the complainant to make a false complaint against her father.

[16]  The appellant's wife also swore that she had never seen a fluoro light in the house;  that she had never heard the complainant taking late night showers, which the complainant swore she did after each act of intercourse;  and that although she had observed an incident in which the appellant had hit the complainant with a bread board it was in circumstances which, as the appellant had said, were of a humorous rather than aggressive kind.

[17]  One other matter relied on by the appellant in support of the ground that the jury's verdict was unreasonable was the learned trial judge's direction to the jury that the evidence of the complainant of violent acts by the appellant was relevant to her credit.  As it turns out, this was plainly right for it seems that the appellant's counsel sought to discredit the complainant on this basis at the trial.  If the complainant was accepted in respect of her evidence about these events it also supported her evidence that she was generally in fear of the appellant and explains her failure to complain soon after the offences were committed.

[18]  The jury was in a much better position than is this Court to assess the evidence of witnesses other than the complainant including, of course, her mother.  We should not start with any preconceived view that her evidence was reliable.

[19]  The evidence of other witnesses was as to peripheral matters and the principal question which the jury had to consider was the reliability of the complainant's evidence, as against that of the appellant, as to what the complainant said occurred on the occasion of her 15th birthday.  Her evidence was, as I have said, specific and, as far as can be gathered from the transcript of her evidence, apparently convincing.  I do not think that, in all of the circumstances, the verdict was an unreasonable one.

The second ground:  the Longman direction

[20]  The learned trial judge's direction, in reliance on Longman, was in the following terms:

"I should say another thing to you about this particular case - well, cases of this nature where there's a long delay between reporting the incident and what the complainant says happened.  So she says this happened in 1979.  The first complaint we know from the admission that was made was on 10 September 2001 to Family Services.  So what's that?  21 years.  22 years.  So there is a big delay.  Of course, then there is a further delay because it is three years since the complaint was made to Family Services until it gets to Court.  That has an important consequence.  It may be that her evidence can't be adequately tested or met after the passage of so many years because the accused has lost, by reason of that delay, means of testing and meeting her allegations that might otherwise have been available.  By that I mean this, if someone said to you, 'You robbed the ANZ Bank in Turbot Street last Friday.', you could say, 'Hang on, I can tell you what I was doing last Friday.  I was in Gympie for the whole day.  I can call people.  This woman from the shop would remember me.  I spoke to the neighbour.', so you are able - you might be able to get that sort of information together.  If someone said, 'You robbed the ANZ Bank in Turbot Street 20 years ago on a Friday.', that's much more difficult to do.  So that's the consequence.  By the delay, the accused has been - might have been denied the chance to assemble, soon after the incident was alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened.  Everyone's memory about what happened on her 15th birthday would have been much better closer to the day.  That's the only consequence.  Had the complaint been known to the accused soon after the alleged event, it must have been possible then to explore the pertinent circumstances in detail and, perhaps, to gather and to look - to call at the trial, evidence throwing doubt on the complainant's story, opportunities which might have been lost by the delay.  So that's a consequence you have to keep in mind."

[21]  The complaint is that what the learned trial judge said there was necessary, in order to comply with Longman, but not sufficient to do so.  It was submitted that, in addition, her Honour ought to have said something like:

"So I warn you that it would be dangerous to convict upon the complainant's evidence alone unless, after scrutinizing it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy."

[22]  It is true that the learned trial judge had earlier told the jury that, in a case such as this, where the complainant's evidence was the only direct evidence of the offence, one should scrutinize that evidence carefully.  But it was submitted that this had been unrelated to the question of lapse of time[2] and that a warning of the above kind should have been given in that context.  It was also submitted that, in that context, the learned trial judge should have referred to some specific circumstances which were relevant to the assessment of the complainant's evidence;  not just the lengthy delay and the absence of corroboration, to which reference had been made, but the absence of fresh complaint, the vagueness of the complainant's recollection of the circumstances in which the alleged uncharged acts had been committed, her error as to whether the appellant was circumcised and the conflict between her evidence and that of other witnesses as to whether she had left her children alone in the appellant's company.

[23]  Reliance was placed, not only on Longman, but also on Crampton v The Queen,[3] Doggett v The Queen[4] and the decision of this Court in R v C.[5]  The respondent also helpfully referred to two relevant decisions of the New South Wales Court of Criminal Appeal, R v BWT[6] and R v LTP.[7]  These decisions support the appellant's contentions.  A redirection in terms, generally, of that which is now contended for was sought but refused by the learned trial judge.

[24]  In Longman, Brennan, Dawson and Toohey JJ said:

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."[8]

To similar effect is the statement of Gaudron, Gummow and Callinan JJ in Crampton.[9]

[25]  In R v C, Byrne J, with whose reasons the other members of this Court agreed, said:

"[20]Trials of charges of old sexual offences committed against a child are very likely to engage a jury's emotions.  And we are bound to proceed upon the basis that, in the absence of clear, firm warnings by the judge, a jury may well not grasp either the forensic disadvantages typically encountered by an accused in confronting allegations of old, sexual offences against a child or the risk that the recollection of an apparently honest witness who testifies seemingly convincingly to ancient, illicit sexual activity experienced as a child may be unreliable.

[21]Here the complainant testified to events 20 years earlier, the first of which occurred when she was five or six.  Her evidence was uncorroborated.  There was no evidence of fresh complaint.  In these circumstances, the need to avoid a perceptible risk of a miscarriage of justice required, on the authority of the High Court, a judicial warning, and a statement of the reasons for the warning, sufficient to alert the jury to the dangers of wrongful conviction."

In those passages his Honour referred to Longman, Doggett and Crampton.

[26]  In BWT Wood CJ at CL[10] and Sully J[11] pointed to the apparent illogicality of requiring such a direction in all cases of substantial delay in prosecuting whether or not the accused is in fact prejudiced by the delay.  But until that question is revisited by the High Court I think, like their Honours and Byrne J in R v C, that judges are bound to give such a warning in all such cases.

[27]  This being such a case, such a warning was required.  And in my opinion her Honour's failure to administer that warning caused a substantial miscarriage which must be rectified.  I would allow the appeal, set aside the verdict of guilty and order a new trial.

[28]  CHESTERMAN J:  I agree with Davies JA.