SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The appeal should be allowed, the convictions set aside and a new trial ordered on each count for the reasons given by Mackenzie J.

[2]  FRASER JA: I agree with the reasons of Mackenzie J and the orders proposed by his Honour.

[3]  MACKENZIE J: The appellant was convicted of two counts of unlawfully and indecently dealing with a child under 16 years who was under his care.  Both offences were alleged to have occurred on the same day in relation to a 14 year old girl who, with a friend, was visiting the appellant’s property near a provincial city to go horse riding. 

[4] The grounds in the notice of appeal were not argued and, by leave, the following grounds were substituted:

(a) the learned Judge misdirected the jury as to the meaning of “proof beyond reasonable doubt”; and

(b) the learned trial Judge failed to direct the jury as to the relevance, use and dangers that can be made of evidence of distressed condition.

[5] The complainant had never been to the property before, but her friend had been there many times previously. During the day the girls swam in the appellant’s pool.  The complainant was wearing a bikini.  At the time of the incidents complained of the appellant was also in the pool, wearing only his underpants, which was apparently what he frequently did.   Amongst other activities, the girls and the appellant engaged in a “dunking game” which involved pushing each other under water and upending each other. According to the complainant, during the course of this game, the appellant placed his hand inside her bikini bottom on one occasion (count 1) and grabbed her on the breasts outside her bikini on two or three other occasions (count 2).  When these incidents happened she swam away from him.  Her friend did not observe anything untoward happening to the complainant in the pool; on at least one occasion, she was said to be at the opposite end of the pool at the time of the incident complained of.

[6] During the afternoon, the complainant and her friend were collected from the appellant’s property by her friend’s mother.  According to the complainant’s friend, the complainant was uncharacteristically quiet during the car trip home.  Later, according to her friend, the complainant told her that she never wanted to go out to the appellant’s again.  Her friend asked her why and she gave no answer.  The following day the complainant said that something had happened but she didn’t want to tell her friend exactly what it was.  Once again her friend asked her what the appellant did and once again there was no reply.  According to her friend, the complainant was very upset and confused at the time of the conversation. 

[7] Some days later, the complainant had a conversation with her 15 year old boyfriend about not wishing their relationship to continue because she was “a bit scared of boys or men at the moment”.  Under lengthy questioning by him, she eventually told him that the appellant had touched her.  A couple of days later, when he ascertained that she had failed to tell her mother about the interference, he told her mother, in the complainant’s presence, about her allegations.  That set in train a series of events that resulted in the charges being laid. 

[8] In the summing up and in notes given by the learned trial Judge to the jury for their assistance, the issue for the jury was expressed to be, in the case of count 1, whether the Crown had proved beyond reasonable doubt that the accused deliberately put his hand in the complainant’s bikini bottom and touched her vagina for his sexual pleasure.  In the case of count 2, it was whether he deliberately grabbed her breasts in his hands for his sexual pleasure.  It was also made plain in the summing up that accidental touching in the course of the game being played in the pool had to be excluded beyond reasonable doubt.  A suitable direction that proof beyond reasonable doubt was necessary to establish guilt was also given.  There is no complaint about any aspect of the summing up itself with respect to ground (a).

[9] What ground (a) relates to is a redirection given in response to questions from the jury, the first of which asked “How does the law define the vaginal area?”.  The second was “If the defendant’s hand was placed in her bikini bottoms, does that of itself constitute an indecent dealing, or must it be placed in the area defined in question one?”.  Immediately before the part of the redirection upon which the appellant relies was given, a redirection was given concerning indecently dealing.  It is not the subject of any complaint.  The critical passage of the redirection for the purpose of this ground is the following:

“So I also stress to you that, in this case, for the alleged acts to be indecent and unlawful they had to be done deliberately by Mr Walton for his sexual pleasure.  That is to say, not by accident or mistake or for some completely innocent reason like simply grabbing her and by mistake hits her in the wrong spot; none of those things.  It has to be some – the sexual element to it, which I stressed before.

So, if you think about the question then, if you’re not persuaded beyond reasonable doubt that he had some sexual motive about this and did it deliberately well you simply acquit him because there’s no offence at all if he does it innocently.  All right?  In a non-sexual non-deliberate way.  In an accidental way – if you thought, for example, that there’s a good chance of what he did was accidental or a mistake, well that’s the end of the matter; he’s not guilty.  Because that would mean no sufficient finding of something done deliberately for a sexual reason.”

[10]  The appellant’s submission was that there were two flaws in the second last sentence quoted.  One was that the phrase “good chance” implied a lesser standard of proof than “beyond reasonable doubt”.  The second was that the way in which the sentence was expressed involved a reversal of the onus of proof.

[11] Thomas v R (1960) 102 CLR 584 and Green v R (1971) 126 CLR 28 remain binding authorities concerning a proper direction as to “beyond reasonable doubt”.  See also R v Irlam: ex parte A-G (Qld) [2002] QCA 235.  

[12]  Use of the concept of a “good chance” that there were circumstances that would give rise to a defence is apt to deprive the accused of the benefit of the doubt if it appears in a context where the jury may equate it to the concept of “reasonable doubt” (R v Punj [2002] QCA 333).  Paraphrasing what Williams JA there pointed out, at 600, if there was a “reasonable chance” that an exculpatory factor existed, the jury could not be satisfied beyond reasonable doubt of guilt; but whilst the jury may have concluded there was not a “reasonable chance” that the exculpatory factor existed, they may nevertheless have had a reasonable doubt on the issue to which the appellant was entitled.

[13]  It follows from that that use of a phrase such as that used in this case is not inevitably fatal.  If, in the context of the directions given, it can be said that the jury would nevertheless have understood that the standard of proof was proof beyond reasonable doubt, notwithstanding the use of the inappropriate words, the direction would not, overall, be defective. The question in the present case is whether, in the context in which the redirection was given, the appellant may have been deprived of the benefit of a doubt set by the standard of what the jury regarded to be reasonable in the circumstances (Punj, 6-7).

[14]  The jury reached its verdict very soon after the redirection was given.  Several hours had elapsed since the original directions, conceded to be accurate, had been given.  Defence counsel below unsuccessfully raised some concerns about the redirection, but without direct reference to the issues now complained of.  While it may be speculated that the form of the jury’s questions may suggest that it was, at that point, concerned with the issue of indecency in relation to count 1 on the premise that the accused’s hand “was placed” in her bikini bottom, it is not, in my view, possible to conclude that the reference to the jury returning a verdict of not guilty if the jurors thought that there was a “good chance” that an exculpatory factor existed may not have misled them as to the onus and standard of proof required.  The redirection was the last thing the jury heard before it returned its verdict after several hours’ deliberations.  Had there been reinforcement of the original directions at the time the redirections were given, the risk may have been minimised.  The appeal must therefore be allowed, the verdict of guilty on each count be set aside and a new trial ordered.

[15]  With regard to ground (b), reduced to its essence, the defence address at trial was to the effect that the jury would have a real doubt about whether the complainant was truthfully and reliably recounting things that actually happened to her.  Parts of her evidence that were said to be inconsistent were referred to.  The argument was developed that in the days subsequent to the incident and prior to her conversation with her boyfriend, she may have reconstructed events and convinced herself that incidents that happened during the games being played in the pool had a sexual aspect, when they were merely accidental.  When she was questioned persistently by her boyfriend after she gave her excuse for breaking off the relationship and had answered his question whether she had been interfered with affirmatively, the matter got out of control.  Once her boyfriend had told her mother that she had been interfered with, she would have felt unable to resile from her allegations.

[16]  In the Crown and the defence addresses, the evidence that the complainant was in an unusual mood in the days after her visit to the appellant’s property was referred to only for the purpose of suggesting that it was consistent with their respective cases.  It was not argued that her mood could be used as evidence that she had been indecently dealt with.  R v Rutherford [2004] QCA 481 is distinguishable on the basis that, in that case, there was a real risk that a jury might, in the absence of appropriate directions, assume that the complainant’s distress was due to her being forced to engage in sexual conduct, where the defence case was that she had willingly engaged in it.  The issue whether the distress was evidence of the former or may have been due to guilt arising from infidelity to her partner was an important element in the case, upon which a direction was necessary.  

[17]  While a direction as to the use to which the evidence of the complainant’s mood could be put might have been given out of an abundance of caution, I am not persuaded that such a direction was necessary in the circumstances of the present case.  Even if it was, no substantial miscarriage of justice could have occurred having regard to the way the case was conducted.  Ground (b) is therefore not made out.

[18] I would order that the appeal be allowed, that the convictions be set aside on counts 1 and 2 and that there be a new trial on each count.