SUPREME COURT OF QUEENSLAND

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

[2] I wish only to add some further brief comments as to the miscarriage of the judicial discretion under s 15(3) Evidence Act 1977 (Qld) ("the Act") to allow cross‑examination of the appellant about his prior convictions under the exception provided for in s 15(2)(c) of the Act.  Particular care was needed in this case in exercising that discretion.  As Gibbs CJ observed in De Jesus v R[1] "Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard."  That is especially so where, as here, the complainant was an eight year old girl and the accused person was an elderly man.  The prosecution case turned on the complainant child's otherwise unsupported evidence that the appellant committed the offences.  The defence case turned on the appellant's otherwise unsupported evidence that he did not commit the offences.  In such circumstances judges must take particular care to do everything possible to ensure a fair trial.  Those factors combined with the matters referred to by Holmes JA meant that fairness required the refusal of the prosecution application under s 15(3) to cross‑examine the appellant about prior convictions which were at least 18 years old.

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

[4]  HOLMES JA: The appellant was tried on an indictment containing the following counts: count 1, rape on 25 August 2004; count 2, rape, and count 3, wilfully and unlawfully exposing a child to an indecent act with a circumstance of aggravation (that the child was under 12 years), both on 27 August 2004; and count 4, indecent dealing, again with the circumstance of aggravation that the child was under 12 years, on 29 August 2004. In the course of the trial, each of the counts was amended to allege that the events occurred “on or about” the given date. The appellant was acquitted on counts 1 and 4 and convicted on counts 2 and 3. He was sentenced to 3 years imprisonment.

Grounds of appeal

[5] The appellant raised three grounds of appeal: that the learned trial judge’s exercise of his discretion to permit cross-examination of the appellant on his criminal history caused a miscarriage of justice; that the Crown prosecutor’s cross-examination of the appellant as to whether he could offer any explanation for the complainant or her mother to make false allegations against him occasioned or contributed to a miscarriage of justice; and that the convictions on counts 2 and 3, being inconsistent with the verdicts of not guilty on counts 1 and 4, were unreasonable.  There was also an application for leave to appeal against sentence. For reasons which will appear, it is unnecessary to deal with that application.

The Crown case

[6] In August 2004, the complainant was eight years old.  She and her family, consisting of her mother, M, her mother’s de facto husband and her baby brother, had recently moved to Bowen, where the appellant lived.  On Wednesday 25 August 2004, after an argument with the relative with whom they had been staying, the four found themselves homeless. M knew the appellant through a family connection, so they went to his plant nursery to ask for financial help. Instead, he allowed them to move in with him, which they did straight away. The appellant made no charge for the accommodation, but there was a loose arrangement that the adults would help around the nursery, in particular assisting him with getting his produce to local markets to be held on Saturday 28 August and Sunday 29 August. 

[7] The appellant’s living arrangements were relatively rudimentary. He did his cooking in the “front shed”, which held a refrigerator, a stove and a table and chairs. He and his workman, generally known as “Sticks”, slept in a second shed, the “living shed”, occupying, respectively, the lower and upper bunks of a two-bunk set-up. The complainant and her family stayed with the appellant in the living shed for six nights. The appellant slept, as he usually did, on the lower bunk, while M and her de facto husband slept in a double bed and the baby in a cot. For one or more of those nights (how many was the subject of dispute) Sticks slept in the upper bunk. The complainant seems to have moved into that bunk on Sticks’ departure.

[8] On M’s account, in the afternoon of Monday 30 August, the complainant revealed that the appellant had been “doing rude things to [her]”. On M’s further inquiry, she said that the appellant had been putting his hands down her pants; that had happened three times, once in the living shed and twice in the nursery. M confronted the appellant with the child, who repeated the accusation to him.  He denied it, and said he would ring the police. (He did, in fact, telephone the local police but they did not attend.)  The family remained at the nursery that night.  On the following day they attended the local police station and on 1 September a police officer undertook a recorded interview with the complainant.

[9] In that interview, the child said that the first instance of indecent dealing took place on Wednesday 25 August, the second on Friday 27th, and the third on Sunday 29th, after the family had been at the markets.  She went on to detail what happened on each occasion. She said that she went to school on the Wednesday. After she had come home in the afternoon and was watching television, the appellant put his hand down her pants and said “I want to feel your pussy”; although she later varied that statement to “I want to suck your pussy”.  In response to a rather leading question as to whether the appellant had touched her, the complainant said that he had pushed one finger “inside of [her] private”.  Again in response to suggestive questioning, she said that the appellant was lying on top of her, wearing a shirt and underpants. He got up and looked out of the window; seeing that M and her de facto husband, who had been away buying food, were returning, he told the complainant not to tell them what had happened.

[10] On Friday 27th, the complainant said, while M and her partner were elsewhere on the property, she was helping the appellant prepare for market day.  She was putting some plants in his car, when he got her into a position against the vehicle from which she could not retreat. Again he put his hand down her pants, putting his finger in the “little hole below the wee”. Then he stuck what she called his “doodle” into her tracksuit pants; he had his hand on it, she said, and was “swooshing it around”.  She pushed him, got his hand out and ran away.  But she returned to packing and he once more made her “touch his doodle”. (This allegation was not the subject of any count; the trial judge directed on it, in a rather vague way, as an uncharged act.)  The appellant let her go, but she saw him squeezing his penis. In response to a direct question as to whether anything came out of it, she said that something “yucky” had come out.

[11] On Sunday 29th the family went to the markets.  The complainant said that on their return, about the middle of the day, she had her bath and was in her nightie. She was in the front shed; the other members of her family were in the living shed.  The appellant put his hand “through the back of [her] pants into [her] private” and touched “where you wee out of”. He stopped when he heard her mother approaching. She told the police officer that it was later that day she had told her mother what was happening and had confronted the appellant.

[12] The complainant’s evidence was taken by way of a pre-recording in May 2005. In examination in chief she gave a little more detail of what was entailed in the digital touching in the three incidents, and also described how on the Friday she had seen the appellant squeeze his penis to get the “green yucky stuff out”. In cross-examination she was questioned about the Wednesday, when the first indecent dealing was alleged. She said it was just getting dark when they arrived at the nursery.  Sticks was there; he stayed on the premises until Saturday.  She rejected a suggestion that M and her partner had not left the premises that night. As to the Friday event, she said that she had been in the shed where the appellant kept his tools when he came along and started squeezing his penis. 

[13] When asked what had happened on the Sunday, the complainant said that she had gone into the shed, wearing her tracksuit pants, and was near the car when the appellant put his hand down her pants and put his “doodle” into her pants.  (It seems probable that this was a conflation of the Friday events with the Sunday events.) After that, she said, she got into her nightie and the appellant put his hands into her pants.  In this questioning, she initially denied saying that he had put his hand down the back of her pants, maintaining that it was in the front. But when she was asked about telling the police that he had put his hand through the back of her pants, she said that he had done that, and then taken it out, and then put it in the front.

[14] There was a good deal of questioning about which was the day when the complainant had told her mother what was happening, because she had asserted it was the Sunday, while M said it was the Monday; eventually it emerged that she did not really remember. She was asked if her mother had had an argument with the appellant about growing some plants; she said that the appellant had wanted her mother to grow plants, but she did not seem to know of any argument.  She was also asked whether her mother had talked to her about getting any money from the appellant and denied any such discussion.

[15] At trial, M gave evidence of how the family came to be at the property, the living arrangements there, and the complainant’s statements to her. She confirmed they were limited to allegations that the appellant had stuck his hand down the child’s pants.  M maintained that the family had arrived after lunch on Wednesday 25th, not at night time. She denied asking the appellant to allow her to grow some cannabis on the property; rather, she said, he had asked her to assist with marijuana plants.  She was asked about her own cannabis use and admitted to a conviction of possessing a pipe used in connection with smoking cannabis in 1997. She also volunteered that she had continued to smoke cannabis while in Bowen. The police, acting on what the appellant had told them, searched the premises the family had moved to after their departure from the nursery and found a bong, which resulted in another charge.  M denied that she had instigated her daughter’s complaint because she was angry with the appellant after his refusal to permit the growing of cannabis.

[16] M’s de facto husband gave evidence that they had arrived at the nursery after dark on Wednesday 25th.  The workman, Sticks, had stayed in the living shed that night with them.  In response to questioning by the trial judge, he said that he was not aware of M asking the appellant to allow her to grow cannabis; he maintained instead that the appellant had asked him to grow cannabis.

[17] A medical practitioner gave evidence that he had examined the child on 1 September 2004. He had taken a history consistent with what she had said in the police interview earlier that day, and had found some slight stretching of the hymen which was consistent with digital penetration, among other possibilities.

The defence case

[18] The appellant gave evidence in his own defence.  On Wednesday 25 August, M and her family had arrived at his property at around 7 o’clock at night.  He was already in bed, in the lower bunk, asleep. They woke him and he spoke to them for a while but he did not get up.  The following morning he saw that Sticks had slept in the upper bunk. M and her family were about.  The complainant did not go to school on that day, but when he saw her throughout the day she was with her mother.  On Friday he started to prepare his produce for the markets. He worked all day and went to bed early.  On Saturday and Sunday he went to different markets to sell his goods.  After his return on Sunday afternoon, while unloading, he had a sudden urge to urinate.  He was doing so at the side of the nursery when he realised that the complainant was watching him. Over the weekend, M had been raising with him the possibility of planting marijuana plants.  On the Monday afternoon she told him she had already planted some seeds. That led to a heated exchange. About half an hour later, M accused him of touching her daughter. 

The “inconsistent verdicts” ground

[19] Since success on the “inconsistent verdicts” ground could result in an acquittal on all counts rather than a retrial, it is as well to deal with it first. No Markuleski[2] direction was given in this case, although it might well have been; but that was not a point of appeal. The appellant confined his argument to the proposition that there was no rational basis for distinguishing between the verdicts on counts 1 and 4, which resulted in acquittal, as opposed to counts 2 and 3, on which the appellant was convicted.  Counsel argued that the evidence of the complainant in the police interview and the pre-recorded trial evidence was as clear in respect of counts 1 and 4 as it was in respect of counts 2 and 3. 

[20] The task for this Court is to determine whether there is any logical and reasonable basis for sustaining the jury’s differentiation between the verdicts.[3] That exercise must be carried out with proper respect for the jury’s function and a consequent hesitation in accepting the submission of inconsistency:

“[t]hus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”.[4]

[21] In respect of the first count, the evidence of M’s de facto husband supported the appellant’s evidence to the effect that the family had not arrived at his premises until evening.  That threw considerable doubt on the complainant’s recollection in the interview that she had been to school that day and had been indecently dealt with by the appellant when she returned home. Her own later account, in her pre‑recorded evidence, was that the family arrived at the property as it was getting dark. And on any view of the evidence it was improbable, given the family’s movements that day, that the child had attended school at all.  In addition, there was evidence that another adult, Sticks, was about the shed that night. It is not surprising that the jury had a doubt about the child’s evidence that she was indecently touched on the Wednesday. On the other hand, it was conceivable that the events happened as she described, but not at the time she recalled; so it was possible to regard her as credible, but not accurate.  In the circumstances, the jury’s acquittal on count 1 was explicable, but it does not follow that it must have found her untruthful.

[22] Counts 2 and 3 turned around events on the Friday. In respect of count 3, there was common ground to this extent: the appellant himself said that the complainant had seen him with his penis exposed.  What differed were their respective accounts of the circumstances; but the jury may well have gained some confidence in the child’s account from the appellant’s acknowledgement that she had seen his penis. 

[23] The complainant’s evidence of what had happened on the Sunday varied as between the record of interview and the pre-recording of her evidence: in the latter she spoke of wearing track pants and the appellant putting his “doodle” in her pants in a way strongly suggestive of confusion with the Friday events.  That confusion would be explicable, as the child’s blurring of separate events over the eight or nine months since they occurred; but it might well make a jury reluctant to convict. Any such reluctance might well have been compounded by the variations in the child’s later account of whether the appellant had, on the Sunday, put his hand down the back or front of her pants; although again those variations could rationally be attributed to diminishing recollection rather than untruthfulness.

[24] I do not think, in short, that there is any difficulty in understanding the jury’s preparedness to convict on counts 2 and 3 while acquitting on counts 1 and 4.  It did not follow, from a hesitation in accepting the complainant’s evidence as to counts 1 and 4, that there was an adverse view taken of her credibility. This ground of appeal is not made out.

The cross-examination on previous convictions and the motive to lie

[25] Section 15(3) of the Evidence Act allows a prosecutor to seek permission to ask questions as to previous convictions in circumstances identified in s 15(2). Shortly after starting cross-examination of the appellant, the Crown prosecutor made such an application, the relevant circumstance being, presumably, that in s 15(2)(c): that

“the nature or conduct of the defence is such as to involve imputations on the character of … any witness for the prosecution …”.

[26] The application did not take long:

“MR RICHARDS:  Your Honour, I have an application to make pursuant to section 15 (2) (c) of the Evidence Act.  It’s in relation to putting the accused’s criminal history to him, or at least elements of it.

HIS HONOUR:  Yes.  The credit of the witness has clearly been put in issue.

MR RICHARDS:  Yes, your Honour.

MR DOWLING:  Quite so, your Honour.  I don’t have any particular-----

HIS HONOUR:  You don’t feel you can oppose the application.

MR DOWLING: I don’t feel I can, yes, your Honour.

HIS HONOUR: I will grant the application…”

There is nothing in the transcript to show that the learned trial judge had seen the appellant’s criminal history at the time he granted the application.

[27] The cross-examination of the appellant then proceeded.  It was put to him that the arrangement by which the family lived with him was beneficial to them, but had come to an end because of the complainant’s allegations:

“And is it your case that the family lost all this by making a false allegation against you? -- Yes.

And you would agree with me, then, that there was nothing whatsoever in it for [M] or [B] in making this allegation. There was nothing in it for them? -- I don’t know.  I just can’t work did (sic) out why.

So far as you are concerned, they had nothing to gain by making the allegation? -- I don’t know.

So far as you are concerned, they had nothing to gain? -- Well, how can I put it to you?  Yes, they had nothing to gain.  I was flabbergasted. Why did they do it?”

[28] The prosecutor next moved to the specific allegations that the complainant had made, each of which the appellant denied.  He concluded his cross-examination at that point with this question:

“You can offer – can I put it this way: you can simply offer no rational explanation for why they would make these false allegations against you? -- Yes, I don’t know.  I’m flabbergasted why.”

[29] Although the prosecutor had, as he said, completed his cross-examination, after some discussion about another issue, the learned trial judge reminded him that he had not questioned the appellant about his criminal history. He proceeded to do so, putting the appellant’s New South Wales criminal history to him: in 1981 he had been placed on a good behaviour bond for passing a valueless cheque; on two occasions in 1982 and 1983 he had been fined for false pretences; in 1985 he had been fined and placed on probation on four counts of false pretences; twice in 1986 he had been fined for stealing; in May 1987 and again in June 1987 he was fined for stealing; and in May 1988 he had been charged and appeared in court in relation to two counts of stealing.  As to the last, the history, as the prosecutor seems to have acknowledged, did not show any conviction. It is difficult to see how that entry could have affected the appellant’s credibility.

The trial judge’s directions

[30] The learned trial judge directed the jury generally that there was no onus on the accused to establish anything.  On the other hand, he said this about the conflict in evidence:

“In this particular case the situation is that there is such a conflict, you may think, between what the complainant says and the accused said, that one of the accounts is not true.  There are no shades of grey here. Someone is not telling the truth.  Now, that does not assist the Crown or the defence very greatly, except that it seems clear on the conflict here that it is to such an extent that one of the accounts is not correct.

Acceptance of the Crown case to the extent of the finding of guilty implicitly therefore, in this case, would involve a rejection of the accused’s evidence again to the standard of proof that I have mentioned.”

Later in the summing up, he reiterated: “Either one account is correct or one is not”.

[31] The trial judge’s only reference to the lack of explanation for false allegations was in the course of outlining counsel’s submissions. In reminding the jury of defence counsel’s address, he said:

“He invited you to look at the fine detail, apply your commonsense and experience, consider the whole of the evidence, including the accused’s evidence, saying correctly that the accused had no responsibility to establish his innocence.  He said he could not explain perhaps why these allegations had been made, but it was not to the point.  It was not for the accused to provide an explanation as to why the allegations were made, rather it was for the Crown to establish that the allegations they make were correct.”

Shortly after, outlining the Crown case, he repeated the prosecutor’s submission: that there was no rational explanation for M to throw away the advantages of the appellant's hospitality by a false allegation; so that the complainant child’s account ought to be accepted as truthful.

[32] The trial judge cautioned the jury about the use to be made of the previous convictions in the following terms:

“The fact that the accused has – this may be self-evident – some previous convictions is something that you have been addressed on by both counsel, but you do not proceed on the basis that because the accused in successive years, every year for I think it is seven in a row, had convictions for dishonesty quite some years ago that that means that he must be lying on this occasion.”

The exercise of the discretion to allow cross-examination on previous convictions

[33] It is difficult to see how the learned trial judge could, without viewing the criminal history, undertake

“the weighing of the prejudicial effect on the defence of the admission of the evidence of prior convictions against the potential damage to the prosecution case of the imputations”

described as a “critical consideration” in Phillips v The Queen[5].  Indeed, counsel for the respondent Crown, Mr Campbell, did not contend very vigorously that the discretion was properly exercised.  Instead he invited this Court to consider the material before the trial judge to arrive at its own conclusion as to whether there was any unfairness in allowing the cross-examination.

[34] The suggestion that M, angered by the appellant’s refusal to permit the growing of marijuana plants, had procured a false complaint from her child clearly brought the statutory exception into play: the conduct of the defence was such as to involve imputations on at least her character. Counsel for the appellant accepted as much. But counsel for the Crown suggested there was an additional imputation to be found in references to M asking the appellant for money and the couple of questions put to the child about whether she had heard any discussion of obtaining any money from the appellant. He characterised that imputation thus: M was trying to create a situation in which she could obtain money from the appellant. 

[35] I do not think that there was in reality any such imputation entailed in the defence case. The questions put to the child were not much more than a mild inquiry to see if the question of compensation, almost certainly statutory criminal compensation, had been raised; no actual suggestion was made that it had been, or that that was a motivation.  The questions asked of M about obtaining money from the appellant did nothing more than expand on her own evidence that she had gone to the nursery with the intention of borrowing from him.

[36] The fundamental criterion for the exercise of the discretion to permit cross-examination on previous convictions is, as Mr Campbell pointed out, what fairness requires.[6]  In R v Brown[7], Smith J identified some relevant considerations which subsequently met with the High Court’s approval:[8]

“(a)That the legislation is not intended to make the introduction of a prisoner’s previous convictions other than exceptional.

(b)That the prejudicial effect on the defence of questions relating to the accused’s long criminal record needed to be weighed against such damage as his Honour might think had been done to the Crown case by the imputations.

(c)That, on the issue of credibility, it might be unfair to the Crown to leave the Crown witnesses under an imputation while preventing the Crown from bringing out the accused’s record.

(d)That the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit.”

[37] Smith J also raised a fifth consideration, of less general application,

“[t]hat great efforts had been made by the defence to make it clear that memory only and not honesty was the subject of attack”.

In R v Symonds[9], Thomas JA distilled from that consideration the proposition that the fact that an accused was simply presenting his defence, as opposed to making gratuitous imputations, should incline the Court against allowing cross-examination as to previous convictions.

[38] The questioning of M, as to whether she was moved by anger at not being permitted to grow marijuana plants, was confined to what was necessary to the defence case.  It was essential that the allegation be put if the appellant were to give evidence to the context in which (on his version) the allegations against him were made.  In no sense was it gratuitous. Its effect on the Crown case was likely to have been minimal.  The defence had foreshadowed at the start of the trial what was to be put to M; the prosecutor had an opportunity of taking instructions from her, which were conveyed to the court in advance of her giving evidence; and, as anticipated, she turned the allegation back against the appellant, asserting that it was he who wished her to grow the plants.  Her de facto husband gave similar responses. The real significance for the appellant’s credit of convictions dating back some 20 years was dubious. On the other hand, the prejudice created by what must have seemed to the jury a litany of dishonesty, an impression not necessarily dispelled by the trial judge’s direction, was likely to have been considerable.  Weighing those factors, the discretion should have been exercised against permitting cross-examination of the appellant.

The effect of the cross-examination as to motive to lie

[39] In Palmer v The Queen[10] the objections to permitting cross-examination of an accused as to any motive for the complainant to lie were identified. The primary reason for not permitting such cross-examination was that the accused’s lack of knowledge of facts from which a motive might be imputed was generally irrelevant.[11]  A second reason was that the standard of proof would be diminished if the complainant’s credibility were to be enhanced by the accused’s inability to identify a motive[12].  And a third objection, in the particular circumstances of Palmer, was that such questions were likely to have a prejudicial effect not readily cured by direction.[13]

[40] Counsel for the Crown here argued that the cross-examination in this case was legitimate, because the appellant had suggested a motive to lie. That is correct, to a point: it was relevant to quiz the appellant about the alleged proposal to grow cannabis and its rejection, since that was suggested as M’s motivation to encourage a false complaint. But that did not confer legitimacy on the remaining general questions about motive.  The prejudice they, and the responses to them, were apt to create was compounded by the fact that the trial judge gave no relevant direction. Counsel for the Crown submitted that the judge had, in the passage cited above[14], told the jury that it was not for the accused to provide an explanation for the allegations; but it is clear that his Honour did no more than remind the jury of defence counsel’s submission. He did not give it the weight of his own authority.  He did not tell the jury that a rejection of the suggested motive concerning M and the marijuana plants would not add any credibility to M’s or the complainant’s evidence; nor did he tell them directly that the failure to identify any other motive could not in any way assist the prosecution case.

Conclusion

[41] The combined effect of permitting cross-examination as to the appellant’s previous convictions and the cross-examination as to the complainant’s motives, unabated in the latter case by appropriate direction, has, in my view, produced a miscarriage of justice.  I would allow the appeal and order a retrial on counts 2 and 3.

[42] DUTNEY J: Having read the reasons for judgment of Holmes JA, I agree with the orders she proposes and with her reasons for doing so.