SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Keane JA's reasons for dismissing the appeal.

[2]  KEANE JA:  On 25 November 2005, the appellant was convicted upon the verdict of a jury of four counts of indecent treatment of a girl under the age of 12 years.  The jury were unable to reach a verdict on two counts of rape.  The charges related to a series of offences alleged to have been committed against the appellant's stepdaughter between October 1971 and October 1977.

[3] The appellant seeks to appeal against the convictions on the counts of indecent treatment on the following grounds:

"1.The instructions given to the jury by the learned trial Judge on the topic of violence towards the complainant were inadequate and erroneous.

2.… the learned trial Judge erred in the directions he gave to the jury on the topic of the confession said to have been made by the appellant."

[4] Some brief reference to the evidence given at the trial is necessary to facilitate a discussion of the appellant's challenges to the propriety of the convictions.

The evidence at trial

[5] The complainant was born in October 1966.  The appellant married the complainant's mother in 1970.  Thereafter, the family took up residence in Bouldercombe, south of Rockhampton.

[6] The complainant said that the appellant began to abuse her sexually from when she was five years old.  She said that this occurred more than once a week.  The counts with which the appellant was charged related to six separate incidents.

[7] Count 1 related to an occasion on which the complainant said that the appellant drove her in his car to the Neerkol Orphanage, where he showed her the gates and threatened her that she would be put in there if she was naughty.  She said that, on the way home, he stopped the car at Port Curtis and compelled her to touch his penis and to put his penis in her mouth.  After this incident, he told the complainant not to tell her mother, or the complainant would be put into the orphanage.

[8] Count 2 related to another incident which the complainant said occurred when she was five years of age.  She said that the appellant entered her bedroom and put his hands inside her pyjamas.  She said that he put his finger in her vagina and then licked her vagina.

[9] Counts 3 and 4 related to the charges of rape on which the jury was unable to reach a verdict.  The complainant said that she was "five or six or something" when the appellant took her from her bedroom into his bedroom and had penile intercourse with her.  She was asked:  "Were you saying anything at this time?"  She replied: 

"Tell him to stop and that it hurt and I was crying and half the time I didn’t say anything because I was frightened I was going to be bashed or assaulted or something.  He was always threatening me with violence and he was always very violent."

[10]  Count 5 concerned an incident which occurred when the complainant said that she was about eight years of age.  According to the complainant, she was in the bathroom, and she had removed her clothes.  The appellant came in and took a washer, and began to rub her back and arms.  He then told her to open her legs, and began to wash her vagina.  He then put his fingers inside her vagina.

[11]  Count 6 concerned an incident which occurred when the complainant said that she was about 11 years of age.  The appellant was cooking something on the stove in the kitchen when he told the complainant to come and have a look at it.  When she came and stood at the stove, he placed his hand on her breast and squeezed it.  She told him to stop and not to do it or she would tell her mother.  The appellant pulled away quickly and said:  "Don't tell Mum."

[12]  The complainant said that the appellant, on numerous occasions, gave her "floggings or beltings".  She said that he used "jug cords, leather plaited belts, closed fists, open hands.  There'd be blood welts."  She said that he was "always very violent".

[13]  The complainant's mother gave evidence that the appellant "would hit [the complainant] and things like that" when she "got into trouble with [the appellant]", and that she would sometimes have marks from where he hit her with a belt.

[14]  Both the complainant and her mother gave evidence of a confrontation which occurred after the event which was the subject of count 5, but before the event which was the subject of count 6.  The complainant said that she entered the bedroom where her mother and the appellant were watching television and said:  "He's been dirty with me when you go to work."  The complainant said that at this point her mother started yelling, and the complainant ran from the room.

[15]  The complainant's mother said that the complainant said that "he had been touching her".  When asked what she meant, the complainant said:  "He's been touching me."  It was a "sexual thing".  The complainant's mother said that she then yelled at the appellant, and he said that it was "true".  She told him to leave; and the appellant left home for three days.  He then came back and said to her that "he would never, ever do it again".  In cross-examination, the complainant's mother said that, when the complainant told her what had occurred, she also showed her what the appellant did. 

[16]  The appellant gave evidence.  He denied the complainant's allegations of sexual abuse.

[17]  The appellant acknowledged that there had been a confrontation with the complainant and her mother.  He said that he had acknowledged that he had abused the complainant, but said that this acknowledgment referred to the beltings that he meted out to the complainant.  In his evidence-in-chief, he said that he had not carefully listened to what the complainant had said because he had been watching television, and when his wife screamed at him she asked him if he "abused them", he had replied:  "Of course", taking the question to be a reference to "physical abuse".  It may be observed here that it is hardly surprising that the jury seem to have rejected the appellant's version of this confrontation.  It was highly implausible. 

The appellant's first ground of appeal

[18]  The trial judge directed the jury that the evidence of uncharged sexual acts could only be used, if it was accepted as reliable, to show "the true nature of the relationship between the defendant and the complainant, thus placing the alleged events, the subject of the six charges, in their proper context".  His Honour went on to say:

"What you heard about that relationship relates not only to sexual activity, but also to physical violence in the context of exercising discipline in the family.  You should have regard to evidence of the incidents not the subject of charges only if you find it reliable.  If you accept it, you must not use it to conclude that the defendant is someone who has got a tendency to commit the type of offence with which he is charged.  So it would be quite wrong for you to reason that you are satisfied he did those acts on other occasions, therefore, it's likely that he committed the charged offence or offences that you are looking at at the moment.  Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose mentioned.  It's relationship type evidence."

[19]  The appellant argues that this direction wrongly left it open to the jury to use the evidence of physical abuse to prove that a sexual relationship existed between the appellant and the complainant, that being the only relevant relationship for the purpose of the offences with which the appellant was charged.  The appellant submits that, while this evidence was admissible in the defence case to explain away the appellant's confession, it was, nevertheless, not relevant to the existence of a sexual relationship.  The appellant submits that it was erroneous of the trial judge to leave it open to the jury to reason that the appellant's violence towards the complainant might help them to conclude that a sexual relationship existed.

[20]  This ground of challenge to the verdict must, in my respectful opinion, be rejected.  It is founded upon the assumption that, in human affairs, there is a neat distinction of universal validity between violent relationships and sexual relationships, between sexually abusive relationships and otherwise abusive relationships, or between the sexual aspects of a particular relationship and the non-sexual aspects of that relationship.  There is no authority which supports that assumption as a proposition of law.  Whether or not it is supportable as a proposition of fact is, I think, open to doubt.  But this is not a matter on which the views of judges are of any more value than those of the jury. 

[21]  The evidence of the appellant's uncharged acts of violent and physical discipline was apt to provide an understanding of the relationship between the appellant and the complainant which might explain and render credible complaints which otherwise might have been thought inexplicable and incredible.  The extent of the assistance to be derived from that evidence is a matter for the jury, not for direction by the trial judge. 

[22]  As Hayne J stated in KRM v The Queen:[1]

"Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event (cf O'Leary v The King (1946) 73 CLR 566 at 577, per Dixon J). In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred."

[23]  The discussion in KRM v The Queen concerned evidence of uncharged sexual conduct in the context of a maintaining charge. The basal consideration in the reasoning of Hayne J - and that of Dixon J in O'Leary v The King - is nonetheless relevant to this case. The evidence that the relationship between the appellant and the complainant was a physically abusive relationship was apt to provide an explanation for conduct which might otherwise seem to be inexplicable and unbelievable as between step-parent and child.  This evidence tends to show that there was, in the relationship between the appellant and the claimant, a distinct absence of the care and regard which would ordinarily be expected to attend that relationship.

[24]  The appellant referred to passages in the reasons of McHugh and Hayne JJ in KRM v The Queen, which expressly authorise the admission of evidence of sexual offences to establish the nature of the relationship between the accused and the complainant,[2] and argued that these passages should be understood as if they impliedly excluded evidence of other forms of misconduct by the accused towards the complainant.  In my respectful opinion, these passages cannot be read in this restrictive way.  The basis for the admission and legitimate use by the jury of such evidence is that evidence of non-sexual misconduct may facilitate an understanding of the relationship between the accused and the complainant.  That this is so can be seen from the following passage in the joint judgment of McHugh and Hayne JJ in Gipp v The Queen where their Honours said:[3]

"No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years (See, eg, Pfennig v The Queen (1995) 182 CLR 461). Moreover, as BRS v The Queen ((1997) 191 CLR 275) shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence (BRS (1997) 191 CLR 275 at 305 - 306). In BRS ((1997) 191 CLR 275 at 305), McHugh J pointed out:

'If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.'

     In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges."

[25]  In this case, the evidence of the violence which infected the relationship between the appellant and the complainant might legitimately be used to enable the jury to "understand the context of the incidents that were the subject of the charges".

[26]  It may also be said here that the inclination to reason to a conclusion of guilt by reference to propensity is likely to be less strong where the offences charged are sexual offences and the uncharged acts are not sexual offences than where both the charged and uncharged acts are sexual offences.

[27]  For these reasons, I reject the appellant's first ground of appeal.

[28]  For the sake of completeness, I note that s 132B of the Evidence Act 1977 (Qld) provides that, in a criminal proceeding against a person for an offence defined in Ch 28 to Ch 30 of the Criminal Code, "[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding".  The offence of indecent treatment of a child is defined in Ch 22 of the Criminal Code.  Accordingly, s 132B of the Evidence Act does not render the evidence admissible.  It cannot be suggested, however, that s 132B impliedly excludes the admissibility of evidence of the history of the relationship in proceedings for offences defined under chapters of the Criminal Code other than Ch 28 to Ch 30.  That is because s 132B of the Evidence Act does not add "anything to the common law, which recognises that evidence of a relevant and specific 'relationship' between an alleged offender and a complainant is not caught by the rule against 'character' or propensity evidence".[4]

The appellant's second ground of appeal

[29]  The appellant contends that the trial judge directed the jury in relation to the appellant's admission of abuse in such a way as to prevent them from properly considering whether the "abuse" which was admitted was physical abuse separate and distinct from sexual abuse.

[30]  In this regard, the focus of the appellant's submission is upon the following passage from the trial judge's charge to the jury:

"You've heard his explanation that what he was conceding related only to perhaps excessive physical violence perpetrated by him in the course of exercising discipline on the child.  Well, you may accept that.  If you do, then obviously he is not confessing to anything that has any bearing in relation to charges of a sexual nature.  On the other hand, you may take the view of it that [the complainant's mother] and the complainant both advance, that in the circumstances it clearly related to complaints of sexual activity.  It's open to you to regard what the defendant did, and I suppose confirmed by his removing himself from the house and coming back and saying there would be no repetition, as a confessional statement."

[31]  The appellant submits that the jury should have been, but erroneously were not, directed to consider the possibility that neither view of the confrontation should be accepted.  The appellant relies, in support of this submission, on Murray v The Queen,[5] and R v Young.[6]On that basis, so it is said, the appellant was denied the benefit of any doubt which might have attended the jury's view whether the appellant had admitted sexually abusing the complainant.

[32]  The learned trial judge took some pains to ensure that the jury understood that they should not act on the confessional statement unless they were satisfied that it was "truthful and accurate".  After the passage from his Honour's charge to the jury set out above, his Honour went on to say:

"Before you can act on that you must be satisfied firstly that the alleged admissions by the defendant were actually made; and secondly, you must be satisfied that they were truthful and accurate.  People sometimes for all sorts of reasons may make admissions that aren’t true."

[33]  The trial judge's charge to the jury concluded with the reminder:

"Of course, whatever you make of [the accused's] evidence, it remains the case that it is for the prosecution by [the complainant's] evidence to prove each charge to you beyond reasonable doubt."

[34]  The trial judge's directions made it clear to the jury that, before they could act on the confession of abuse on which the Crown relied, they had to be satisfied that the confession was "truthful and accurate".  The jury could be trusted to understand that they could not be so satisfied if they considered that the appellant's statement admitting his "abuse" of the complainant might have been at cross-purposes with the complainant's mother's question.

[35]  The trial judge's directions were, in my respectful opinion, accurate and sufficient.  It is to be emphasised that, in this case, the contest was relevantly between the appellant's version and the version of the complainant and her mother as to the appellant's response to an accusation of sexual abuse.  There was no doubt that a conversation had occurred in which the appellant admitted to abuse in some form.  There was no possibility that the jury could rationally conclude that there had been no conversation in which an admission of abuse of some kind had been made.  Such a conclusion would have been entirely perverse, given that it was common ground that a conversation occurred in the course of which the appellant admitted abusing the complainant.  The jury would have understood from the trial judge's direction that they could act on the admission of abuse only if they accepted that that admission related to sexual abuse.

[36]  The authorities which the appellant invokes to support his submission are concerned with a different point, namely that where the evidence given in the prosecution case inculpates the accused and the evidence adduced by the accused exculpates him, the jury should be alerted to the possibility that they may not be disposed to accept either version, in which event the prosecution will have failed to discharge the onus of proof which it bears.  Such a direction was not required in relation to the appellant's contested admission of abuse.  Indeed, it would have been nothing short of mischievous, if given in this case, having regard to the matters of fact which both the prosecution and the accused were agreed had occurred.  A fair trial cannot involve a solemn direction by the judge to the jury that they are entitled to act contrary to the facts which are common ground between the parties.

[37]  In this case, the issue for the jury was whether they could be satisfied that the appellant understood that he was admitting to sexual abuse of the complainant.  The judge had directed them that, if they were not satisfied that his admission was "truthful and accurate" as such, they should not act upon the evidence of the admission given by the complainant and her mother.

[38]  Accordingly, in my respectful opinion, the appellant's second ground of appeal should be rejected.

Conclusion and order

[39]  Neither of the appellant's grounds of appeal has been made out.

[40]  The appeal should be dismissed.

[41]  MUIR J:  I agree with the reasons of Keane JA and with the order he proposes.