R v PAS[2014] QCA 289

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted after a jury trial of three counts of rape, one count of deprivation of liberty and one count of aggravated indecent treatment.  He appealed his convictions on two grounds.  The first was that the trial judge wrongly directed the jury that a complaint made by the complainant to her aunt was capable of bolstering her credit.  The second concerned a contention that the trial judge’s conduct had distracted the jury during defence counsel’s closing address; it was said that her Honour’s refusal to discharge the jury when the matter was raised occasioned a miscarriage of justice.

The Crown case

[2] The complainant, B, was the daughter of the appellant’s de facto wife, with whom he had formed a relationship in 2003.  In June 2011, B took part in an interview with police in which she alleged that the appellant had committed a number of sexual assaults on her.  The first occurred in 2005, the year she turned eight; the appellant had come into her bedroom and touched her chest and the area of her vagina.  That allegation was not the subject of any charge.  In 2007, B said, the appellant had taken her to buy takeaway food.  On their return he had not stopped at her home but forced her to stay in his vehicle, grabbing her when she tried to get out and locking the door.  That allegation was the subject of count 1 on the indictment, deprivation of liberty, of which the appellant was found guilty.  Having pulled over in some bushland, he had played with her vagina, putting his hand inside it, before making her suck his penis.  The first of those allegations was the subject of count 2, a charge of rape, on which the appellant was convicted of the alternative charge of indecent treatment, while the second was the subject of count 4, also a rape charge, of which the appellant was convicted.

[3] The jury acquitted the appellant of count 3, an indecent treatment charge, which arose from B saying that before forcing her to perform fellatio the appellant had been “playing with himself”.  B said that the appellant’s next assault on her was to bend her over the dashboard and put his penis in her vagina.  That was the subject of count 5, rape, of which the appellant was convicted.  Count 6 concerned a further allegation of rape on the same occasion: B said that the appellant again put his penis in her mouth and forced her to suck it.  The appellant was found guilty of that count.

[4] The appellant was acquitted of the remaining count, of attempted rape.  It concerned a different occasion; B said that while they were playing a “truth or dare” game, the appellant had tried to make her suck his penis.  On B’s recollection when interviewed, the last of the relevant incidents involving the appellant occurred a couple of days after the series of assaults in the vehicle.  The appellant had come into her bedroom, hidden under her bed and touched her arm.  When B screamed and attracted her mother’s attention, he pretended to be looking for a mouse.

[5] B gave evidence at a pre-recorded hearing and was cross-examined at some length on her account.  She agreed that in 2008, as a result of a complaint made by her father, with whom she was then living, she was spoken to by police in Melbourne and informed them that the appellant had “sexually abused us”.  She said she had told the interviewing officers that on one occasion, the appellant had got into her bed and “sexually harassed” her, and on another, had hidden under her bed and tickled her arm, explaining when her mother came in that he thought he had seen a rat under the bed.  Those were the only two matters that she raised with the Melbourne police.

[6] In 2011, B said, she had revealed to her mother that on the night the appellant had taken her to get takeaway food, he had raped her.  B’s mother gave evidence, however, that her daughter had not talked to her about what had happened to her.  On the other hand, although B gave no evidence of having told her sister of any of the events, the sister said that in January 2011, B had given her a detailed account of sexual assaults on the evening of the takeaway excursion; although according to the sister, B said the appellant had committed anal, not vaginal, rape on her.

The complaint to B’s aunt

[7] In the 2011 interview, B said that she had told her Aunt Maria about the (uncharged) incident in which the appellant touched her chest and vaginal areas.  She had confided in her aunt after the occasion on which the appellant pretended to be looking for a mouse under her bed.  She was staying with her because the appellant was hospitalised; he had had an accident, receiving an electric shock.  Her aunt had told her to tell her mother, and she had done so, but her mother did not believe her.  At the pre-recording of her evidence, B reiterated that she had told her aunt about the touching incident on the occasion when she stayed with her.  Her aunt had asked her if the appellant had ever done anything to her, and she responded with a description of the incident.  This was some time after August 2006, but before the other assaults charged in the indictment had occurred.  A police officer gave evidence that the aunt had been spoken to and had refused to provide a statement.

[8] In his closing address, the appellant’s counsel pointed out that the claimed disclosure to the aunt, if it occurred after the mouse under the bed episode as B had said in her interview, also occurred after the occasion on which the appellant had taken B to buy takeaway and allegedly committed serious sexual assaults.  Yet, on B’s account, she had not disclosed those other episodes of misconduct when speaking to her aunt.  In addition, counsel submitted, her evidence on the point was unsupported because her aunt had not been called as a witness.

Preliminary complaint under statute

[9] Section 4A of the Criminal Law (Sexual Offences) Act 1978 renders admissible evidence of a “preliminary complaint”, which is, by definition, a complaint made before the complainant’s first statement to police made in, or in anticipation of, a criminal proceeding.[1]  The section is in these terms:

“4AEvidence of complaint generally admissible

(1) This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.

(2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.”

The directions on B’s complaints

[10] In her summing up, the trial judge gave the following directions, which are the subject of the first of the appellant’s grounds of appeal:

“Now, you’ve heard counsel talk, in part, about the things that [B] said to other people outside of court.  I want to talk to you about that.  It’s sometimes called complaint evidence.  When considering whether [B] is a credible witness, you have to consider what she said to people before the interview with police in 2011, the CD that you’ve watched.  The evidence from [B] is that she spoke to her aunt in 2005 or 2006, and she spoke to her mother.  She said she spoke to her father and Melbourne police in 2008.  She also wrote some things down after counselling.  Counselling was around – she thought that was around 2009 and 2010.  But she didn’t tell anyone about the things on the indictment until 2011.  She said that she made a brief complaint to her mother before going to the police in 2011.  [B’s sister’s] evidence is that [B] told her at the beginning of 2011 – told her about the McDonald’s incident in January of 2011.

What [B] said before that police interview to other people has a limited purpose.  You may use it to assess [B]’s credibility.  But it is not evidence of what the accused actually did because the evidence of what he did to [B] comes from the recorded evidence of [B], those disks that you’ve watched.  What [B] said to other people outside of those recordings of second-hand information.  It’s hearsay and normally, as you’ve heard, hearsay is inadmissible in a court.  But consistency or inconsistency between [B]’s prior statements to the other people and her recorded evidence about the alleged offences is something that you can take into account when assessing her credit.  If you find that the versions have been consistent, that may bolster her credit.  Alternatively, if there’s substantial inconsistencies, that can undermine her credibility.  In each case it’s a matter for you what you make of those prior statements.

[B]’s own evidence is that she spoke to her Aunt Maria in – I think she said in – she originally told the police it was about 2005.  Two and a half years later when she was cross-examined, she said, more specifically, it was the night that the accused was electrocuted.  And there’s – I think [B]’s mother said that was around October 2006, but she couldn’t be sure.  There was a proposition put in cross-examination that it was in November 2006, but there was no evidence of that.  It seems accepted that the …electrocution was towards the end of 2006, October or maybe later.  This aunt was Aunt Maria, who was her [B]'s father’s sister – or aunt, I’m not sure which.  [B] said that her aunt had asked her that night if the accused had done anything to her and [B] said that she told her aunt about the time he came into the bed early in the morning, still in his work clothes, and touched her on the boobs and the vagina, and that was the first time that he did anything.  And she said that this was the only thing that he had done at that time, that she spoke to her aunt on the night of the – I can’t even say the word again – the electrocution.  It’s been a long day, I’m sure you’ll agree.  The offences – so [B]’s account is that the offences on the indictment happened later.  They happened after she had spoken to Aunt Maria.

[Defence counsel] criticised or sought to make some point out of the fact that the prosecution did not call Aunt Maria.  I think he also made a complaint that Jay had not been called, the friend Jay.  There is no basis on the evidence before us to identify that any – that Jay had any – Jay’s evidence would be admissible, for a start.  But in relation to the evidence of the aunt, I say this to you.  We have an adversarial system.  The trial is an adversarial process.  It is open to either side, defence or prosecution, to call a witness on a relevant matter.  The defence did not call Aunt Maria.  When [B] gave her account – when [B] was cross-examined she was not challenged about her claim that she talked to her aunt.  It was not disputed – put to her that she did not talk to her aunt, and you cannot now, on the state of the evidence, infer anything from the absence of Aunt Maria in the trial.”

[11] The trial judge went on to deal with B’s delay in making the rape allegations.  Her Honour concluded that part of her directions by saying:

“You cannot convict him of any offence unless you’re satisfied beyond reasonable doubt that [B] is both honest and reliable when she says that that incident – that act was done to her by the accused.  In assessing her evidence, you must take into account that [B] did not complain of these offences back in 2008 when the Melbourne police spoke to her.  When assessing her credibility, you must take into account that fact, along with her explanation for not speaking up at that time.  You must also take into account that if the specific allegations had been put to the accused at an earlier time, he may have had a better memory of events and he may have been better able to defend himself.”

Submissions on the appeal ground concerning the direction

[12] Counsel for the appellant pointed out that because B’s complaint to her aunt did not deal with conduct the subject of any charge, it was not preliminary complaint within s 4A of the Criminal Law (Sexual Offences) Act, and could not be used to support her credit.  The effect of the trial judge’s direction, however, was that if B’s evidence about the uncharged incident in which the appellant was said to have touched her chest and vaginal area was consistent with her account of her complaint to her aunt, that consistency was capable of supporting her credit.  Counsel submitted that it was irrelevant that there had been no request for a redirection on the point: the appellant relied not on the “miscarriage of justice” ground in s 668E of the Criminal Code but on the ground that the trial judge had wrongly decided a question of law by characterising B’s evidence as to her statement to her aunt as preliminary complaint.

[13] Counsel for the respondent submitted that the reference in the summing-up to what B said to her aunt was merely part of a review of the chronology of the statements B had made.  Defence counsel at trial had used B’s failures to complain of the charged offences when she was interviewed by the Victorian police and when she spoke to her aunt to undermine her credibility.  Neither the conversation with the aunt nor the dealings with the Victorian police could be categorised as preliminary complaint, but insofar as they were inconsistent with B’s other evidence, they were relevant to her credibility, and the trial judge was correct in pointing that out.  Her Honour had completed her review of B’s previous statements by warning the jury about the need to be satisfied that B was honest and reliable and reiterating the fact that they must take into account in assessing her evidence the fact that she did not make a complaint when the police in Melbourne spoke to her.

[14] If there were an error in the trial judge’s failure to distinguish between prior statements about uncharged acts which might establish inconsistency and preliminary complaint evidence which could be used to bolster credit, the proviso in s 668E(1)(A) of the Criminal Code should be applied: no substantial miscarriage of justice had resulted from it.  The trial judge had gone on to refer in some detail to what the defence had sought to make of the evidence about B’s complaint to her aunt.  It would have been clear to the jury that the real relevance of that evidence turned on the defence claim that it undermined B’s credibility.

Discussion

[15] There can be no doubt in this case that B’s complaint of the touching of her chest and vaginal areas was not “about the alleged commission of” any offence on which the appellant was being tried, so that s 4A had no application.[2]  Counsel for the respondent did not submit to the contrary.  Defence counsel at trial (who did not appear on the appeal) does not seem to have recognised that fact, and indeed suggested in submissions that the aunt should have been called to give evidence, notwithstanding that what she said could only have been hearsay not rendered admissible by any statutory exception.  Legitimately, though, he also raised an argument about B’s failure to complain to the aunt of the charged assaults, which, depending on what the jury made of the timing of events, might have had some potency.

[16] In the passage complained of, the trial judge did not, unfortunately, distinguish what was said to the aunt from other statements which plainly would constitute preliminary complaint.  Dealing collectively with statements some of which were preliminary complaint and some of which were not, her Honour directed the jury that consistency could bolster B’s credit.  There is a real risk that the jury may have regarded B’s descriptions of the uncharged touching incident in similar terms, when she recounted it and when she outlined what she had said to her aunt about it, as affording some support for her credit.  Her Honour’s further directions did deal with the defence position on the evidence relating to the aunt, but they did not improve matters.  In relation to the complaint that the prosecution had failed to call the aunt, instead of pointing out that the evidence would have been inadmissible as hearsay unrelated to any preliminary complaint, her Honour, perhaps overlooking the appellant’s right to silence, suggested that she could have been called by the defence.

[17] The trial judge’s treatment of B’s complaint to her aunt as capable of bolstering her credit entailed an error of law, although I am in some doubt that it can really be described as “the wrong decision of [a] question of law.”  But how the error is characterised does not matter, in these circumstances.  In a case so entirely dependent on B’s account, in which there were inconsistencies in B’s sequencing of events, and discrepancies as to what she had told police and her relatives and when, it is reasonably possible that the misdirection affected the verdict.  There was, in my view, a miscarriage of justice, and the proviso cannot be applied.  The appeal must be allowed on this ground.

The refusal to discharge the jury

[18] Because I have concluded that the appeal must be allowed on the first ground, I need not deal at any length with the second issue raised.  In the course of the summing up, defence counsel raised with the trial judge the fact that during his address, she had been seen to put her face in her hands and shake her head.  The trial judge accepted that she had made a gesture of the sort, putting her face in her hand for a few seconds.  It was, she said, a reaction of frustration, caused when defence counsel was addressing the jury on the failure of the Crown to call witnesses, one of whom was the aunt.  However, her Honour said, given her explanation in the summing-up about the defence submissions relating to the aunt, and her conventional direction to the jury that they were the judges of the facts and her views were irrelevant, there could be no unfairness requiring discharge of the jury.

[19] The episode was unfortunate; a trial judge should be vigilant not to convey to the jury any hint of a particular view of counsel’s performance; but in light of my conclusion as to the first ground, it is unnecessary to say more on the matter.

Orders

[20] I would allow the appeal, set aside the convictions and order a new trial.

[21] GOTTERSON JA:  I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.

[22] MULLINS J:  I agree with Holmes JA.