R v McBride[2008] QCA 412

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Holmes JA.

[2] The result in this case emphasizes yet again the desirability of judges using the “Benchbook” directions.  Disregard of or departure from those directions raises real risk to any subsequent conviction, with drastic consequence for complainant, accused and the public.

[3] I agree with the proposed orders, and the reasons expressed by Holmes JA.

[4]  HOLMES JA: The appellant was convicted after a trial of one count of assault occasioning bodily harm, one count of indecent assault and two counts of rape, all said to have been committed against his former de facto wife.  He was sentenced to six and a half years imprisonment on the rape counts and lesser sentences on the assault counts.  He appeals against the convictions and seeks an extension of time for an application for leave to appeal against the sentences on the rape counts.

[5] The grounds of appeal were many and diffuse, but essentially they amounted to these six: that tape recordings said to amount to “relationship evidence” were wrongly admitted; that the verdict of guilty on the assault occasioning bodily harm count was unreasonable; that the trial judge did not fairly sum up the evidence in respect of the assault occasioning bodily harm count; that his Honour erred in directing as to the meaning of “indecent” in respect of the indecent assault count; that written instructions he provided to the jury were unfair; and that he had wrongly invited the jury to compare the evidence of the complainant with that of the appellant without instructing them that they might be left in a situation of doubt as to the truth of either, and, if so, they should acquit.

[6] In the result, I have concluded that only the last ground (although not quite as framed) should be upheld, but I will give my reasons for rejecting the remaining arguments.  In respect of the assault occasioning bodily harm count it is necessary to do so because it was contended the verdict was unreasonable, raising the question of whether a verdict of acquittal should be entered on that count.  Other arguments concerned the admission of evidence and the directions given.  These reasons may assist in the conduct of the re-trial I have concluded is necessary.

The evidence

[7] The offences were said to have been committed against the appellant’s former de facto partner, P.  She gave evidence that on 22 March 2005 the appellant had pushed her over a lounge and kicked and stamped on her lower back (the assault occasioning bodily harm count).  On 28 March 2005 when she came home in the early hours of the morning he got into bed with her and tried to touch her nipple and breast (the indecent assault count).  Later that morning he pushed her into the bedroom and onto the bed and penetrated her first vaginally and then anally (the two counts of rape).

[8] The appellant and P had lived together for about eight years until the relationship broke down in 2004.  From September 2004 until March 2005, when the offences were said to have been committed, they remained in the same house, although no longer living as de facto spouses.  P gave evidence that during that period, the appellant had, on a number of occasions, committed minor assaults on her: stamping on her foot, kicking her in the shins, and sexual assaults such as grabbing her groin or breasts.  From mid-December 2004, she took to covertly recording their conversations using a digital recorder.  Seven tapes of those recordings were put into evidence.  The first six were apparently intended to provide evidence of the nature of the relationship between the two and related to conversations on unidentified occasions between December and March 2005.  The seventh tape recorded the occasion of the indecent assault.

[9] The appellant gave evidence that on the occasion of the altercation on 22 March 2005, P was assaulting him.  He held her arms and tried to push her away and she overbalanced over the arm of the lounge.  He took the opportunity to make his escape and left the house.  On 28 March 2005, P got into the double bed in which he was sleeping.  He had not deliberately touched her; any physical contact was simply the product of their proximity while sleeping together.  Later that day they had consensual vaginal and anal sex.

[10]  Only P and the appellant gave evidence of the events the subject of the charges, but a number of other witnesses was called.  P’s former de facto partner gave evidence of P’s complaint of rape, as did a forensic medical officer who also described her examination of P after she made the complaint; her findings were consistent with non-consensual intercourse but equally consistent with consensual intercourse.  Two other doctors gave details of bruising and abrasions they found on P and the appellant respectively.  A forensic scientist gave what seems to have been entirely pointless evidence about inconclusive DNA samples from P’s underwear.  A succession of police officers gave what was said to be relationship evidence, of various occasions on which they attended the premises occupied by P and the appellant in relation to domestic altercations.  The appellant’s sister-in-law, brother-in-law and son gave evidence of assaults they had witnessed by P on the appellant.

Admission of the recordings

[11]  Of the first six recordings, it can be said at once that their relevance was very doubtful indeed.  They consisted largely of fairly obvious attempts by P to obtain an admission from the appellant that he had touched her or was touching her in some way that she objected to.  He does not seem to have made any such concession, but instead made a number of accusations of his own, of assaults by her.  It is hard to see how anything in those recordings could seriously have been regarded as probative, although there was no very substantial prejudice to the appellant in them.  The seventh tape at least covered the time at which the indecent assault was alleged to have occurred.  However, it consisted mostly of protestations by P, the answers to which could either not be heard or were not responsive, so its probative value was also dubious.

[12]  The Crown put into evidence on this appeal an affidavit from defence counsel (who did not appear on the appeal) in which he said that he had considered the content of the recordings, discussed them with his client, and made the decision that they should be permitted to go into evidence.  He did not explain his reasons, but one can see that he might well have been quite content to have them admitted because they cast P in an unattractive light, persisting in a protracted attempt to draw the appellant into some incriminating statement.

[13]  Counsel for the appellant contended that, notwithstanding the failure of experienced defence counsel to take any objection to the evidence, the trial judge should have investigated the tapes for himself and ruled them inadmissible.  In the circumstances of this case, that suggestion seems to me to envisage a remarkable level of intervention by the presiding judge into the responsibilities and the decision-making of defence counsel.  Counsel made a valiant attempt to justify his submission by reference to the dissenting judgment of Kirby and Callinan JJ in Libke v The Queen[1] in which their Honours said that the duty to ensure a fair trial extended to a duty in the trial judge

“to make appropriate interventions if [impermissible or unacceptable questions], capable of jeopardising a fair trial, are asked”.[2] 

[14]  I do not think that the duty to ensure a fair trial extends to unilateral exclusion of evidence in circumstances such as these, where the appellant is represented and there are legitimate forensic reasons for agreeing to the admission of the evidence. This case is rather an illustration of what Gleeson J said of the judicial role in Crampton v R[3]:

“One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice”.

[15]  It was also suggested that the trial judge should have at least alerted trial counsel to the question of admissibility, notwithstanding the latter’s seniority of 35 years.  But it is clear that counsel made a conscious decision not to object to the evidence.  And as Hayne J observed in Gately v The Queen[4]:

“It is for the parties, by their counsel, to decide how and on what bases the proceeding will be fought. Consent by counsel for a party to a course of conduct is usually an important indication that that party suffers no miscarriage of justice by pursuit of the intended course”.

Here, as in Gately, there was no allegation of incompetent representation.  I do not think in the circumstances of this case it was incumbent on his Honour either to urge counsel to consider the question of admissibility or to act himself to exclude the evidence.

The assault occasioning bodily harm count - direction and conviction

[16]  Two related grounds of appeal were argued in relation to the conviction of assault occasioning bodily harm.  They were, that the jury’s verdict was unreasonable, and that the learned judge had failed to refer to relevant evidence in his summing up on that count.  It is necessary to set out the evidence upon which the appellant’s submission was based.  P said the assault, which involved her back being kicked and stamped on, left her “pretty badly bruised”.  The assault happened in the morning; that afternoon the appellant called the police and said that P was suicidal.  One of the officers who attended gave evidence.  She said that she and her partner arrived at about 6.00 pm and spoke to P, who denied that she was threatening suicide.  Asked how P had appeared, the officer said

“from memory, she appeared fine.  Our – our purpose of attending, of course, was to ascertain whether or not she was going to commit suicide, so, no, she appeared fine”. 

The appellant had indicated P intended to overdose with Valium; there was no evidence to confirm that.  According to the officer, she and her partner

“ascertained that there was no harm to any persons.  The reason that we’d gone there was because the female was threatening suicide, and from that, well, my observations, she wasn’t, and we had no further dealings in that matter”.

[17]  In his summing up, the learned judge reminded the jury of P’s version of the assault, reading out her evidence in relation to it, both in examination-in-chief and in cross-examination, and similarly reprised the appellant’s evidence denying any such assault.  Later in the summing up he reminded the jury of the police officers’ evidence of attending in relation to the supposed suicide threat, explaining that it was the date on which the assault occasioning bodily harm was alleged.  He mentioned only that the police officers had decided that there was no danger of suicide, and did not deal with the attendance in any greater detail.

[18]  The appellant’s point was this: P did not complain of any injury and the police officers did not observe any injury on her.  Those matters should have been highlighted to the jury in order to put the defence case fairly, and the jury’s conviction on that count, given that evidence, was unreasonable.  I do not think that either proposition holds water.  The point that, although assaulted earlier in the day, P did not complain and showed no obvious sign of injury might have been worth making in defence counsel’s address.  Because the addresses were not part of the appeal record, one does not know whether that argument was made or not, but it was not incumbent on the trial judge to raise or repeat it.  It was not a particularly powerful argument.  It was entirely possible that P thought the assault on its own was not sufficiently serious to warrant a complaint to the police, and she may well have been pre-occupied with convincing them she was not suicidal.  Any bruising on her back would, presumably, have been covered by her clothing.  This was not a point so compelling that it should have caused the jury to acquit on that count.

The indecent assault direction

[19]  The learned judge commenced his direction to the jury on the elements of unlawful and indecent assault in these terms:

“Well the definition of assault, of course, is still the same. The meaning of unlawful is, of course, still the same, and indecent bears its ordinary, everyday meaning. It is what the community regards as indecent. A dictionary meaning of indecent is unbecoming or offensive to common propriety …”

Subsequently he completed the direction in unexceptional terms, explaining that what was indecent was to be judged by:

“…contemporary community standards … having regard to when the conduct was committed, the place at which it was committed, and the circumstances in which it was committed …”.[5]

[20]  In R v Bryant[6] the trial judge had similarly referred to a dictionary definition of indecent as “unbecoming or offensive to common propriety”; in that case in connection with an offence of doing an indecent act with intent to assault or offend under s 227(2) of the Criminal Code[7]. McPherson J, as he then was, pointed out that the word “indecent” was used in the context of many quite different offences, some of which involved lewd forms of behaviour while others did not.  Indecent language was one such context; indecent assault another.  It was not the function of the Criminal Code or, more particularly, of s 227, to punish lapses of good taste or good manners because jury members regarded the behaviour concerned as “unbecoming” or “offensive to common propriety”.  A great deal of human conduct could fall within that formulation without constituting an indecent act within the meaning of s 227.  Sheahan J agreed, noting that the section under consideration was in chapter 22 of the Code, the heading of which was “Offences against Morality”; the offences contained in it were related to sexual impropriety or conduct containing the element of lewdness.  The word “indecent” in s 227 ought not to be construed so as to include conduct which was merely “unbecoming” or “offensive to common propriety”.

[21]  The reasoning in R v Bryant applies equally, in my view, to sexual assaults under s 352 of the Criminal Code.  By incorporating the dictionary definition the learned judge set the parameters for a finding of indecency too widely.  Nonetheless, it is implicit in the verdict that the jury accepted P’s account of what happened, and on any view the attempt to touch her breast and nipple, would constitute an indecent assault.  Had this been the only error, I would have applied the proviso in respect of this count. 

The provision to the jury of summaries of the counts

[22]  The appellant mounted a ground of appeal in these terms:

“The learned trial judge provided documents to the jury likely to contain incorrect material and highlighted the Crown case therein without reference to the defence case”. 

It seems that this ground was advanced on a speculative basis, because the appellant’s legal representatives had not actually seen the documents given to the jury.  Their anxiety was based on his Honour’s reference in the summing up to having included in them “a snapshot picture … of what the Crown allegation is” when no equivalent “snapshot” had been given of the defence case. 

[23]  In fact, the three sheets given to the jury were entirely unobjectionable.  They consisted of a list of the elements of the offence involved in each of the counts, after which the facts said to constitute the offence were outlined.  Those “snapshots” for the respective counts were in these terms:

• The Prosecution alleges that the Accused pushed the Complainant over onto the lounge; began kicking and stomping on her back leaving bruises on her lower back and buttocks.

• The Prosecution alleges that the Accused tried to touch or grab the Complainant on the breasts and groin while in bed and lied on top of her.

• The Prosecution alleges that the Accused penetrated the Complainant’s vagina (count 3) AND penetrated her anus (Count 4) without her consent.

Before the summing up commenced, both the Crown prosecutor and defence counsel were shown the three sheets.  Neither, unsurprisingly, made any objection.  The “snapshots” were nothing more than brief particulars; and there is no substance in this ground of appeal.

     The direction as to how deal with the appellant’s evidence

[24]  The last of the appeal grounds was that the learned judge gave the jury to understand that it was a question of which version, of the two offered, they preferred.  He did not mention to the jury the possibility that they might be left in doubt as to which was true and that, in that case, they should acquit.  Indeed, counsel for the appellant went so far, in his written submissions, as to say that his Honour by his closing observations left the jury with the impression that he endorsed P as an honest witness.

[25]  The learned judge gave and reiterated the conventional directions to the jury that the appellant could only be convicted of any offence if they were satisfied beyond reasonable doubt that the Crown had proved every element of the offence and that the burden was on the Crown, there being no burden on the appellant to establish anything.  More particularly, in respect of the appellant’s having given evidence, he said this:

“Another aspect of the evidence about which I must address you and that is that the accused has given evidence in this trial and has called other evidence in his defence. As I informed you prior to his giving evidence, and as defence counsel has also informed you, he was not obliged to give evidence. The fact that he has given evidence does not mean that he has taken it upon himself the burden of proving his innocence. The fact that he has given evidence may have one of a number of results.

His evidence may convince you that he is not guilty of one or other or all of the counts on the indictment in which case you'll return a verdict of not guilty. On the other hand his evidence may strengthen the case for the prosecution. That is a matter for you as the sole judges of facts to determine.”

[26]  The source of the complaint that the learned judge had invited the jury to compare P’s evidence with that of the appellant’s, indicating a preference for the former, were these words at the conclusion of the summing up:

“Ultimately, the trial comes down to word v. word, as the Crown says, you look at the bigger picture and when you do that, you will be satisfied beyond reasonable doubt that the prosecution has proved each of the charges before the Court and that you should find the accused guilty of each one.”

The appellant’s complaint overlooks the fact that his Honour was at this stage merely reprising the Crown’s arguments, as he had already done for the defence case.  He was certainly not suggesting that the jury adopt the “word v word” approach, let alone that he preferred the word of any witness.  It was, however, an unfortunate note on which to end, without any further comment or warning as to the need to refrain from treating the task as one of resolving competing accounts.

[27]  In R v George[8] the Court of Criminal Appeal was considering a case in which the trial judge had told the jury that they should decide which explanation, that of the Crown or the defendant, they considered more correct.  He had failed, the Court of Criminal Appeal said, to mention a third possibility:  that the jury might be left in doubt as to which version they accepted.  Consequently, the jury might have been left with the impression that their function was to decide which side was lying.  In such a case, “in which the credibility of witnesses is of the upmost importance”, the authorities supported the giving of a direction

“that if they were unable to make up their minds as to truth or falsity of the evidence of either side and they were ultimately left in a situation of doubt, they should acquit”[9]. 

[28]  This Court applied George in R v Booth[10], in which it was said that a refusal to direct that if the jury were in doubt as to where the truth lay, the verdict should be not guilty, would have amounted to an error of law.  (In fact, in that case, there had been no such refusal.)  To similar effect, in E[11], the New South Wales Court of Criminal Appeal emphasised the importance of directing that it was not a question of choosing between the evidence of the Crown’s principal witness and the accused: 

“The best approach, in addition, to saying just that, is to tell the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding the (sworn) denial by the accused, and that they do not have to believe that the accused is telling the truth before he is entitled to be acquitted.”[12]

[29]  That passage from E is incorporated in the suggested direction in the Queensland Supreme and District Courts Benchbook, to be given where an accused gives evidence.  The suggested direction continues:

                     Where, as here, there is defence evidence, usually one of three possible results will follow:

(a)  you may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty;

or

(b)  you may think that, although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict will be not guilty;

or

(c)  you may think that the defence evidence should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.” (footnotes omitted)

Jerrard JA referred to that proposed direction with approval in R v Armstrong[13]. 

[30]  While such a direction might not be essential in every case where a defendant gives evidence (depending on what else is said), in this case it was, at the very least, desirable.  This was a case in which P’s and the appellant’s versions of the crucial events were starkly opposed.  P’s evidence was not corroborated in any way.  It was important that the jury understood that their decision to convict or acquit was not a simple question of deciding which of the conflicting accounts of P and the appellant they found more credible.  The direction given failed to explain to the jury that it was possible for them to find the defence evidence unconvincing or, indeed, to reject it, but nevertheless, to acquit if they were not satisfied that the Crown had made out its case beyond reasonable doubt.  That deficiency would not have been improved by the note on which his Honour ended the summing up.  On the other hand, he did remind the jury repeatedly of the need to be satisfied of the appellant’s guilt beyond reasonable doubt; and if this were the only lack in the summing up, I might not be convinced of a miscarriage of justice. 

[31]  But in addition to failing to bring the intermediate possibility to the jury’s attention, there was, I think, a real prospect that the statement, “On the other hand, his evidence may strengthen the case for the prosecution”, left the jury with the impression that an adverse view of the appellant’s evidence could serve to bolster the Crown case.  This was not a case in which the Crown sought to rely on lies told by the appellant, and no Edwards[14] direction was given.  His Honour’s reference to strengthening the prosecution case was capable of being understood as meaning that if the jury took the appellant to be lying, it would go to support a conclusion of guilt.  In leaving that interpretation open, it was a dangerous misdirection.

[32]  The appellant’s counsel at trial sought no re-direction.  Notwithstanding, this case turned entirely on whether P’s evidence was accepted so as to satisfy the jury beyond reasonable doubt of the appellant’s guilt.  In those circumstances, I consider that the direction as given did lead to a miscarriage of justice; there is a real prospect that the appellant lost a chance fairly open to him of being acquitted as a result of the misdirection.

[33]  I would set aside the convictions and order a new trial on all four counts.

[34]  WHITE AJA:  I agree with the reasons for judgment of Holmes JA and the orders which she proposes.

[35]  I also agree with the comment of the Chief Justice about the desirability of judges using the “Benchbook” directions unless there is good reason for not doing so.