R v IE[2013] QCA 291

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Gotterson JA’s reasons for allowing this appeal and ordering a retrial.

2. The trial judge erred in failing to direct the jury that the appellant’s statements in the pretext phone call with the complainant could be treated as an admission only of generalised sexual abuse of the complainant when he was a child, and only if the jury were satisfied of that beyond reasonable doubt.^[1]  The respondent, rightly, does not contend that this is a case warranting the exercise of the proviso under s 668E(1A) Criminal Code 1899 (Qld).  It follows that the appeal must be allowed and the convictions set aside.

3. Unless the appellant succeeds in his contention that the verdicts are unreasonable or cannot be supported having regard to the evidence under s 668E(1) Criminal Code, a retrial must be ordered.  After reviewing the whole of the evidence, which is comprehensively set out in Gotterson JA’s reasons, I consider that it is open to a properly instructed jury to conclude beyond reasonable doubt that the appellant was guilty on the charges on which he was convicted.  As this ground of appeal is not made out, there must be a retrial.

4. I agree with the orders proposed by Gotterson JA.

5. MUIR JA:  I agree with the reasons of Gotterson JA and with his proposed orders.

6. GOTTERSON JA:  After a trial over five days in the District Court at Brisbane, on 21 October 2011 IE (“the appellant”) was convicted of seven offences all concerning the one complainant.  The counts on which the appellant was convicted were all alleged to have been committed at Brisbane.  They are as follows:

1. Count 1: unlawfully and indecently dealing with a boy under 14 years between 9 December 1968 and 24 April 1971 (Criminal Code (Qld) s 210).

2. Count 2: unlawfully and indecently dealing with a boy under 14 years between 9 December 1968 and 24 April 1971 (Criminal Code (Qld) s 210).

3. Count 3: unlawfully and indecently dealing with a boy under 14 years between 24 April 1971 and 9 December 1972 (Criminal Code (Qld) s 210).

4. Count 4: having carnal knowledge of the complainant against the order of nature between 17 June 1973 and 11 August 1973 (Criminal Code (Qld) s 208(1)).

5. Count 5: having carnal knowledge of the complainant against the order of nature between 25 June 1975 and 31 December 1977 (Criminal Code (Qld) s 208(1)).

6. Count 6: having carnal knowledge of the complainant against the order of nature between 25 June 1975 and 31 December 1977 (Criminal Code (Qld) s 208(1)).

7. Count 7: having carnal knowledge of the complainant against the order of nature between 25 June 1975 and 31 December 1977 (Criminal Code (Qld) s 208(1)).

7. On 24 October 2011, the appellant was sentenced on each of Counts 1, 2 and 3 to two years imprisonment and to five years imprisonment on each of Counts 4, 5, 6 and 7.  All terms of imprisonment are to be served concurrently.  Three days pre-sentence custody were declared deemed to be time already served.

8. The appellant filed a Notice of Appeal against conviction on all counts on 21 November 2011. 

Circumstances of the alleged offending

9. The appellant was born in April 1948. The complainant is his brother-in-law who was born in December 1958. His elder sister is married to the appellant. The complainant first met the appellant in 1969 or 1970 when he was dating the complainant’s sister.^[2]  The appellant and his sister married in April 1971.  To that point she and the complainant had lived at home with their parents in Fortitude Valley. 

10. Upon marriage, the appellant and his wife lived for three months in a house in W Road, East Brisbane before moving into a duplex house in E Street, East Brisbane which the appellant owned.  The complainant, then at high school, resided with them for two to three months (June to August) in 1973 when his parents were travelling overseas.  In about July 1975, they and their three month old daughter moved to a house in H Street, East Brisbane which the appellant also owned.

11. The appellant started work in the painting trade when he was 14 years old. He worked for a firm in which his future father-in-law was a partner. It was via this connection that the appellant met his future wife and her complainant brother. By the time he was 18 years old, the appellant was a foreman and was given a Holden utility to travel from job to job.

12. At trial, the complainant gave evidence with respect to each count which may be summarised as follows:

Count 1: at some time before the marriage, the appellant took the complainant for a drive to his employer’s house in the Fairfield or Yeronga area.^[3]  On the drive, the appellant stopped in bushland and lent over the complainant, rubbing his hands on the front of the complainant’s shorts in the area of his penis.  The appellant then put his hand inside the complainant’s shorts and touched him directly on the penis for not more than five minutes.^[4]  The appellant told the complainant that he would kill him if he told anyone.^[5]

Count 2: on another occasion before the marriage, the complainant was travelling with the appellant in the utility to a house that was under construction and which the appellant was painting.^[6]  While inside the house, the appellant touched the complainant on the shorts near his genitals and then also exposed his own penis and masturbated.^[7]  Again, he threatened to kill the complainant if he told anyone.^[8]

Count 3: after the marriage and not long after the appellant and his wife had moved to the E Street house, the complainant paid them a visit.  In the lounge room, the appellant touched him on the outside of his clothing then masturbated himself and the complainant.^[9]  The complainant was about 12 years old.  He ejaculated.  This was the first time that the accused had made him do so.^[10]

Count 4: the next occasion when the appellant interfered with the complainant at the E Street house also occurred in the lounge room.  The appellant touched the complainant on the shorts, then had the complainant masturbate him.  The appellant pushed the complainant to the floor, spat on the end of his [the appellant’s] penis and penetrated the complainant’s anus with his penis.^[11]

Count 5: in the lounge room of the house at H Street, the appellant rubbed the complainant’s genitals on the outside of his shorts and then had the complainant masturbate him.  After the appellant ejaculated, he pushed the complainant down and sodomised him, this time ejaculating in the complainant’s anal passage.  The complainant was about 16 years of age.^[12]

Count 6: on another occasion at the house in H Street, the appellant sodomised the complainant and then wanted the complainant to take the appellant’s penis into his mouth.  The complainant refused and the appellant masturbated himself to ejaculation.  The complainant was about 17 years of age by this time.^[13]

Count 7: on yet another occasion at the H Street house, the appellant wanted the complainant to sodomise him but the complainant refused.  The appellant then pushed the complainant down and sodomised him.^[14]

13. As well as the seven particularised offences, the complainant gave evidence of uncharged sexual offences committed by the appellant. The offending followed the same pattern as the particularised offences, escalating from touching to masturbation to sodomy and included forced oral sex.^[15]

14. The complainant testified that sexual contact with the appellant ceased in 1977.^[16]

Subsequent history

15. A number of later events, of which evidence was given, assumed a prominence in the trial. They concerned subsequent contact between the complainant and the appellant, the complainant’s preliminary complaint, and a confrontation in 1997.

16. As to contact, the complainant conceded that he went on camping trips with the appellant’s family on occasions between 1977 and 1994.^[17]  Further, during that period, the complainant invited the appellant to go on a three to four day hunting trip with other people.^[18]  As well, from time to time during 1995, the complainant’s three young sons, then aged about 12, eight and two years, were babysat at the appellant’s residence.  The complainant would pick the boys up and engage in conversation with the appellant and his wife at that time.^[19]

17. The first person to whom the complainant reported the appellant’s alleged sexual misconduct was his wife in 1994, at the time of their youngest son’s christening.^[20]  His complaint was in “general terms”.  The complainant shortly thereafter informed his other sister (not the appellant’s wife) of the appellant’s alleged sexual misconduct but did not “go into details or specifics”.^[21]

18. In 1997, the complainant confronted the appellant in the presence of the appellant’s wife, about the alleged sexual misconduct.^[22]  The complainant testified that he asked the appellant, “Why did you rape me?  Why did you do what you did?”  According to the complainant, the appellant did not respond.  He said that the conversation lasted only a matter of minutes: “five, 10 minutes at the absolute most.”^[23]  The complainant cut off contact altogether with the appellant after this confrontation.^[24]

19. The complainant first brought his allegations to the police in June 2008.^[25]

20. At trial, the prosecution witnesses included the complainant, his wife and both of the complainant’s sisters. The appellant gave evidence on his own behalf. He denied having committed the conduct alleged against him in each of the counts.

Grounds of appeal

21. The appellant’s grounds of appeal as stated in the Notice of Appeal and amended in accordance with leave granted at the hearing, are as follows:

“1.The verdicts are unsafe and unsatisfactory according to law.

2. The learned trial judge erred in failing to exclude evidence of the pretext call because of its disproportionately prejudicial effect and/or because it was unfair to admit it against the appellant.
3. Having allowed the recording into evidence, the learned trial judge failed to adequately instruct the jury as to how the jury could use the recording.
4. The learned trial judge failed to adequately warn and direct the jury:-

a.It would be dangerous to convict where the admission relied on by the Crown was subject to interpretation consistent with the Defence case.

b.There was an absence of clear evidence upon which the jury could rely to interpret the statements of the appellant in the recording which were said to amount to an admission.

c.That where the evidence relied on by the Crown to interpret the statements of the appellant in the recording, was a single allegation lacking in particularity predating the recording containing the alleged admission by some 11 years, the jury should have:-

i.afforded a significantly greater degree of care in its interpretation of the appellant’s words before being satisfied that such words amounted to an admission to the specific counts on the indictment; and

ii.satisfied itself that there were no other reasonable interpretations of the appellant’s words open on the evidence after the passing of such a significant period of time.

d.That it would be dangerous to convict the appellant in reliance on the recording as an admission, where the said admission was potentially taken out of context by virtue of the lengthy passage of time between the making of it and words said to characterise it, where such words were derived not from the appellant’s words or conduct alone, but from non-specific uncorroborated allegations put to the appellant by the complainant 11 years earlier.

5. A directed verdict of not guilty should have been entered in respect of Count 4.”^[26]

22. The recording referred to in Grounds 3 and 4 is a recording of the pretext call referred to in Ground 2. As is perhaps obvious, Ground 4 is a particularisation of Ground 3. In both written and oral submissions, these two grounds were dealt with as the one composite ground.

23. Ground 1 requires this Court to make its own independent assessment of the evidence for the purpose of determining whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdicts to stand.^[27]  The outcome of Ground 2 has an influence on the scope of evidence which must be considered under Ground 1.  Ground 2 and the associated composite ground ought therefore be considered first.

Ground 2 – admissibility of pretext call

24. The learned trial judge determined upon a voir dire to admit into evidence a recording of a telephone call made by the complainant under the supervision of Detective Sergeant Dunn of the Child and Sexual Assault Investigation Unit of the Queensland Police Service. The call was made from the complainant’s residence to the landline at the appellant’s residence. It took place between 6.30 pm and 6.36 pm on Wednesday 5 November 2008.  The recording was tendered.^[28] This Court was provided with a transcript^[29] and had the benefit of listening to the recording.

25. The appellant’s wife answered the telephone. The complainant asked to speak to the appellant and, excluding formalities, the following conversation took place:

“COMPLAINANT:Listen mate I, I’ve been thinking mate I want to, I want to see if there’s any way that we can sort this out mate because I mean shit I’ve been wanting to talk to my sister and I’m nearly fifty and I’m sort of thinking well you know what’s happened is –

APPELLANT:What happened [complainant’s name], whatever happened it’s happened.  If you are ready to make up with us, it’s no big drama.  Just hello, how are you, and it’s over.  We don’t have to bring the past and end of story.

COMPLAINANT:Yeah but –

APPELLANT:Like you said, our life is too short to, to not talk to each other.

COMPLAINANT:I know what I, what I want to know [appellant’s name] is why you did what you did to me because I mean I was just a kid for crying out loud you know and it’s –

APPELLANT:[complainant’s name]

COMPLAINANT:It’s stuffed my life up a lot.

APPELLANT:It’s no good talking about this.

COMPLAINANT:Hey?

APPELLANT:It’s no good talking about on the phone.

COMPLAINANT:Well.

APPELLANT:I’ll uh, I’ll meet you at anywhere you want, I’ll meet you and we’ll talk about it and that will be the end of it.

COMPLAINANT:Well I want to be able to talk to you before I go ahead and talk to [appellant’s wife’s name] and all the rest of it, I just want to know that mate it’s, it’s finished, what’s happened you know like why you did these things to me you know.

APPELLANT:Okay.  Uh –

COMPLAINANT:So.

APPELLANT:Where can we meet?

COMPLAINANT:Well I’m at home now and mate I, I’m here with [complainant’s son’s name] and what I’m just thinking is mate I, I just want to talk to you and find out why you know why is there a reason that you can’t talk to me about this over the phone?

APPELLANT:No I won’t talk to you over the phone.  It’s face to face mate.

COMPLAINANT:It’s face to face?  Alright well mate.

APPELLANT:Name a place, a place where you want to meet me, I’ll meet you, we talk about it.

COMPLAINANT:No but I want to talk to you now.  Right and you know I mean I’ve got my kids here, I don’t need my kids knowing what’s going on and I’m not going to meet you somewhere straight out.  You know, why did you do it [appellant’s name]?  Can you tell me?

APPELLANT:[Complainant’s name].

COMPLAINANT:What?

APPELLANT:[INDISTINCT]^[30] you want to talk to me, I’m not prepared to talk to you over the phone.  Let’s, let’s see each other okay and stop bringing the past into our life.

COMPLAINANT:Mate the past is what’s happened it’s in our lives.

APPELLANT:Okay.

COMPLAINANT:You know it’s not a case of bringing it into our lives mate, it’s been part of my life since I was a kid.

APPELLANT:Okay then it’s time for you to pass that, let’s talk about it.

COMPLAINANT:No mate.

APPELLANT:I can not talk to you tonight so let’s make a date, a, a time and let’s talk about it if you aren’t happy.  You call the date, the hour and where you want to meet me.

COMPLAINANT:Let me have a think about it.  Okay.  Alright let me think about it okay as to when.

APPELLANT:[Complainant’s name] the only thing I can say to you, the only thing I can say to you, you and your sister, we always together.  Okay.  What’s, everything’s okay with us so let’s, let’s make the end of it.

COMPLAINANT:It’s easy for you to say it was all okay, it wasn’t okay [appellant’s name].

APPELLANT:Well okay it’s not okay but it, it’s happened, it’s finished [complainant’s name].

UNIDENTIFIED FEMALE SPEAKER [appellant’s wife’s name]: If he wants to rehash everything well fine we’ve gone over that.

APPELLANT:Your sister just saying we don’t want to go back and rehash everything that happened why this and why that.  If, if you want to talk to me tell me what I have to do to talk to you but I’m not going to talk to you over the phone.

COMPLAINANT:ALRIGHT.  Let me think about it I’ll get back to you okay.

APPELLANT:Okay.”

26. Adopting submissions of the prosecutor, the learned trial judge held that responses made by the appellant during this telephone call were capable of being construed by the jury as admissions of generalised sexual abuse of the complainant and was admissible on that basis^[31].  Her Honour was not satisfied that it would be unfair to admit the evidence.^[32]

27. On appeal, the appellant’s primary submission is that his statements in the telephone call were equivocal to a point that they could not be construed as admissions of anything. In advancing this submission, the appellant placed reliance upon the following matters:

1. the complainant made no reference to any specific instance of sexual abuse during the telephone call;

2. consequently, nothing that the appellant said could be taken as being an unequivocal admission of such abuse on his part; and

3. moreover, in referring to something he wanted “to sort out”, the complainant was apt to be understood by the appellant to be referring to the absence of contact between the two families over the years, and more specifically, to regret on his part that he had precipitated the rift by the allegation of rape he made in 1997.

28. To these matters may be added that during the telephone call, the complainant appeared to be nervous. The appellant was not defensive. He was rather forthright in his insistence that the two have their talk other than then and there, over the telephone.

29. Notwithstanding these matters, the historical context in which the telephone call occurred, a significant feature of which was the allegation made in 1997, does lend to a construction of it as one in which the complainant, when referring to what was done to him when he “was just a kid for crying out loud” and that “it wasn’t okay”, was renewing his assertion that the appellant had sexually abused him and that the appellant’s response that “Well, okay, it’s not okay, but it’s happened” was open to a construction that he was conceding that such abuse had occurred. It was therefore open to the jury to construe the telephone conversation as an admission by the appellant that he had engaged in sexually abusive behaviour towards the complainant as a youth. An admission of that kind, whilst not an admission of the charged acts, was capable of being regarded by the jury as supportive of the complainant’s evidence of the charged acts.^[33]  On that basis, the evidence was admissible.

30. It need be acknowledged that, of course, that is not the only interpretation that the jury might have placed on the telephone call. As discussed later, it was also open to an interpretation which did not implicate the appellant. However, the possibility of an innocent explanation did not deprive the evidence of its relevance.^[34]

31. The appellant also submitted that the probative value of the evidence was slight and was outweighed by its prejudice to him. Whilst, in submissions, the appellant’s counsel sought to isolate the discretion that balances the probative value of evidence against its prejudice from the broad discretion to exclude evidence on the ground of unfairness, in developing the argument, he identified the prejudice to the appellant as manifested by the equivocality of the evidence itself. In substance, the submission on appeal was that because of its equivocality, it was unfair to have admitted the telephone call. Unreliability of evidence, it is said, is a touchstone of unfairness, but not the sole touchstone.^[35]

32. It is evident from the record that her Honour understood the submission for the appellant on the voir dire to be that the prejudice and the equivocal nature of the evidence as an admission outweighed its probative value and thus it would be unfair to admit it.^[36]  She took account of aspects of the evidence which, the appellant submitted, characterised it as equivocal and declined to exercise the discretion to exclude it.  Quite possibly, another judge may have been influenced by those matters to exclude it; however, that is not the test for legal error in the exercise of a discretion.  In summary, the appellant has failed to identify any error of the kinds described in House v The King^[37] as having infected the exercise of the discretion against exclusion.

33. For these reasons, the appellant has not demonstrated that the learned trial judge erred in admitting the telephone conversation into evidence and this ground therefore cannot succeed.

Grounds 3 and 4 – adequacy of directions with respect to the pretext call

34. The recording was played twice to the jury; first, during the complainant’s evidence-in-chief,^[38] and again during the cross-examination of the appellant.^[39]  The jury was provided with copies of the transcript to assist them during the cross-examination.^[40]

35. The appellant testified that when the complainant said to him, in the presence of his wife, that he had raped the complainant, he was stunned. He denied that that was true and told the complainant to leave the house.^[41]  He said that he saw the complainant only once after that prior to the pretext call.  It was several years later at a social club.  They sat together and talked for at least 20 minutes.  The family falling-out was not discussed.^[42]

36. In evidence-in-chief, the appellant said that he agreed to speak to the complainant over the telephone because he wanted to find out what “his story was” and that he wished the families to “make up”. He was suspicious of the complainant and wanted any talking between them to be face to face.^[43]

37. The appellant was cross-examined in detail about the telephone call. It was put to him on several occasions that he must have understood the complainant to have been referring to the rape allegation. Specifically, he was asked about his response that “it is not okay, but it’s happened”. The course of questioning and the responses the appellant gave are reflected in the following passage from the evidence:

“Right. Well, we’ll just go down a little bit further when, at about page 4, line 20, you say: ‘What part do you not understand?  You want to talk to me.  I’m not prepared to talk to you over the phone. Let’s – let’s see each other, okay, and stop bringing the past into our life.’  [The complainant] says, ‘Mate, the past is what’s happened.  It’s in our lives.’  You say: ‘Okay.’  [The complainant] says: ‘You know, it’s not a case of bringing it into our lives, mate, it’s been part of my life since I was a kid.’  And you then reply: ‘Okay, then, it’s time for you to pass that.  Let’s talk about it.’  By that stage, this is the second time that he’s mentioned to you about the past and things happening to him by you when he was a kid.  Can I just ask the question then: by that stage, had the penny dropped in your mind, ‘Well, he must be talking about the rape allegation.?’--  No, it didn’t.  As far as I concern (sic), again, I was under the impression that he want to make up with us with the things that he said about me.

Okay.  Well, a little while later then - this is at page 4 about line 45 - you volunteer this: ‘[The complainant’s name], the only thing I can say to you - the only thing I can say to you you and your sisters, we always together, okay.  What’s – everything’s okay with us, so let’s – let’s make the end of it.’  And [the complainant] said: ‘It’s easy for you to say it was all okay.  It wasn’t okay, [the appellant’s name].’  And you respond: ‘Well, okay, it’s not okay, but it’s happened.  It’s finished, [the complainant’s name].’  By that stage it must have dropped that he’s talking about the fact that you raped him and it wasn’t okay; that’s what you would have understood he’s talking about?-- No, that’s the way you understood.  The way I understood, that he was still trying to make up with me, okay, because as far as I know, he accuse me of those things and I was asking him to get together and talk about it, not that I agree what he was saying.  I was just trying to listen to him because if you listen to his voice, he was really upset, wasn’t he, on the phone?

Your response is: ‘Well, it’s okay, it’s not okay, but it’s happened.  It’s finished, [the complainant’s name]?’-- Yes, the accuse (sic) – of what I said - what he said to me, that’s the way I was taking it.

[The appellant], you knew full well, didn’t you, that he was talking about the claim that you had raped him as a child; you knew full well that’s what he was talking about?--  That’s your say so.  Again, I’m telling you that [the complainant] accuse me of those things and we did not talk to [the complainant] for long time and when he talk to me on the phone, I was trying to listen to him to make some sense out of that, okay, and if I say okay or not okay, that doesn’t mean I accept what he accuse me of.

Now, on three separate occasions you insisted you didn’t want to speak on the phone with him; correct?-- Yes.

Can you assist us why - why, if you thought he wanted to make amends with all of this, why didn’t you just want to - and he was seeking forgiveness, essentially; is that what you thought?—That’s the way I was taking it, yeah.”^[44] 

38. This composite ground of appeal concerns the adequacy of the directions given with respect to use of the telephone call by the jury. Her Honour’s directions were in the following terms:

“However, the prosecution in this case does argue that in addition to [the complainant’s] evidence you do have evidence of [the appellant] making an admission during that taped telephone conversation in November 2008.  Now, it’s a matter for you as to what you make of what [the appellant] says in that telephone call.  He doesn’t dispute what he says there.  You’ve got the transcript of that telephone call, but I would urge you not to rely wholly and solely on the transcript.  That’s just been given to you to aid you to follow the conversation.  It’s the tape itself which is the evidence.  You will have that in the jury room and feel free to listen to that because obviously the bare words on a sheet of paper don’t convey the full meaning of what people are saying.  It is important to listen to the way it is said and the tone of their voice and that sort of thing.

Before you can use the evidence of what [the appellant] said to [the complainant] during that telephone conversation you need to consider whether he was, in fact, making any admission to the alleged offending and whether if he was making admissions they were truthful and accurate.

The prosecution in this regard argues that the context of that telephone call is that there had been essentially an estrangement between [the appellant] and [the appellant’s wife] and [the complainant] and his family since 1997 when the first confrontation took place, so some 11 years earlier.  That’s when [the complainant] went around to their home, I think it was the Belmont home, and made the allegation that he had been raped as a child.  He was asked to leave then.  The prosecution argues that following that confrontation there is little evidence of them having any contact at all.  There is certainly no evidence of any other cause for the falling out between the two families and in those circumstances it was clear to [the appellant] when he was speaking to [the complainant] on the phone that that’s what [the complainant] was referring to when he talked about wanting to know why he did things he did to him as a child and [the appellant] does not deny those allegations.  In fact, he is evasive and then he does make the statement, ‘Well, it’s happened.’

On the other hand, the defence argues that when the allegations were made face-to-face back in 1997 [the appellant] did not make any admissions at that stage.  He was in shock and he essentially threw [the complainant] out of the house.  There was subsequent contact particularly that time at the [social club] where they had more than the passing of time of day together.  They had a sit down at the table conversation together.  11 years later when that phone call was made, [the appellant] believed that [the complainant] was talking about the rift between them, between the families, and wanting to mend the relationship, given that he was almost 50, not able to talk to his sister any longer and that he was not referring to the offending.

The defence argues that despite what the detective said to [the complainant] in terms of making the phone call, [the complainant] was not specific about making the allegation to [the appellant] and that it was difficult obviously for [the appellant] therefore to know what he was talking about and that’s borne out by what he says during the conversation.

Now, it is up to you to decide whether anything that [the appellant] said during that telephone conversation does amount to an admission of committing the offences and whether or not those admissions are true.  If you are not so satisfied, then obviously you can’t rely upon anything he said in that telephone call as going to proof of his guilt.  If you find that you cannot rely on anything he said in that telephone call on the 5th of November 2008 as an admission that he sexually abused [the complainant], then the only evidence you have before you regarding the offending is that of [the complainant] himself and as I have repeatedly said, and I do need to keep repeating this, you can only then convict [the appellant] of a particular charge if you are satisfied beyond reasonable doubt that [the complainant’s] evidence was both truthful and accurate and that you can accept his evidence despite the warnings I have given you about the aspects of this case.”^[45]

39. The appellant takes issue with these directions in two respects. First, a criticism is made that they presented to the jury its task as being one of deciding whether anything in the telephone conversation amounted to an admission of the charged acts.^[46]  As noted, nothing in the conversation could have amounted to that.  Indeed, the evidence was sought to be admitted, and admitted, only as evidence of generalised sexual abuse of the complainant, and not of the charged acts.  That was the only finding of admission open to the jury; yet the directions did not make that clear.  This criticism is a valid one.

40. Secondly, the jury was not instructed adequately as to the standard of proof to which it needed to be satisfied in order to find that the appellant was admitting to generalised sexual abuse of the complainant. Consistently with a majority of opinion in HML,^[47] the applicable standard of proof is beyond reasonable doubt.

41. No such direction was given in those terms or terms to similar effect. In particular, it was not brought to the jury’s mind that in order to find a relevant admission to generalised sexual abuse of the complainant, they needed to have been satisfied beyond reasonable doubt that the appellant’s evidence that he understood the complainant’s purpose in making the telephone call was to try to make up for the accusation he had made in 1997, was false.

42. The lack of reference to specific conduct by the complainant, the nature of the admission which, at best for the prosecution, it was capable of sustaining, the appellant’s evidence as to the understanding of the telephone call, the applicable standard of proof for finding an admission, and the use to which such an admission, if found to have been made, could be put together, required very careful and clear directions with respect to the pretext call. The requirement was heightened by the additional circumstance that the jury may have held some doubt as to the complainant’s own account of the offending but accepted an admission it found to have been made as reassurance that the prosecution evidence overall established the appellant’s guilt beyond reasonable doubt.

43. The appellant has accurately identified two significant respects in which the directions given fell short of what was required. Counsel at the trial did not seek any re-direction; nevertheless, a miscarriage of justice has occurred in the failure to give proper directions to the jury as to how it should approach the pretext call evidence. This is not a case for the application of the proviso. This combined ground of appeal must succeed. In consequence, the convictions must be set aside.^[48]

Ground 1 – verdicts unsafe and unsatisfactory

44. The appellant has relied on aspects of delay in making the complaint, inconsistency in evidence of the prosecution witnesses and improbability as together rendering the verdicts of guilty unsafe and unsatisfactory. It is appropriate to review the evidence at trial with particular regard to these aspects.

45. Delay: The earliest complaint that the complainant made about the appellant was about 17 years after the last offending was said to have occurred.  No motive was sought to be attributed to the complainant in making the complaint at that time, or, much later, to the police.  The jury was entitled to regard the delay in making a first complaint as explicable by a desire on the complainant’s part to maintain family relationships, and in making the complaint to police as explicable by the break down in relationships which he had precipitated by the 1997 allegation.

46. The trial occurred almost 40 years after the first offending was alleged to have taken place. The evidence did not suggest that the complainant, as a boy of 12 to 17 years, was then of an age that he was not capable of understanding the nature of the acts that he said took place or that his memory of them was unreliable.

47. Inconsistency:  In a number of respects, the complainant’s evidence was inconsistent with that of his sister, the appellant’s wife.  He said that he was travelling in a vehicle alone with the appellant when Counts 1 and 2 occurred.  She said that their father was very strict and would not allow his children to go out with non-family members.  She did not know of any occasion when, as a young boy, the complainant went off alone with the appellant.^[49]

48. Next, she testified that when the complainant was living at the E Street house while their parents were overseas, there was never an opportunity for the complainant to be alone with the appellant.^[50]  Each time the complainant visited that residence, it was in the company of his parents.^[51]  Thirdly, the complainant alleged that Count 2 occurred when the appellant was wearing work shorts.  His wife testified that he always wore overalls to work.^[52]

49. These inconsistencies were the subject of cross-examination and addresses. The jury may have had a reluctance to accept vehement assertions from the appellant’s wife that her brother never travelled with the appellant, was never alone with him at the E Street house, and always wore overalls to work.

50. One other matter of alleged inconsistency arises from the complainant’s evidence concerning the date when the first act of sodomy occurred. That matter is considered further in the context of Ground 5.

51. Improbability: The appellant has advanced a catalogue of circumstances in the prosecution case which, it is said, are improbable to a point of casting serious doubt over the case as a whole.  It was submitted that the complainant’s account of serial offending was implausible because of the following improbabilities; namely

1. that he would have allowed his own sons, as young boys, to have been babysat by his sister and the appellant;

2. that he would have gone on camping trips with the appellant or invited him to go on a hunting trip;

3. that offending allegedly took place underneath the house at E Street where it might have been viewed by neighbours or passersby; and

4. with respect to Count 5, that the appellant ejaculated twice in quick succession.

52. Some of these matters were put to the complainant. He said that he believed that his sister was always present when the boys were being babysat,^[53] and that during the camping trips, he would keep his distance from the appellant.^[54]  To his recollection, there were trees in the backyard of the E Street property which obscured view of the underneath of the house.^[55]

53. It was a matter for the jury whether it accepted these explanations. Whether they did so fully or not, none of these circumstances is of such an order of improbability that it would found an inference that it was not possible that the appellant had committed the charged offences and therefore the complainant’s evidence of the offending conduct ought to be rejected. It may well be that these circumstances would cause a jury to have some doubt as to the complainant’s own account of the offending. However, as already noted it would be open to the jury to regard the doubt as dispelled by a finding that the appellant had admitted to generalised sexual abuse of the complainant.

54. In summary, the evidence of the complainant, if accepted by the jury, was a sufficient basis for findings of guilt on each count. Further, it was open to a properly directed jury to find in the pretext call an admission of generalised sexual abuse, a finding which, if made, would bolster the evidentiary basis for findings of guilt.  Notwithstanding the matters of delay, inconsistency and improbability to which the appellant has referred, the verdicts are not ones which, in my view, it would be dangerous to allow to stand in all the circumstances.  This ground of appeal cannot succeed.

Ground 5: directed verdict of acquittal on Count 4

55. Count 4 was particularised in the indictment as having occurred between 17 June and 11 August 1973. In the Schedule of Particulars, it was described as the “first act of anal penetration”, and as having occurred at the E Street house when the complainant’s parents were overseas.^[56]  In his evidence-in-chief, the complainant testified to an act of anal penetration of him by the appellant “probably about mid-71”^[57] at E Street.  In cross-examination, the complainant conceded that until he gave evidence, he had said that the first such act occurred in 1973 during his parents absence overseas, adding that he “did recall that it happened prior to that as well”.^[58]

56. The appellant sought to advance an argument that, for that reason, this count should have been taken from the jury. However, a review of the transcript reveals that the complainant did give evidence, on which he was cross-examined, of an act of anal penetration by the appellant at the E Street house when his parents were overseas in 1973.^[59]  At its highest, the description of the act in 1973 as the first act of anal penetration was a misdescription.  There was evidence of an act of anal penetration having occurred at the time and location particularised for Count 4.  Accordingly, there was no good reason for taking this count from the jury.  This ground of appeal fails.

Disposition

57. As previewed in the discussion of the composite ground of appeal, the convictions must be set aside. Since Ground 4 has failed, the appropriate orders are for a retrial, rather than an acquittal, on all counts.

Orders

58. I would propose the following orders:

1. Appeal allowed.

2. Convictions set aside.

3. Retrial ordered on all counts.