R v MCD[2014] QCA 326

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Gotterson JA's reasons for dismissing this appeal against conviction.

2. GOTTERSON JA:  On 8 August 2014 and at the conclusion of a trial in the District Court at Brisbane, the appellant, MCD, was convicted on three counts of unlawfully and indecently dealing with a child under 12 years of age.  Each count alleged an offence against s 210(1)(a) of the Criminal Code (Qld) for which the appellant was liable upon conviction to a maximum sentence of 20 years’ imprisonment: s 210(3).  The same female child was the complainant for each count.  Counts 1, 2 and 3 each alleged offending on a date unknown between 1 January 2009 and 31 December 2009 and Murrumba Downs.  The complainant was born on 5 October 2001.

3. Upon conviction, the appellant was sentenced on each count to imprisonment for 12 months, such sentence to be suspended after serving six months with an operational period of two years.  On 25 August 2014, the appellant filed a notice of appeal against the convictions.

Circumstances of the alleged offending

4. At the time of the alleged offences, the complainant lived with her mother, an auntie and others at a house at Murrumba Downs. Previously the appellant had been in a relationship with the complainant’s mother.  He would stay overnight at the house occasionally as he was a good friend of the partner of the complainant’s auntie.  The appellant and his friend would engage in drinking binges.  The complainant slept in the same bedroom as her cousin who was about three years older than she was.  The offending was alleged to have occurred on the one night.  According to the complainant, it was a night when the appellant was also sleeping in that bedroom.

5. The complainant gave an account to the police on 5 June 2013. It was an account of offending which had occurred a number of years earlier. She was 11 years old when she gave the account. She said that the appellant was sleeping on a double mattress in the bedroom. Early in the morning he came over to her bed, told her to move over and covered her mouth with his hand. She tried to push his hand away.

6. The complainant said that the appellant rubbed her breasts and touched her vagina (Count 1). Her cousin who was sleeping, turned and faced the other way, at which point the appellant “hopped up” from the bed.

7. He then returned and put his hand back on the complainant’s vagina (Count 2). He pulled down the boxer pants the complainant was wearing. Then he undid the zipper fly on his shorts, pulled out his penis and climbed on top of the complainant. She felt his penis rubbing her vagina (Count 3).

8. The complainant’s cousin awoke. The appellant placed his penis back in his pants and pulled up her boxer pants. The complainant said that she ran out of the room crying but came back into the room when her cousin asked where she was.

9. The complainant told police that she was probably seven years old when the offending occurred. She did not make a contemporaneous complaint about it. Some years later, in about May 2013 and when she was 11 years old, the complainant told a school friend that someone in the family had “raped” her. Next she told the school nurse. A complaint was made to the police shortly thereafter.

Evidence of the offending at trial

10. A video recording of the complainant’s interview with the police was played to the jury. The complainant’s testimony for trial was pre-recorded. The video recording of it was also played to the jury. The complainant’s evidence was uncorroborated. There were some inconsistencies between her statement to the police and what she said in the pre-recorded evidence concerning what she was wearing, whether she was crying when she made the preliminary complaint to her school friend and whether she ran out of the room crying.

11. The appellant did not give or call evidence at the trial. It was put to both the complainant and her cousin in cross-examination that the appellant was never alone in the bedroom with them. Both rejected that proposition. It was also put to the complainant that the appellant “never touched” her. She affirmed that he had.

The summing up

12. In the course of summing up to the jury, the learned trial judge made specific reference to the delay on the complainant’s part in reporting the alleged offending. His Honour said:

“There’s another matter when you’re considering the complainant’s evidence that you might have regard to and that is that there was a delay here in reporting the incident she says happened to her some four years before a complaint was made to firstly the nurse and then to the police.  The complainant’s evidence therefore cannot be tested in the same way or met by the defendant in the same way as if a complaint had been made immediately after the incident alleged and by reason of that, you might think the defendant’s lost an opportunity to test the evidence and to meet the allegations that would otherwise have been available to him.  The defendant has been denied the chance to soon after the incident assemble evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened.

Here, you heard evidence of an incident that is alleged to have occurred somewhere within the year of 2009.  Had the complaint been made known to the defendant soon after the alleged event then you’d think it might’ve been possible to explore the pertinent circumstances in detail and perhaps to gather and to look and to call at trial evidence throwing doubt on the complainant’s story and that some opportunity has been lost by way of that delay.  For example, you might remember that the other young woman, CA, in whose bedroom it’s alleged to have occurred, now says, well, I was 11 at the time and you know, I can’t remember whether I woke up or not.

So I simply say to you, scrutinise with great care the complainant’s testimony and don’t convict upon her testimony unless after scrutinising it with great care and considering all the circumstances relevant to its evaluation including that passage of time and paying heed to this warning: you’re satisfied beyond reasonable doubt as to its truth and accuracy.  As I said before, in this case, the Crown’s case wholly depends upon your assessment of the complainant and your assessment of her credibility and reliability.”^[1]

This part of the summing up is central to the sole ground of appeal.

The ground of appeal

13. At the hearing of the appeal, leave was granted to the appellant to amend the notice of appeal. In consequence, the following is the sole ground of appeal:

“The learned trial judge erred as follows:

The learned judge failed to give the full Longman direction, in particular the words “So I warn you that it would be dangerous to convict upon the complainant’s testimony alone”.

The appellant’s submissions

14. It is common ground that the three paragraphs from the summing up set out above constitute the Longman direction given by the learned trial judge.  The appellant does not take issue with the adequacy of the description by his Honour in the first two paragraphs of the disadvantage for the appellant in defending charges arising from the delay in making the complaint that gave rise to them.

15. The appellant’s complaint is focused upon the third paragraph. He submits that the direction given fell short of what is required of a Longman direction.  The shortcomings of which the appellant complains are that:

(i)the direction did not bear the imprint of the court’s own authority; and

(ii)it did not “warn” the jury that it would be “dangerous to convict” on the complainant’s evidence alone.^[2]

16. In support of his submission, the appellant drew upon the summary of the case-law concerning the Longman direction given by Applegarth J in R v MBX.^[3]  Particular emphasis was placed upon the following two paragraphs in the summary:

“2.… [T]he “Longman direction” is not a statute,^[4] and no particular form of words is required.  But authority requires it to be in the form of a warning.^[5]  The warning must be given the imprint of the Court’s own authority.

…

5. The jury is to be warned that it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, it is satisfied beyond reasonable doubt of its truth and accuracy.”

17. In oral argument, counsel for the appellant referred to two of the cases referenced by Applegarth J in paragraph two, R v WSP and R v C.  The appellant also referred to the decision of the New South Wales Court of Criminal Appeal in R v TJ.^[6]  The trial the subject of the appeal was conducted after the enactment of a statutory form of a Longman direction in New South Wales.^[7]  It was held by the Court of Criminal Appeal that as the offender was arrested before the enactment took effect, the common law exposition of the Longman direction had remained in force for the trial.  The following passages in the judgment of McClellan CJ at CL illustrate, it was said, the force of language needed to give a warning sufficient for a Longman direction:

“67In R v WSP, the trial judge told the jury that she was administering a warning.  However complaint was made that the direction that followed was not in substance a warning but was in the nature of a comment or caution: (at [177]).  This Court (at [183]) decided that despite purporting to give a warning, her Honour’s direction did not carry the strength of a warning and was accordingly insufficient.  It follows that even where the word “warning” is used the requirement that the direction carry the force of a warning is a stringent one.

68Resort to a dictionary indicates that in some circumstances the words “caution” and “warning” are synonymous.  However, when, to my mind a judge is providing directions to a jury about the necessary approach to assessing the evidence against an accused a “caution” delivered by the judge has significantly less force than a “warning”.  A caution as to a prospective danger is less diverting than a warning.  So much is plain from the language used on public signage and in many other areas of human discourse.”

18. The appellant submitted that the words used by his Honour “So I simply say to you …” were insufficiently forceful to give the jury to understand that they were being warned.  This Court ought not assume that they were said in a tone of voice which would have conveyed that understanding.

19. In WSP, Hulme J, with whom Sully J agreed, held that the extent of delay and the absence of corroborative evidence meant that in that case the jury should have been instructed in the form of words used in Longman, namely, “that it would be dangerous to convict”.^[8]  The appellant relied on that aspect of the decision in WSP for an additional proposition that those words needed to be used in order to give an effective Longman direction.

The respondent’s submissions

20. The respondent submitted that the summary given by Applegarth J in MBX was neither intended to be taken, nor to be taken, as prescriptive of the form of words to be used to give a Longman direction.  The use of the words “warning” and “dangerous to convict” is not essential in giving the direction.  The respondent referred first to the decision in Longman v The Queen^[9] itself.  In that case, there had been a delay of 20 years in making the complaint.  Brennan, Dawson and Toohey JJ described the direction that ought to have been given in that case in the following terms and context:

“The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.)), and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”^[10]  (Footnote omitted)

21. Their Honours had earlier made the following observation with respect to the warning concerning convicting on the uncorroborated evidence of a complainant:

“In practice, the warning given under the rule of practice varies from case to case.  There are no set words and the terms of the warning are adapted to the particular circumstances ...”^[11]

22. The respondent also referred to the formulation by the High Court in Robinson v The Queen^[12] of the warning that should have been given in that case in order to address a perceptible miscarriage of justice arising from numerous circumstances including delay in making the complaint.  What their Honours considered the jury should have been told was expressed in terms which do not include the words “danger to convict”.

23. The respondent submitted that there was nothing inherent in the risk of miscarriage of justice sought to be addressed by the Longman direction which necessitated the use of the words “dangerous to convict” in every instance.  Reliance was placed upon the following observations of McClellan CJ at CL in R v TJ:

“Decisions of this Court confirm that the particular words ‘dangerous to convict’ are not an essential requirement of the Longman direction: R v WSP, Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 at 95 [16] - [19] per Spigelman CJ, DPW v The Queen [2006] NSWCA 295; (2006) 164 A Crim R 583 at 589 [24] per Barr J, Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 at 145 [180] per Johnson J.  Whether those words ought to form part of the direction will depend upon the circumstances of the particular case: Sepulveda (at 145 [180]).  In some circumstances the use of the words ‘dangerous to convict’ may be undesirable.  A potential unintended consequence of the use of the ‘dangerous to convict’ formulation is that the jury may incorrectly understand those words to be in effect a direction to acquit: Robinson (at 95 [19]).”

Discussion

24. I accept the respondent’s submission that the summary in MBX is not prescriptive of the precise words to be used in giving a Longman direction.  Paragraph 2 in the summary acknowledges as much.  Further, the authorities to which the respondent refers, some of which were referenced by Applegarth J in the summary, indicate that use of the words “dangerous to convict” is not essential.^[13]

25. As to the word “warning”, the passages at [67] and [68] in the judgment of McClellan CJ at CL in TJ relied upon by the appellant, need to be seen in the light of the circumstances that, firstly, in WSP, Spigelman CJ was of the view that the direction given in that case was sufficient as a warning,^[14] and, secondly, that on this issue, McClellan CJ at CL was in dissent, the other members of the court being of the view that the direction given was sufficient as a warning to the jury notwithstanding that it was not expressly described as a warning.^[15]  Despite some differences between the authorities, I draw two related propositions from them.  One is that use of the words “warn” or “warning” are not essential.  The other is that the words actually used must convey to the jury a real sense of warning in what they are being told.

26. I now turn to consider whether the direction that was given had the shortcomings for which the appellant contends.

27. It is clear in my view that the words used by the learned trial judge in the third paragraph conveyed to the jury a real sense of warning. His Honour told them that they were to take great care with the complainant’s testimony; that they were not to convict upon her testimony unless after scrutinising it with great care and considering it against all the circumstances relevant to its evaluation including the passage of time, they were satisfied beyond reasonable doubt of its truth and accuracy. He used the strong-form imperatives “scrutinise” and “don’t convict”. Significantly, the learned trial judge directed the jury to approach their task in scrutinising the complainant’s testimony and considering all the relevant circumstances by “paying heed to this warning”. He used the very word “warning” to describe the direction he had given them, and he urged them to heed it.

28. In my view, the introductory words to paragraph 3, “So, I simply say to you …” did not diminish the strength of what the learned trial judge then said. The words “simply say” emphasized that the direction about to be given was uncomplicated, as, in fact, it was. They did not detract from the force of the direction given.

29. Furthermore, I am satisfied that the words used by his Honour adequately conveyed to the jury that it would be dangerous to convict the appellant unless upon carefully scrutinising the complainant’s testimony and considering all of the relevant circumstances, they were satisfied beyond reasonable doubt of the truth and accuracy of the testimony. The use of the negative imperative “don’t convict” unless so satisfied after undertaking the task they were directed to undertake, brought to the jury’s mind, in unambiguous and forceful terms, that they must not convict unless they were satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s testimony.

30. Lastly, I am also satisfied that in the language in which the direction was expressed, it bore the imprint of the court’s own authority. The words used were described by his Honour as a warning which was to be heeded. They were simple and direct words. The grammatical form of the imperative conveyed to the jury the clear connotation of authoritative direction by the trial judge.

31. For these reasons, I consider that this ground of appeal has not been established.

Disposition and order

32. The sole ground of appeal has failed. The appeal must be dismissed. I would propose the following order:

1. Appeal dismissed.

33. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.