SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with Dalton J's reasons for dismissing this appeal.

[2]  FRASER JA:  I agree with the reasons for judgment of Dalton J and the order proposed by her Honour.

[3]  DALTON J:  The appellant appeals against his conviction by a jury on two counts of rape (one with his penis and one with his fingers) and one count of unlawful and indecent dealing with a child under 16, when that child was under 12.  There are two grounds of appeal.  The first is that the trial judge did not sufficiently warn the jury in accordance with Robinson v The Queen.[1]The second ground of appeal is that there was a miscarriage of justice at the trial because defence counsel did not have, or did not consider, all relevant information before the trial.

Robinson v The Queen

[4] The complainant is the appellant’s sister.  The indictment alleged that all three offences took place on dates unknown between 31 December 2001 and 6 February 2003.  The case presented against the appellant was that the conduct the subject of each charge occurred on different days.  On all three days the appellant was alleged to have dealt with the complainant in her bedroom at her family home at a time when she was 10 or 11 years old and he was 15 or 16 years old.  The first time the complainant made allegations of the conduct was in late 2007.

[5] The complainant was 19 at the time of trial and gave evidence on closed circuit television.  During her evidence the complainant was visibly upset.  At separate times, both the trial judge and defence counsel enquired of the complainant, in front of the jury, if she was all right.  In the absence of the jury, the trial judge described the complainant as apparently suffering an anxiety attack whilst giving evidence.  The matter was adjourned at one point for the prosecutor to make arrangements for the complainant to be examined by a Government Medical Officer but, in the event, no such examination took place.  There was evidence that the complainant had sought psychological and other counselling at various times.  There was evidence that the complainant had harmed herself and made suicide attempts.  There was evidence that the complainant had made false or exaggerated threats to commit suicide.

[6] During their addresses to the jury, both the prosecutor and defence counsel referred to the complainant’s difficulty in giving evidence.  The prosecutor submitted that the jury would find support for the complainant’s veracity in this obvious difficulty.  Defence counsel referred to her being “distinctly unwell” as one, but not the sole, reason why the jury would not accept her evidence as truthful or reliable.  Defence counsel addressed the jury as to significant stressors (her mother’s being wheelchair-bound after having suffered a stroke; the loss of a brother to cancer, and the appellant’s use of drugs) likely to have caused the complainant to seek and receive psychological treatment over the years.  Defence counsel referred to the false or exaggerated suicide attempts as attention seeking behaviour, and told the jury that it was not unknown for disturbed people to make unfounded allegations against others.  As well as these submissions, defence counsel drew to the jury’s attention various matters which had no direct connection to the complainant’s psychological state, which were said to show that she was untruthful and unreliable.

[7] The primary judge summarised the matters raised by defence counsel when summing-up to the jury and the appellant does not complain that any relevant matter was omitted.  Indeed, the primary judge drew the jury’s attention to an inconsistency in the evidence which he noted had not been mentioned in defence counsel’s address.  Having summarised these matters, the primary judge discussed the delay between the alleged conduct and its first having been raised by the complainant.  He told the jury that the fairness of the trial had necessarily been impaired by that delay.  He went on to say:

“So, I warn you that it would be dangerous to convict upon the complainant’s testimony alone unless scrutinising it with great care considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.” (my underlining)

[8] As to the complainant’s credibility, his Honour said in his initial directions to the jury:

“Remember also that a person may have a good memory but remember that person may be honest but may not have a good memory.  Witnesses may also be nervous when they give evidence.  Giving evidence in a criminal courtroom is an unfamiliar experience for most people, and people, of course, can be nervous can be mistaken.  But in the end it is up to you to determine the weight that you give a particular witness’s evidence and whether or not you accept that witness as a witness of truth.”

Twice in redirections the primary judge made similar comments to the jury.

[9] The trial judge gave a direction in accordance with R v Markuleski[2] on two occasions, initially, and on one of the occasions calling for redirections.

[10]  The appellant submitted that the primary judge ought to have warned the jury specifically as to the need to scrutinise the complainant’s evidence with great care because of: her psychiatric health; her young age at the time of the alleged conduct; the likelihood of error in recollection increasing over time; the risk of erroneous and distorted recollections due to her being a child at the time of the alleged conduct; the lack of medical evidence as a result of the delay, and other inconsistencies both within the complainant’s evidence, and between her evidence and the evidence of others to whom she made preliminary complaints.

[11]  It is accepted by the appellant that the primary judge drew all these matters to the attention of the jury but, he says, that was in the context of summarising defence counsel’s address to the jury, the summary did not have the authority of the Court and was not in terms a warning.  That there is a difference between a summary of defence counsel’s address and a warning given by the trial judge in this respect cannot be doubted.[3]  The question is whether the law required a warning in accordance with Robinson v The Queen in the circumstances of this particular case.  In Robinson various features of the evidence, together with the absence of corroboration, warranted a warning because they:

“created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.”[4]

It is not simply by dint of comparing factual similarities in the evidence in one case with that in another, that one determines if a warning should be given.  The question is whether on the facts of any particular case, the absence of a warning gives rise to the danger of a miscarriage of justice.[5]

[12]  In Longman v The Queen[6] Brennan, Dawson and Toohey JJ said:

“There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother.  It would not have been surprising if these circumstances had elicited some comment from the trial judge … But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v Spencer.  That factor was the appellant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution … ” (my underlining)

[13]  There was an obvious reference to the underlined part of the above passage in the judgment of Crennan J in Tully:

“Neither Longman nor Robinson is authority for the proposition that it is imperative to give a warning in accordance with Longman when faced with the specific concatenation of circumstances identified by the appellant.  The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice.  There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences.” [7]

[14]  In this case, the judge’s warning made reference to the jury’s considering the circumstances relevant to the evaluation of the complainant’s testimony – see the underlined part of the extract at paragraph [7] above.  While the warning followed a discussion of delay in making complaint, it was given not long after the trial judge summarised defence counsel’s submissions as to the matters negatively affecting the complainant’s credibility, and it was in its terms wide enough to comprehend and apply to those matters, as well as delay.  It was not in its terms a warning only about delay.

[15]  Insofar as the appellant’s case rested particularly upon the complainant’s demeanour in the witness box being more than ordinary nervousness, and as displaying her being psychiatrically unwell, that was a matter readily apparent for the jury to assess and not therefore something which required a particular warning in accordance with the rationale in Longman’s case.

[16]  As is emphasised in the judgments in Tully, whether or not a warning is necessary in any particular case depends not just upon the facts of that case but upon the danger of there being a miscarriage of justice if a warning is not given.  In this case the trial was short, as was the summing-up.  Shortly after defence counsel made his address, the trial judge reminded the jury of the salient points he made about the complainant’s credit and then, after a short discussion of delay, gave the jury a warning which was in terms wide enough to comprehend both the matter of delay and matters going to the complainant’s credit.  In my view, the warning given by the trial judge was sufficient.

[17] It is relevant to note that neither counsel asked for a redirection in terms of Robinson after the initial summing-up.  The jury came back for redirection twice, and on each occasion there was argument in the absence of the jury as to what the trial judge should say to the jury regarding the complainant’s credit.  On neither of these occasions did either counsel request a Robinson direction. 

Documents not in Possession of Defence Counsel

[18]  The second ground of appeal is that material relevant to the appellant’s defence was not in the possession of, or was not considered by, his counsel.  Two documents are relied upon.  The first is a victim impact statement.  The complainant signed a victim impact statement on 8 July 2010.  It was provided to solicitors acting for the defence on 15 July 2010 and on that day those solicitors emailed it to defence counsel.  The evidence is that he did not receive it.  The trial began on 19 July 2010.  The jury retired to consider its verdict on 22 July 2010, and returned its verdict on 23 July 2010.  On 22 July, after the jury had retired, the prosecutor handed defence counsel a second copy of the victim impact statement.

[19]  This case is not on all fours with such cases as R v HAU[8] where, in breach of the Crown’s obligation, documents are not disclosed.  In those circumstances, the Court:

“cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure.  It is enough that the opportunity which the defence was denied ‘could have made a difference to the verdict’”.[9]

[20]  In this case the defence did have the victim impact statement because the Crown disclosed it to the defence fairly promptly after it was obtained, and several days before the trial.  In these circumstances, it is necessary for the appellant to show that there was a miscarriage of justice at the trial because defence counsel did not receive the victim impact statement when it was emailed to him, but only after the jury had retired.[10]  It is therefore necessary to look to see what parts of the victim impact statement are relied upon as being so significant that there was a miscarriage of justice when defence counsel ran the trial without being appraised of them.  There are three such matters relied upon, I examine each of those in turn.

[21]  First, the complainant said in her victim impact statement that at the time of the offence alleged at count 1 of the indictment, “I was scared and I froze and didn’t know what he was doing.  I was upset and crying.”  Her evidence at the trial was that she froze, but she gave no evidence she was crying at the time of the offence alleged at count 1, or at the time of the other offences.  The second matter relied upon for the appellant was that in the victim impact statement the complainant said, “I’m no longer welcome at the house any more”, referring to her family home.  At trial the complainant said that she chose to move out of the family home.  The reasons why she made that choice were not explored.  It is difficult to see in relation to the second point that there is any inconsistency between the victim impact statement and the complainant’s evidence at trial.  To the extent that there is in relation to the first point – crying – the inconsistency is small.  Any forensic advantage to the defence case in cross‑examining about these two points would likewise have been small and necessarily to be weighed against the significant forensic disadvantages to the defence if the prosecution required the defence to tender the victim impact statement, having cross-examined on it.  Further, there were obvious dangers to the defence in opening the topic of the complainant’s being excluded from her family home.

[22]  The third matter relied upon by the appellant in relation to the victim impact statement is that it lists people and institutions from whom the complainant received counselling and psychiatric treatment.  Some, but not all, of those people were known to the defence independently of this document.  The defence says that, had it received the victim impact statement earlier, it would have subpoenaed the records of the various doctors and institutions and the subpoenaed material may have provided grounds to cross-examine the complainant as to her credit.  There are two points to note.  First, the solicitor for the defence did have the victim impact statement and knew that in relation to other material, the approach of the defence had been to subpoena records for this purpose.  The second matter is that the appellant bore the onus of proof of demonstrating that there was a miscarriage of justice in relation to this material yet it had not subpoenaed the material before the appeal and was thus not in a position to say that it would have been forensically advantaged by anything it had obtained.  It cannot be assumed that the material held by the psychiatrists and mental health institutions listed on the victim impact statement would be likely to forensically advantage the appellant.  The material may well be potentially damaging to the defence case because it shows, or is consistent with, the impact of abuse perpetrated upon the complainant.

[23]  The appellant did not criticise his trial counsel for not applying for a mistrial when he received the victim impact statement on 22 July 2010 after the jury had retired.

[24]  The second document which the appellant relied upon was a report of a psychologist, Walsh, dated 2 October 2009.  There is no doubt that the report was briefed to defence counsel.  He did not cross-examine on it.  The appellant’s written submissions remarked upon inconsistencies between the version of events recounted by the psychologist in the report and the complainant’s evidence at trial so far as dates upon which, and the time period over which, the offences occurred.  The point was not addressed orally at the hearing of the appeal.  There is nothing to indicate that a failure to expressly cross‑examine by reference to the psychologist’s report was anything other than a reasonable forensic decision made by counsel running the trial for the defence.

[25]  I cannot see that the appellant has shown that there was a miscarriage of justice either as a result of defence counsel not having the victim impact statement during the trial or of his not cross-examining expressly on the basis of the psychologist’s report.

[26]  I would dismiss the appeal.