SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I agree with the reasons of Philippides J.

[2]  KEANE JA:  I agree with Philippides J.

[3]  PHILIPPIDES J:  On 30 July 2007 the appellant was convicted after a trial by jury of one count of maintaining an unlawful sexual relationship with a child under 16 with a circumstance of aggravation (count 1), six counts of indecent treatment of a child under 12 in care (counts 2, 3, 4, 5, 6 and 8), one count of rape (count 7) and two counts of indecent treatment of a child under 16 in care (counts 9 and 10).  On the charge of maintaining an unlawful relationship which related to the period from 15 June 1997 to 25 March 2005, the appellant was sentenced to six years’ imprisonment.  On the count of rape, he was sentenced to five years’ imprisonment.  On the other counts, sentences of three years’ imprisonment were imposed.  All sentences were concurrent and a parole eligibility date of 30 July 2010 was recommended.

[4] The appellant abandoned his application for leave to appeal against the sentence and also abandoned the original grounds of his appeal against conviction, with leave being sought to amend the notice of appeal by substituting the following ground of appeal for the previous grounds:

“The directions to the jury on the of evidence of uncharged acts were inadequate, and should have included a warning against propensity reasoning.”

[5] The complainant was born on 26 March 1992.  The appellant was a neighbour of the complainant from 1997 until 2006.  According to the complainant’s mother, towards the end of May 2006, the complainant told her mother “I want to know if you can have someone charged with sexual harassment”.  The complainant then told her mother that the appellant had sexually abused her.  The complainant’s mother arranged for the complainant to see a counsellor.

[6] On 1 June 2006 the complainant and her mother met a guidance officer.  The complainant told the guidance officer that she had been sexually abused by a neighbour between the ages of five and 12 years, and provided a handwritten document detailing various allegations against the appellant, which was admitted as a statement of the complainant under s 93A of the Evidence Act 1977 (Qld).  An interview with police given the following day was also admitted under s 93A.  At the time of the police interview the complainant was 14 years old.

[7] The maintaining offence was alleged to have taken place over a period of eight years starting when the complainant was about six years old.  The complainant gave general evidence describing sexual offending on a regular basis by the appellant when she was aged between five and 12 years.   There is no issue that that evidence was able to be regarded as evidence of “uncharged acts”, which the jury were entitled to take into account on the count of maintaining an unlawful sexual relationship with a child.

[8] The complainant gave the following account in her initial interview:

“I was sexually harassed …

… physically …

It started when we moved into our house at the address I just told you …

And I, I started going over there because this little girl over there wanted me to go over there …

And um I used to go over there nearly every day …

Because it was fun …

And I think it started when I was about, I can’t really remember exactly because I was little, it was about five or six.”

[9] When asked about the first incident that she could remember, the complainant replied:

“I can’t really remember, but I can remember roughly what he did over the years …

He used to um use his fingers and put them in me …

And it hurt …

And he used to lick me …

And he tried to cum in my mouth …

And I spat it out …

And he told me that everybody does it …

And he used to teach me things …

And he told if um, well he has a partner he’s with, it’s not his wife or anything …

But he told her about her and she was angry but she said its okay …

And he has three children …

I’m not sure if they’ve seen anything or not …

But he used to do it like a lot …

And the way he talked to me, it’s like he was trying to say that if I told anyone, they wouldn’t believe me or anything …

And every time he did something he used to give me two dollars, not every time but sometimes he did …

But he wouldn’t give it to me in my hand, he’d put it down there …

Yeah, and um, he tried doing things while he was driving …

When his daughter was in the back …

… whenever I was over there, and my sister was, he’d only pay attention to me …

And um, a couple of times I said no to him …

When he tried to do something …

I was like no …

And then he said it doesn’t matter and he just did it anyway and I was scared to do anything in case he would hurt me or something …

That’s about as much as I can remember, it stopped out one or two years ago …

But the whole time I was there, he’d touch me sexually.”

[10]  In addition, the police interviewed the 15 year old boyfriend of the complainant.  He told the police that she had told him that “this guy … had sexually harassed her and had … touched her and fingered her” and had “gotten her to touch his you know his penis … and he had come all over and everything and that he’d licked her and everything like this when she was about a five or six year old…” and that this had happened “basically every day”.  She had told him that the man lived right behind her and was Turkish.  She was very upset and defensive when she spoke about it.  This evidence was admissible as evidence of preliminary complaint, and evidence of the interview was also admitted under s 93A.

[11]  The police interviewed the complainant again on 26 August 2006 because she said that she remembered another incident when she was six years old when the appellant put his fingers in her vagina in his room, and another incident in the bath when she was about eight or nine and had gone to his house to play with his daughter.  Again, evidence of the interview was admitted under s 93A.

[12]  The specific incidents the complainant alleged in the course of the two interviews form the basis of counts 2 to 10.  They comprised the following acts alleged against the appellant; digital penetration, touching the complaint in the vaginal area, exposing himself to the complainant, licking the complainant on her vagina, penetrating the mouth of the complainant, touching the complainant’s breasts and touching the complainant’s bottom.

[13]  The prosecution relied on the specific offences which were counts 2 to 8 as the basis of the count of maintaining.  Counts 9 and 10 were not relied upon in that regard as they were alleged to have occurred after the amendment of the definition of maintaining, which took effect from 1 May 2003, and reduced the requirement that three or more specific sexual offences be proved to one such offence.

[14]  The learned trial judge’s directions to the jury made it clear that the Crown case relied solely on the credibility and reliability of the complainant’s evidence.  Her Honour directed the jury to the effect that they should consider how a reasonable doubt about one count affected the way they assessed the complainant’s other evidence.  Her Honour also gave the jury a Longman[1] direction, in accordance with the Supreme Court and District Court Benchbook, as to the significance of delay in the complainant making a complaint.  In addition, an appropriate direction was also given as to the use of evidence of preliminary complaint.

[15]  Directions were given as to the elements of each of the offences, including the elements of maintaining as they were at the time count 1 was alleged to have been committed (prior to the 1 May 2003 amendment).  Her Honour reminded the jury of the specific basis of counts 2 to 10 according to the evidence of the complainant.

[16]  In relation to the evidence of uncharged acts, her Honour directed the jury in the following terms:

“Now, in this case, as well as the specific counts in the indictment, the prosecution relies on the evidence that I have already talked to you about of other uncharged acts of a sexual nature to establish the accused maintained a sexual relationship with the child.  The child hasn’t been able to be specific about when or under what circumstances those acts occurred.  If you have a doubt about specific offences, then you should only convict the accused on the basis of the evidence of the uncharged acts.  I was saying that the Crown relies on these uncharged acts as proving the maintaining of a sexual relationship but if you have a doubt about the specific offences, particularly if you can’t agree on three of those specific offences, you really can’t convict on the basis of the uncharged acts because it would be impossible for you, given what she said about them, to really agree on three of those acts because they have been fairly broadly put.

However, if you have a reasonable doubt with respect to the complainant’s evidence on any of the specific counts, you should take that into account when you consider the whole of her evidence in relation to the uncharged acts and that will need to be considered by you in your assessment of the complainant’s credibility generally.  Similarly, if you have a reasonable doubt about what she says about the uncharged acts, that is her general evidence about what happened, obviously that needs to be considered by you in your assessment of her credibility generally and whether you can accept what she says about specific accounts, but you can’t use those uncharged acts to convict the accused of the maintaining without being satisfied beyond reasonable doubt of at least three of the specific acts that the Crown has particularised as being the three occasions on which the maintaining occurred.

Nonetheless it remains a matter for you as to what evidence you accept or what evidence you reject.  Those are just factors you need to keep in mind.”

[17]  The appellant made two criticisms in relation to the above direction.  The primary criticism was that, although it was accepted that the directions in relation to uncharged acts were given in relation to the offence of maintaining, it was not specifically made clear to the jury that the evidence of uncharged acts was relevant only to the charge of maintaining and could not be used in relation to the specific counts.  In addition, the trial judge’s direction that “If you have a doubt about specific offences, then you should only convict the accused on the basis of the uncharged acts” was contended to be wrong in law.

[18]  As is apparent from the above quoted extract of the learned trial judge’s directions to the jury, the directions given did not include any warning against propensity reasoning in relation to the evidence of the uncharged acts.  As counsel for the appellant submitted, there was a clear danger, without having the benefit of a propensity warning, particularly because of the prominent evidence of uncharged acts over many years, that the jury might reason that the appellant had a propensity to commit offences of a sexual nature against the complainant and was therefore guilty of the specific offences alleged in counts 2 to 10.

[19]  This Court has recently in R v WO [2006] QCA 21 reaffirmed that in cases such as the present case, directions as to the use of generalised evidence and a propensity warning should ordinarily be given.  Williams JA at [15] – [17] (with whom de Jersey CJ agreed) said of the directions given in that case:

“… The jury was not told that the evidence as to ‘uncharged acts’ was only relevant to the maintaining count, and they were not warned that it would be ‘quite wrong for you to reason because you are satisfied that he did such acts on other occasions, therefore it is likely that he committed a charged offence’.

Once the jury were told that they could ‘convict ... on the basis of any uncharged acts’ it was incumbent on the learned trial judge to direct the jury as to the limits on the use they could make of such ‘uncharged acts’ and as to the wrongfulness of propensity reasoning.

It may well be that, following KRM v R (2001) 206 CLR 221, there is no absolute rule that a judge must always warn the jury against propensity reasoning on a maintaining charge.  But where, as here, other specific counts are before the jury ordinarily such a warning would be called for particularly where the jury were told that they could use evidence as to uncharged acts for a limited purpose in concluding that a verdict of guilty should be returned.”

[20]  Likewise, Keane JA at para [42] – [43] stated:

“It must be reiterated that the propensity warning is necessary to guard against the danger that generalised evidence of misconduct might be used improperly by a jury to reason that because an accused has a propensity to criminal misconduct of the type in question he is, therefore, likely to be guilty of the particular misconduct charged against him: ‘to conclude the particular from the general’. …

In this case, the direction … may well have been taken as an invitation to reason ‘from the general to the particular’:  that because of the appellant’s predilection manifest in the misconduct disclosed by the uncharged acts, he was likely to be guilty of the specific charged acts of indecent treatment and unlawful carnal knowledge.”

[21]  While, as Williams JA stated in WO, the High Court has recognised in KRM v R (2001) 206 CLR 221 that there is no absolute rule that a judge must always give a propensity warning, fairness to an accused will ordinarily require such a warning to be given, particularly where the jury may make use of propensity evidence for limited purposes in a case before them.  In KRM, Kirby J at p 257 [106] stated:

“The specific danger for the fair trial of an accused, presented by the relationship offence, include the additional risk that, without clear directions, the jury may confuse the evidence relevant to any particular charges with that relevant to the relationship offence;  that they may impermissibly use evidence of uncharged acts tendered to support the relationship offence …;  or that they may reason that, because the accused is guilty of one or more of the specified offences, that therefore he or she is guilty of the relationship offence or from such proof might reason that he or she is the kind of person who would conduct the relationship the subject of the offence and therefore did so as charged.”

[22]  Similarly, Hayne J said at p 264 [133] – [134]:

“As McHugh J points out in his reasons, the circumstances in which propensity evidence may be adduced are limited, and the use to which a jury may properly put propensity evidence is also limited.  If evidence is led of misconduct by an accused which does not form the subject of a charge being tried, a warning against the danger of propensity reasoning will ordinarily be required.  By contrast, the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given.  Generally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts.

Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties.  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 … .  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.  I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past.  I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning.”

[23]  As in the case of WO, the failure by the trial judge in the present case to give a propensity warning resulted in the directions that were given being inadequate to ensure that the appellant was protected against impermissible use of the evidence of the uncharged acts.  On the directions that were given, the jury may well have been left with the impression that they could rely on the evidence of uncharged acts to resolve, in favour of the Crown, doubts which the jury may have had in relation to specific charged acts.  Indeed counsel for the respondent rightly conceded that the learned trial judge erred in failing to give appropriate direction as to the use of the evidence of the uncharged acts and that there were no factors to take this case out of the ordinary cases in which a warning against propensity reasoning was required to ensure that the jury made use of the evidence of the uncharged acts in the limited way in which it might lawfully be used.

[24]  The deficiencies in the directions given could have been addressed by adopting the model directions provided in the Queensland Supreme and District Courts Benchbook where the following passages appear:

“In addition to the evidence of the complainant concerning the [number] offences charged on the indictment, you have also heard evidence from her of other alleged incidents in which she says sexual activity involving [or violent acts by] the defendant occurred.  As you have heard, she has not been specific about when that activity occurred or in what circumstances.  Those incidents are not the subject of any charges before you, and you can use the evidence of them for one purpose only:  if you accept the evidence it shows, so the prosecution says, the true nature of the relationship between the defendant and the complainant, thus placing the alleged events the subject of the [number] charges in their proper context.

…

Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose mentioned, and, before you can find the defendant guilty of any charge, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge.”

[25]  As to the further criticism made by the appellant in respect of the trial judge’s direction that if the jury had a doubt about specific offences “then you should only convict the accused on the basis of the uncharged acts”, the direction was clearly wrong in law.  Although the summing up also contained other directions properly instructing the jury (“you can’t use those uncharged acts to convict the accused of the maintaining without being satisfied beyond reasonable doubt of at least three of the specific acts that the Crown has particularised as being the three occasions on which the maintaining occurred”), the contradictory directions were such as to be likely to mislead and confuse the jury and cannot overcome the plainly erroneous direction.

[26]  In the circumstances, as was said by the Court when pronouncing the orders, the appeal against conviction should be allowed, the convictions should be quashed and a new trial should be ordered.