R v HAB[2006] QCA 80

SUPREME COURT OF QUEENSLAND

1. WILLLIAMS JA: At the conclusion of the hearing of oral argument on the appeal the Court made orders quashing the convictions and ordering a re-trial on each count.  It then intimated that full reasons would be given later.

2. I have now had the opportunity of reading the reasons for judgment of McMurdo J and I agree with what he has said therein.

3. In R v DM [2006] QCA 79, I dealt with the obligation on a trial judge of complying with s 21AW of the Evidence Act 1977 (Qld) in circumstances such as existed in this case.  I will not repeat here what I said there, but I would again emphasise the duty on a trial judge of directing in the clear and simple terms of s 21AW.

4. KEANE JA: I have had the advantage of reading the reasons of McMurdo J.  I agree with those reasons as the basis for the orders which were made at the conclusion of the hearing of this appeal on 9 March 2006.

5. McMURDO J:  In September 2005 the appellant was tried upon four counts of indecent treatment of a child, D, and another count of indecent treatment of a different child, J.  Each complainant was under 12 years of age.  The jury could not reach a verdict on the charge concerning J.  The appellant was convicted of each of the counts concerning D.  He was sentenced to concurrent terms of 18 months imprisonment.

6. He appealed against his convictions on the following grounds:

“1.The verdicts were unreasonable.

2. The learned trial judge erred when he failed to direct the jury that the evidence given by one complainant was not admissible in proof of the charge or charges relating to the other complainant.

3. The learned trial judge erred when he failed to warn the jury against the dangers of propensity reasoning.

4. The learned trial judge erred when he failed to direct the jury in terms of Section 21AW of the Evidence Act.

5. The learned trial judge erred when he failed to inform the jury as to the effect of Section 102 of the Evidence Act.”

7. On the hearing of this appeal on 9 March 2006, counsel for the appellant invited the court to first consider grounds 3, 4 and 5, saying that if the Court was persuaded to quash the convictions and order a re-trial on any of those bases, the appellant would not pursue the other grounds. Consistently with his written outline, counsel for the respondent did not resist the arguments that the summing up was defective in the respects the subject of grounds 3 and 4. But he argued that the convictions should stand, for reasons which are discussed below. Importantly, he did not argue that this court could and should be satisfied, upon its own independent assessment of the trial record, of the appellant’s guilt.

8. At the conclusion of the respondent’s oral argument, the Court was of the unanimous opinion that the appeals should be allowed. Orders were then made^[1] quashing the conviction and ordering a re-trial on each count.  These are my reasons for joining in that decision.

9. The five offences were alleged to have been committed on five distinct occasions, the earliest being in 2002 and the latest in 2004. There was no application for a separate trial of the count involving J. Had a separate trial been sought, it would have been necessary for a judge to consider, amongst other things, whether the evidence in relation to one complainant was admissible on the count or counts involving the other complainant. There can be no criticism of the trial judge here for not considering the question of a separate trial. But it was necessary for his Honour to consider that question of admissibility, because the jury needed instruction on whether they could use the evidence of one complainant on a count involving the other, and if so in what way.

10. The second ground of appeal was that the learned trial judge should have directed the jury that the evidence by one complainant was inadmissible in proof of the charge or charges relating to the other complainant. On the respective written arguments, there was a contest on that issue of admissibility. The issue was one of the admissibility of similar fact evidence according to the test in Pfennig v The Queen,^[2] as recently confirmed in Phillips v The Queen.^[3]  But as I have said, the appellant’s counsel began his oral argument by asking this court to first consider whether a re-trial should be ordered on other grounds of appeal.  He submitted that it was unnecessary to consider that question of admissibility.  In turn the respondent’s counsel did not ask this court for a conclusion that the evidence was admissible; he appeared to accept the appellant’s suggestion that if a re-trial was ordered, that trial judge could determine the admissibility question, and if necessary, the question of a separate trial.

11. The first of the grounds which was pursued was that the learned trial judge failed to warn the jury against the dangers of propensity reasoning. The appellant argued that the jury should have been told that they were not to think that because there was evidence from another girl of sexual misconduct towards her, that he was the type of person who would engage in such conduct, and that therefore he had committed an offence involving the other girl.

12. What were the necessary directions depended upon that admissibility question, which this court was not asked to decide. But a decision either way on that question would have required some instruction to the jury on the use which could or could not be made of one complainant’s evidence in the case involving the other complainant. Unfortunately the jury was not given any instruction on the matter. An explanation may be in the exchange between the learned trial judge and counsel for the appellant at trial (who did not appear on the appeal), who seemed to concede the question of admissibility in saying to his Honour that the jury should be told that they could use the evidence in relation to counts 1 and 2 “in support of count 3” and they could use “count 3 in support of counts 1 and 2”. Yet no direction was given in those terms, or otherwise. Nor was any redirection sought. Still the learned trial judge was obliged to give the jury the instructions to which they were entitled, including instructions as to how they were not to reason: RPS v The Queen.^[4]

13. Had the trial judge held the evidence of one complainant to be inadmissible on the count or counts involving the other complainant, a necessary direction would have been that the jury could not use, in any way, the evidence of one complainant to convict the appellant on a count involving the other. And a propensity warning would also be required. The context would have been that instanced by McHugh J in KRM v The Queen^[5] where he said:

“In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment.  If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts.  An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts.  Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice.  But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought.  If that occurs, a propensity warning will almost certainly be required.”

14. Alternatively, if the evidence was admissible as similar fact evidence, as the prosecution would argue and the appellant’s trial counsel seemed to accept, still the jury had to be warned. In particular they had to be told that probability reasoning carried a danger that “(c)ommon assumptions about improbability of sequences are often wrong”.^[6]  With that warning, it may have been unnecessary to give a distinct instruction against propensity reasoning: see for example the respective views of McHugh J^[7] and Hayne J^[8] in KRM.   My own view is that it would be preferable for the jury in that event to receive also a propensity warning but whether it would be necessary is a question which need not be decided now. 

15. So on either view of the admissibility issue, the jury was not instructed as it should have been. In a case of this kind, that involved an irregularity in the conduct of the trial which would warrant the quashing of the convictions, unless the proviso in
    s 668E(1A) of the Criminal Code 1899 (Qld) should be applied.  Before discussing the proviso it is necessary to discuss the fourth ground of appeal.

16. The evidence of each complainant was received pursuant to Part 2, Division 4A of the Evidence Act 1977 (Qld).  Accordingly the trial judge was required by
    s 21AW(2) of that Act to instruct the jury that:

“(a)the [giving of evidence by the children in that way] is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lessor weight because of the measure.”

17. The trial judge did give the jury a direction that no adverse inference was to be drawn but “from the fact that this is the process which applies”. Whilst it is preferable for the direction to be given in the clear terms of the section, it may be accepted that this direction satisfied the requirement of paragraph (a). But otherwise no direction was given which satisfied the requirements of s 21AW(2). So much is conceded now by the respondent. In this respect also, there was a serious irregularity in the conduct of the trial which, subject to the operation of the proviso, would warrant the setting aside of these convictions.

18. Section 21AW(2) is in mandatory terms. In a particular case, where the directions which it requires are not given, an appellate court might be persuaded that there was no substantial miscarriage of justice. But an appellate court cannot gainsay the proposition that juries need the instructions which the statute prescribes.

19. The fifth ground of appeal was that a direction as to the effect of s 102 of the Evidence Act 1977 (Qld) was required as part of a proper response to a certain question asked by the jury, which was whether evidence or statements made by the complainants to police held equal weight with their testimony given under oath.  His Honour directed that the answer was “yes”, that “the modern approach draws no distinction between evidence under oath and evidence unsworn, particularly in relation to youngsters” and that the “worth of the evidence depends upon your assessment of it and that’s really involved in the consideration of whether you’ll act upon it and accept it”.  The appellant’s argument is that his Honour should also have said that the jury (consistently with s 102) had to have regard to “all the circumstances from which an inference could reasonably be drawn as to the accuracy of evidence, including its temporal connection with the facts to which the statement relates”.  In my view, it was unnecessary to decide this point given the irregularities already discussed and the extent to which the prosecution relied, if at all, upon the proviso.

20. In answer to ground 3, the prosecution said only that the risk of impermissible use of the evidence of one complainant, in relation to the other charge or charges had been avoided in this case, which was said to be demonstrated by the jury’s not convicting the appellant on the count involving J. It was only on the basis of that argument that the respondent submitted that there had been no miscarriage of justice as a result of that irregularity. But the jury did not acquit the appellant of the charge involving J. One or more of the jury may have accepted J’s evidence and used it in an impermissible way to convict on the other counts. The failure to reach a verdict on this count does not at all demonstrate that the absence of directions on the use of J’s evidence led to no substantial miscarriage of justice.

21. As to the fourth ground of appeal, the respondent argued simply that the failure to direct the jury in accordance with the terms of s 21AW(2) “could not have adversely affected the appellant’s chances of an acquittal”. That submission was not developed. As I have mentioned, there was no submission to the effect that the purpose of the directions required by the section was served by what the jury were told.

22. The prosecution did not attempt to persuade this Court of the appellant’s guilt. It did not cite Weiss v The Queen^[9] or argue that in this case the Court should be convinced of guilt, beyond reasonable doubt, from its own independent assessment of the admissible evidence.  To have done that, the Court would have been required to determine the similar fact argument, which the respondent was content for the court not to do. 

23. In Weiss it was held that:

“It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.”^[10]

On this appeal the prosecution did not seek to so persuade the appellate court. In the written submissions, we had been referred to the record in relation to the first ground of appeal, which was that the guilty verdicts were not reasonably open.  So to that extent, the Court had submissions as to why the jury could have convicted.  But that is a different question.  In this context, the relevant onus is still upon the prosecution to persuade the appellate court of the appellant’s guilt so as to conclude that there was no substantial miscarriage of justice.  The prosecution need not attempt to rely on the proviso in every case, and there may be many reasons why it appeared not to do so in this case.

24. In Weiss, the High Court held that the appellate court must have regard to the whole of the record, including the jury’s verdict.^[11]  But in this case the verdicts were reached without the assistance of directions as to how each complainant’s evidence was to be assessed and how it could be or could not be used.  The verdicts themselves would not have provided a reliable platform from which to reason that the appellant did commit these offences.

25. The result then was that the proviso did not operate and the absence of directions in the respects which I have discussed led me to join in the orders which were made.