R v FAC[2012] QCA 213

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: The appellant was convicted on 14 July 2011 of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, two counts of common assault, one count of assault occasioning bodily harm and five counts of rape.  He was sentenced to: 11 years imprisonment for the maintaining offence and four of the rapes; eight years imprisonment for the remaining rape offence; five years imprisonment for the three indecent treatment counts; and to lesser terms of imprisonment for the assault offences.  All terms of imprisonment were ordered to be served concurrently.  The appellant appeals against his convictions on the ground that the verdicts were unsafe and unsatisfactory “due to the inconsistent accounts given to the preliminary complaint witnesses by the complainant and the absence of any significant injuries being observed by those witnesses”. 

[2] The complainant was aged between 11 and 15 at the time of the offences.  She was then residing with her foster mother who was in a de facto relationship with the appellant.  At relevant times the appellant was in his 40’s. 

[3] The trial commenced on 11 July 2011, but no witnesses were called until the following day when a voir dire was held in respect of the evidence of a family support case manager, Ms Adamson.  The prosecution case was then opened, tape recordings of two interviews given by the complainant to police were played and the cross-examination of the complainant commenced.  The complainant’s cross-examination concluded on the third day of the trial.  Ms Adamson and Ms S, a class-mate and friend of the complainant, also gave evidence that day.  On the fourth day of the trial, a police officer gave brief evidence, counsel addressed, the trial judge summed up, and the jury’s verdicts were delivered. 

[4] In an interview with police on 5 December 2004, the complainant informed the interviewing officer to the following effect.  She had left her foster mother’s home early that morning, leaving an explanatory letter.  She contacted her grandparents by telephone and was eventually taken by them to a police station.  She said the night before she was informed that her foster mother and the appellant had recently been married.  If would seem that this came as a surprise and shock to the complainant.  She said that the appellant had been physically violent to her for a lengthy period and had been sexually molesting her for about three and a half years.  She said that the appellant had raped her “countless” times, but only specified five instances of penile vaginal or oral penetration.

[5] The offending conduct commenced with the appellant making the complainant hold his penis.  Asked to identify the next time that such a thing happened, the complainant said “…I must say now, there’s no certain sequential of events, like, I can remember.  It’s happened so many times, it’s countless”.

[6] Another incident occurred at the time of a local musical event “The Barra Bash”.  On that occasion, the appellant was babysitting the complainant and her young brother, the mother having gone to the festival. 

[7] The last of the specified instances of rape occurred on the morning of the complainant’s birthday in October 2004. 

[8] After complaining about being requested to describe such conduct in “graphic detail” because it made her “so sick”, she explained that the appellant pushed her down on her back on her bed in her bedroom, spread her legs, had intercourse with her and ejaculated on the bed.  She was afraid that he may not have withdrawn quickly enough and that she may have become pregnant. 

[9] She also said that the appellant invited her into a shed in the yard to molest her from time to time and that she had to follow him because she was afraid that he would hurt her if she did not.  She said that he had thrown things at her in the past.  When in the shed, the appellant would have intercourse with her standing up, but would withdraw and ejaculate onto the “chook bag that’s in the back of the shed”.  The appellant made her suck his penis only twice.  On other occasions the appellant would place his penis between the cheeks of her buttocks and handle her breasts. 

[10] Asked later how many times she had been raped, she said, “As I said before, I wouldn’t have a clue, it’s countless because – and you have to add up all the weekends Mum’s gone for a rest, all the weekends – you know?  It’s only been a couple of – a couple of nights.  And then there was one time he was away and we were both in the bathroom, we were, like – had nothing on, it was so disgusting”.

[11] Intercourse normally took place in the shed, but it had happened in the bathroom once and probably about seven times in her room, three times in a caravan parked in the yard and twice in a nearby sugarcane field on a feed bag placed on the ground. 

[12] The complainant spoke of an occasion on which she was in a car with the appellant when he hit her about the arm and head with a hammer.  It “[h]urt like hell” and she “had bruises afterwards”.  The appellant belted her with his belt and, occasionally, the buckle would penetrate her skin.  He also belted her with a belt which had spikes on it like those sometimes seen on dog collars.  Her foster mother stopped the appellant using the belt on her, but it did not stop him from “punching [her] and crap”. 

[13] She frequently had bruises which others had seen, but she did not tell anyone about how they had been inflicted.  She explained them by saying she had an accident.  On one occasion, the appellant squeezed her throat causing her to pass out.  The complainant, prompted by the interviewing police officer on a number of occasions to provide more detail of the incidents of sexual misbehaviour which she was recounting, made it plain that she was reluctant to do so.  Overall, she provided little in the way of detail as to the dates and circumstances in which the offending was alleged to have occurred. 

[14] In his opening address, the prosecutor said:

“Now, when you hear [the complainant] talking to the police officers you will hear her refer to some specific incidents, some of which she can refer to particular times, particularly one in relation to her birthday, and others which she is unable to specify when in that three and a-bit year period mentioned in count 1 she’s unable to specify exactly when it occurred.  Bear in mind that in her words [the appellant] raped her, in her words, ‘countless times’ during that period, and so it may come as no surprise to you that she’s not in a position to give precise dates and times for all of them.”

[15] The prosecutor gave a brief description of the circumstance relied on to support each of counts 2 to 12 on the indictment in his opening address.  In respect of counts 2, 5, 6, 7, 8, 9, 10, 11 and 12, the prosecutor gave references to the page or pages in the first and occasionally the second record of interview, in which the relevant offending had been described by the complainant.  No such references were provided in respect of counts 3 and 4.  That was probably an oversight.  The prosecutor explained that in the first interview the complainant spoke of an occasion on which her foster mother had heard screaming because the appellant was trying to put his penis in her mouth.  She resisted and he punched her in the head.  The appellant explained to the complainant’s foster mother that the complainant had refused to put her dishes away.  The punching related to count 4. 

[16] In his closing address, the prosecutor did not deal individually with the 12 counts on the indictment.  He explained that the complainant was able to associate some offences with events such as her birthday and the “Barra Bash”, but that her evidence was that the offending occurred regularly over a period in excess of three years and was “a very big part of her life for a very long period of time”.

[17] Defence counsel also did not deal with the alleged offences individually.  He concentrated on identifying and elaborating on a number of matters which he submitted should cause the jury to reject the complainant’s evidence generally.  These matters were:

1. The absence of evidence of the injuries one would have expected people, including the foster mother, to have seen had the complainant been beaten regularly “…by the use of a hammer, glass, rakes being broken across her back, belts with exposed metal tearing her flesh”.  In this regard, reference was made to Ms S’s evidence that she saw occasional bruising to the complainant’s arms, but in respect of which she had said “I’m not sure what they were from … They could have been … from ... anything”.  Specific reference was made to the allegation of choking and the lack of evidence in relation to that.

2. It was submitted that the bag on which semen was found was at the front of an open shed, yet the complainant said that the bag on which the appellant customarily ejaculated was at the back of the shed.  Even so, the shed was an open one.

3. One of the acts of intercourse was alleged to have occurred in a bedroom in the house which was quite small, beside or near the room in which the foster mother was sleeping.  The foster mother was not called out to or disturbed.

4. The foster mother was potentially a very important witness but was not called by the prosecution even though the defence wanted her called.

5. Ms Adamson was asked if the complainant had said how many times she had had sex with the appellant.  Ms Adamson responded, “Not really.  She just said it was happening not often and it happened, like, a few times”. There were no complaints about the alleged hitting, even with the hammer.  Ms S, referring to what she had been told by the complainant, said, “He was raping her again and pretending to hit her”.  The point was made also of the lack of any complaint to Departmental officers with whom the complainant was in regular contact.

6. The complainant had a motive to lie.  She was unhappy, teased and victimised.  It would make sense for her to have made up allegations to create sympathy.

7. Other conduct on the part of the complainant cast doubt on her story.  She denied any sexual abuse to the school guidance officer.  On an earlier occasion she made a complaint to her stepmother of sexual abuse.  When informed of this, the appellant said, “Let’s go to the police and get this sorted out”.  The allegation was withdrawn shortly after this.  The complainant explained that she told her foster mother that her allegations were a lie because of threats made to her by the appellant.  It was submitted that the timing of the withdrawal of the allegations made this explanation an unlikely one.

[18] The trial judge summed up to the jury between 12.30 pm and 1.04 pm.  The summing up did not identify the evidence relating to the 12 counts or refer to where that evidence may be found.  There was passing reference to the use which could be made of Ms S’s evidence that the complainant would often burst into tears and say, “Why me?”

[19] Although the trial judge gave a conventional direction as to the possible impact of inconsistencies in the accounts given by persons to whom complaints were made with the evidence of the complainant, such inconsistencies were not identified.

[20] The summing up of the prosecution and defence cases was as follows:

“The prosecution submits that you should find the complainant a credible and reliable witness and that her allegations are corroborated by the evidence of the defendant’s semen on the bag in the shed and the bruising to the complainant noted in the evidence of Ms Adamson and Ms S.

The defence submits that this evidence is not sufficiently probative of anything, in terms of corroboration and the numerous inconsistencies in the complainant’s version of events are such that you cannot be satisfied beyond reasonable doubt of the guilt of the defendant.  Be careful not to give too much weight to the fact that there was some semen from the defendant found in the shed and that she had some bruising or rashes on her arms.  The defendant submits that the complainant was an unhappy girl, who made the allegations up for sympathy and to get away from the school where she was being bullied and was, again, most unhappy.”

[21] It is apparent from this passage from the transcript that the summing up did less than justice to the defence case.  If anything, it trivialised it and had the potential to diminish defence counsel’s address.

[22] The summing up was supplemented as follows by the trial judge, after some passages from the complainant’s interviews were replayed to them at their request:

“Ladies and gentlemen, they’re the passages that you wished to have.  I just need to remind you of the submissions of the defence that the complainant was an unhappy girl who made up the allegations for sympathy, to get away from an unhappy situation.  You need to bear in mind the countervailing allegations that are relevant to this evidence when you reconsider this evidence.  You also need to take into account the submissions made by the defence as to the lack of cooperation, corroboration and their submissions about the corroboration that does exist.”

[23] Counsel for the respondent submitted that having regard to the relative brevity of the trial, the limited extent of the evidence, and the fact that the jury were referred by the prosecutor in his opening address to the evidence relating to each count, it can be inferred that the jury were aware of the evidence relating to each count when deliberating.  They had been provided at the commencement of the prosecutor’s opening address with a 12 page document on which one of the 12 counts on the indictment appeared at the top of each page above the word “Notes”.  The prosecutor explained to the jury that space had been left on each page for the jury “to make whichever notes you see fit in relation to each of the counts”.

[24] It would appear that at least one juror had made notes, as the judge received a note from the jury during their deliberations which read:

“Page 4 and 5, second interview relating to Barra Bash.  First interview for [the complainant], 47, 55 and 56.  First interview for [the complainant] page 16 for [the complainant].  The jury wish to revisit these items on the transcripts.”

[25] It was further submitted by counsel for the respondent that the jury were alive to the central thrust of the defence case which was that the jury would doubt the credibility of the complainant generally.  The centrality of this issue, it was argued, was reinforced by counsels’ addresses and the trial judge’s observation after passages from the complainant’s interviews were played to the jury.

[26] In Domican v The Queen,[1] it was observed in the joint judgment that:

“A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.” (citations omitted)

[27] Their Honours then observed:[2]

“Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.” (citations omitted)

[28] In my opinion, the trial judge should have reminded the jury of the evidence relevant to each of the 12 counts having regard to the number of counts and the vagueness of some of the evidence.  The following observations of Henry LJ giving the judgment of the Court in R v Amado-Taylor,[3] in which the trial judge did not sum up the facts of the case to the jury, explain why that approach was to be preferred:

“First, counsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial.  And the first step to such a trial is for the judge to focus the jury’s attention on the issues he identifies.  That responsibility should not be delegated (or more accurately here, abandoned) to counsel, doubly so when they do not know, when making their speeches, what the judge is expecting of them.

Second, the fact that members of the jury were taking notes does not relieve the judge of this responsibility.  Evidence is not given sequentially—it comes out witness by witness and needs to be marshalled and arranged issue by issue.  This is the judge’s responsibility—it involves work out of court, which he cannot simply pass on to the jurors.”

[29] It is not, however, necessary to decide whether that omission of itself amounted to appellable error.  And I would not wish to give the impression that it is always necessary for a trial judge in summing up to recite or summarise the evidence, however brief and uncomplicated.

[30] It was observed in the joint judgment in Domican,[4] after referring to the stipulation in s 405AA of the Crimes Act 1900 (NSW) that, in particular circumstances, a judge need not summarise “the evidence given in the trial”:

“Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused.” (citations omitted)

[31] In R v Mogg,[5] it was said by McMurdo P:

“The onerous duties of a trial judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel.”

[32] The summing up failed to “accurately and fairly” put the defence case.  I accept that the central theme of the defence case was that the complainant was so lacking in credibility that the jury could not rely on her evidence to establish guilt beyond reasonable doubt.  The challenge to credibility, however, was based on the generally discrete contentions which included the seven points identified earlier.  In order to properly put the defence case, the summing up was obliged to descend to some factual particularity, at least in respect of those points which identified evidence which, on its face, appeared improbable or where the argument advanced otherwise appeared to have substance.  As I remarked earlier, the summing up had the potential to detract from defence counsel’s address rather than remind the jury of its content.

[33] No redirection was sought by defence counsel but that, as was said in Mogg,[6] “…is not fatal to the appellant’s argument, the question being whether the appellant has been deprived of the chance of an acquittal through the misdirection”.

[34] For the above reasons, I have concluded that there was an error in the summing up which, when taken together with the failure to relate the facts to the counts on the indictment, deprived the appellant of the chance of an acquittal.  A miscarriage of justice has resulted and the verdicts should be set aside and a retrial ordered.

[35] The appellant advanced a variety of arguments, many of which had been ventilated before the jury and were not ones that a reasonable jury would have been bound to accept.  Other submissions were either wrong in fact, based on a misunderstanding of the trial process, misguided or unintelligible.  Having regard to my conclusion that the verdicts should be set aside and a retrial ordered, Isee no benefit in further explaining why the appellant’s arguments lack merit.

[36] For the above reasons I would order that:

1. the appeal be allowed;

2. the verdicts be set aside; and

3. there be a retrial of all counts on the indictment.

[37] FRASER JA:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with those reasons and with the orders proposed by his Honour. 

[38] DOUGLAS J:  I agree with Muir JA’s reasons and the orders proposed by his Honour.