R v SCL; ex parte Attorney-General
[2016] QCA 107
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- Unreported Judgment
- Appeal Determined (QCA)
- R v SCL; ex parte Attorney-General[2016] QCA 107
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R v SCL; ex parte Attorney-General[2016] QCA 107
Reported at [2017] 2 Qd R 401
R v SCL; ex parte Attorney-General[2016] QCA 107
Reported at [2017] 2 Qd R 401
SUPREME COURT OF QUEENSLAND
CITATION: | R v SCL; R v SCL; Ex parte Attorney-General (Qld) [2016] QCA 107 |
PARTIES: | In Appeal No 149 of 2015: R In Appeal No 167 of 2015: R |
FILE NO/S: | CA No 149 of 2015 CA No 167 of 2015 DC No 9 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal against Conviction Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Warwick – Date of Conviction & Sentence: 2 July 2015 |
DELIVERED ON: | 26 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 March 2016 |
JUDGES: | Gotterson and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of rape of a seven year old girl – where, at the time of the alleged rape, the appellant was in a relationship with the complainant’s mother – where, in his police interview, the appellant claimed that he had punched a man, P, because the complainant’s mother had told him P had touched the complainant – where the appellant also stated that the complainant’s mother had told him that, when he began his relationship with her, she was involved in court proceedings in relation to another man, W, who had also touched the complainant – where the appellant, when asked by police, denied that he had ever been alone with the complainant’s mother’s children nor slept in the same bed as the complainant – where, at trial, the complainant’s mother gave evidence that she had once found the appellant asleep in the complainant’s bed in the bedroom that she shared with her sister, S – where she also gave evidence that there had never been contact between the complainant and W and that there had been no touching of the complainant by P – where the prosecution adduced police evidence that no complaint had been made against W and P – where the prosecution alleged the inconsistencies between the appellant’s evidence and the evidence of the complainant’s mother and police records were suggestive of three lies told by the appellant indicative of his consciousness of guilt – where, in summing up, the learned trial judge identified four lies and directed the jury that they must be satisfied that an alleged lie revealed a knowledge of the offence in order to be probative of guilt, but suggested a line of reasoning not specifically explained by the prosecutor – where, after objection from defence counsel, the learned trial judge redirected the jury as to the third lie – where the appellant contends the trial judge erred in giving the direction on the alleged lies and that the direction was otherwise deficient – whether the misdirection and characterisation of the lies caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury of one count of rape of a seven year old girl – where the complainant was inconsistent in her evidence as to her age at the time of the alleged offence and whether she was wearing clothes and could not provide details of other alleged uncharged acts by the appellant – where, earlier in the day before complaining to police, the complainant had witnessed an acrimonious dispute between the appellant, the complainant’s mother and grandmother and the complainant’s younger step-sister, T – where medical evidence did not provide compelling proof of the alleged rape – where the appellant contended that, cumulatively, these factors indicated the verdict was unreasonable – whether the verdict was unreasonable or insupportable on the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to five years imprisonment for one count of rape – where the Attorney-General contended the sentence was manifestly inadequate having regard to the seriousness of penile rape and the appellant’s position of loco parentis – whether the sentence was manifestly inadequate Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Kondstandopoulos [1998] 4 VR 381, cited R v Lucas (Ruth) [1981] QB 720, cited |
COUNSEL: | J J Allen QC for the appellant/respondent M R Byrne QC, with D P Jones, for the respondent/appellant |
SOLICITORS: | Legal Aid Queensland for the appellant/respondent Director of Public Prosecutions (Queensland) for the respondent/appellant |
- GOTTERSON JA: I agree with the orders proposed by Philip McMurdo JA and with the reasons given by his Honour.
- MORRISON JA: I have read the reasons of Philip McMurdo JA and agree with the orders proposed.
- PHILIP McMURDO JA: On 2 July 2015, after a trial in the District Court, the appellant was convicted by a jury of the rape of a seven year old girl, whom I will call C. He was sentenced to a term of five years imprisonment. He appeals against his conviction upon a number of grounds. The Attorney‑General appeals against his sentence.
Background to the complaint
- The offence was alleged to have been committed in March or April 2014 at a house in Warwick occupied by the appellant, C’s mother, and two other girls. One of those girls, whom I will call S, was about a year younger than C. The other, whom I will call T, was about 18 months old. C and S were sisters, having the same father who had been married to their mother. T was the child of C’s mother and the appellant, who by this stage had been in a de facto relationship for about three years.
- That relationship ended at about the beginning of May 2014 and the appellant went to live elsewhere. The appellant and C’s mother then became involved in a dispute about the appellant’s access to T, which came to a head on the weekend of 26 and 27 July 2014. According to the evidence of C’s mother, on 26 July the appellant’s then girlfriend and his sister came to where she and the three girls were living and left with T. C’s mother complained to the police, who after some consideration of the circumstances, told her on 27 July that they were not going to take any action.
- On the following day, 28 July, C’s mother and her mother went to the house where the appellant was then living with his mother. C was with them. C’s mother said that she went there to take T back and that what followed was “a fight” and something of a physical struggle for the possession of T. This ended with the appellant’s mother taking her inside her house and C, her mother and her grandmother then departing.
- Just a few hours later, C’s grandmother went to the police, telling them that the appellant had raped C. According to the grandmother’s evidence, she had been told this by C who had said that it had happened many times, both at the house where the offence was alleged to have occurred and at other places where C had lived with her mother and the appellant. In her evidence‑in‑chief, the grandmother said C had told her this in “June 2014”. That timing was suggested by the prosecutor’s question. In cross‑examination the grandmother disagreed with the suggestion that she had been told these things by C only on 28 July, but said that “it would have been a few days before that”. There was no explanation for why the grandmother had not been to the police earlier or had not informed C’s mother about what C had revealed.
- By early in the afternoon of 28 July, the grandmother was with C at a police station speaking with the detectives who then investigated the complaint. On that afternoon C was interviewed and a video recording of that interview was played at the trial.
- Later that day, the appellant was brought by police to a police station where he was interviewed. A video recording of that interview was played at the trial. He denied any offending behaviour. As I will discuss, he made several statements in the course of that interview which, at the trial, the prosecution argued were lies which were explained by a consciousness of guilt, so that they corroborated C’s testimony. Most of the argument in this appeal was about whether this part of the prosecution case, and the way in which the jury was instructed by the judge about it, led to a miscarriage of justice.
The complainant’s evidence
- In her interview by police,[1] C was asked whether something had happened that had made her feel “not very safe”, which she answered by referring to the appellant and saying that he had “put his der in my privates”. She said that her “private” was what she used to “go to the toilet”. She used a similar reference to explain that the appellant’s “der” was his penis. She said that this had occurred at the Warwick house. The appellant had lived there with C’s mother and the girls for about four months in 2014 before the couple separated.
- The complainant said that this had occurred in her bedroom. C shared the bedroom with her sister S. But on C’s account, S was not present at the time of the offence. She said her mother had gone somewhere and was not in the house at the time.
- C said that the appellant came into her bedroom and pulled down his pants to his knees. She said that the appellant was then “on the bed” but also said that he was “on the floor” and that she was either on the floor or on the bed. When she was asked by a police officer “has that only happened one or more than one time?”, C answered “lots of times” and that it had always happened in her bedroom. She was asked whether she could remember “the last time that something happened?”, to which she answered “no”. She was then asked whether she could remember about a time “on the bed” and “what happened”, to which she answered “no”. She was then reminded that she had been recalling a time when the appellant “pulled down his pants and his knickers” and was asked what he had done after that, to which C responded “he put his…der in my private.” She said that this had hurt. She was asked whether she could remember what she was wearing when this was occurring and she said that she had her shirt on but not her pants, which the appellant had taken off her. He said that when this was over the appellant had told her “don’t tell mummy”. She said that she did not tell her mother but did tell her grandmother when she and her grandmother “were talking about people…touching people”.
- C said that she thought she was six years old when this incident occurred. In fact she was at least seven and a half years of age by the time the family, as it was, moved to the Warwick house.
- C gave pre-recorded evidence on 12 March 2015. She said that the appellant’s “der” looked like a “banana” and was “hard”. She said that a similar event or events had happened at a place where the family had lived before moving to the Warwick house.
- In cross‑examination she was asked about the timing of her disclosure to her grandmother and answered as follows:
“You see, you waited, didn’t you…to tell nanna about it, when mum and dad had separated, didn’t you?---Yes.
And it was only just after they had separated, wasn’t it?---Yes.
And mum was pretty angry with Michael?---Yes.
- - - because he took [T], your sister?---Yes.
And it was only after he took [T] and mum wanted [T] back that you told nanna about this?---Yes.
And that was only after you and mum had been together, wasn’t it?---Yes.
Did mum tell you to say all of this to get Michael in trouble?---Yes.
You see … I’m saying that none of this ever happened, and that you just made it up so that mum could get [T] back. That’s true, isn’t it?...---No.”
- In re‑examination there was this evidence:
“Before you went and made that movie with the police, did anybody tell you what you should tell the police? … [A]re you still thinking about your answer?---I don’t know.
You don’t know? What do you mean by, you don’t know? Did someone say something to you? Did someone say…when you speak to the police, you need to say that something happened?---Yes.
…Who was that?... ---I think it was nan.
Nan. What did nan say?---I need to tell the truth.”
She was also asked in re‑examination whether, when she was interviewed by police and said that the appellant had put his “der” in her “private”, that was the truth or a lie, to which she answered: “truth”.
The appellant’s police interview
- The interview began with one of the police officers recording that he intended to ask some questions concerning a complaint of rape. After the appellant was asked some more general questions (as to his age, occupation and background), one of the police officers said that he wanted to ask the appellant “about … matters of…rape, indecently dealing with children…or [a] child, particularly [C].” The appellant was asked whether he was aware of what police wanted to talk about and he said “yeah I’ve been told already”.
- He was then asked to “tell…everything you can about [C]”. The appellant responded by statements which referred to a former boyfriend of C’s mother, whom I will call W, and a man who had at one time been a friend of the appellant, whom I will call P. The appellant said:
“Well when I first got with [C’s mother]…she was going through court for [C] against [W] for touching [C]. And I was with her for about six months I think. And then [P], which was my mate at the time, touched [C] and I punched the shit out of him. Haven’t seen him since. And then, then I split up with [C’s mother], about five months ago, four months ago. And ever since I split up with [C’s mother] they’ve been just feeding me full of shit. Saying that I touched my step daughter. So…charged for all this shit I didn’t do”.
- Later during the interview there was this exchange:
“SGT JOYCE:Did you, were you ever in…[C’s] bedroom, or [C’s] bedroom alone with her?
APPELLANT:No, never went in there. No. I was always outside working on the car.”
Later still, the appellant was asked about living in the Warwick house and there was this exchange:
“SCON EVANS:Were you alone with the kids at all then?
APPELLANT:Nup. Nup. I was mainly staying at my sister’s house…
SGT JOYCE:Have you ever had a conversation with [C’s mother] about…you being in bed with [C]?
APPELLANT:Nup. Never.
SGT JOYCE:Have you ever … gone to sleep in a bed with [C]?
APPELLANT:Nup, not in the world.”
- Towards the end of the interview, the appellant was asked whether C had ever been given any reason to be afraid of him. He replied that the only time she would have been afraid of him was when she saw him “punch the shit out of my best mate”, which he then explained was his assault upon P. At that point at the interview, he described this incident:
“… [C’s mother] come in and told me that he touched her. And I was drunk. And a few of my … other mates were there too. And [C’s mother] was running around telling everyone that. And I asked him, and I said straight away, I said. Don’t lie to me. And then [C’s mother] kept whispering to me that he’s lying, he’s lying. So I asked [C’s mother] to take the kids inside, shut the door. And I think I punched him about eight or nine times. And then I turned around and [C’s] standing at the door crying, watching.”[2]
The appellant was then asked to explain again why he punched P and he answered:
“‘Cause [C’s mother]…kept on saying that [P] touched [C] and [P] touched my little cousin, or little family member…She kept coming out to about, there was about six or seven blokes including me drinking in the shed. She keep coming out whispering into my ear and I asked her once, I said. You don’t lie to me about this, man he’s going to get hit for it. And she keep coming out every ten minutes saying, she’s saying this, she’s saying this.
…
Just that [P]’s touching her.”
The appellant was then asked who P was, to which he responded:
“[T]he fellow that got out of jail not long ago, oh, a couple of years ago for paedophilia. I only just met, I met him through a mate of mine …”
- The appellant was then asked whether, if C was to say something, he would believe it, to which he answered:
“Nup. Not in the world. She lies twenty four seven. She just can’t tell the truth that kid. She’s, she’d stand there and lie to your face.”
He was then asked:
“Well, if that’s the case why would you take her word and go and punch, punch on with somebody?”
To which he answered:
“’Cause [C] wasn’t telling me, her mother was. And I trusted her mother.”
He was then asked why, if C was not to be believed, he would act on a story that C had given her mother, when there was this exchange:
“APPELLANT:I was drunk.
SGT JOYCE:To --
APPELLANT:I realised the next morning that I made a mistake, ‘cause [C] does lie. And I was drunk. I was drinking. She kept nagging the shit out of me, you know. Nine fellows in the shed playing cards, drinking. And some woman coming out telling me this every five minutes, ten minutes. It gets on a fellows nerves.
SGT JOYCE:So you decided you’d take matters into your own hands with this other fellow [P].
APPELLANT:Yeah.
SGT JOYCE:Have you ever done that on any other occasion?
APPELLANT:Nup.
SGT JOYCE:Has…[C’s mother] told you anything else that [C] said that you didn’t believe?
APPELLANT:Oh heaps of things that [C] used to tell her mum all the time that, I wasn’t there or I went to the shop or I cheated on her mum. All this [INDISTINCT] shit.”
- Importantly the effect of the appellant’s statements to police about P ultimately was not to suggest that P had assaulted C, but rather, to the contrary, that C had misinformed her mother that P had assaulted her. At one point in the above exchanges the appellant did refer to P having gone to gaol for “paedophilia”. But the overall effect of the appellant’s claims was that P had not assaulted C and that this was an example of C’s propensity to lie.
The evidence of C’s mother
- C’s mother gave evidence of an occasion at the Warwick house where she found the appellant in C’s bed with C. The appellant was then asleep. C’s sister, S, was in another bed in the same room. Both girls were awake. C’s mother reacted angrily and the appellant woke up and left the room. By that evidence, there was a contradiction of the appellant’s statements, in his police interview, that he had never been alone with the children in this house and that he had never slept in bed with C. Ultimately the prosecution argued, upon the basis of this evidence, that the appellant had lied about sleeping with C because he was conscious of his guilt, so that this lie corroborated the complainant’s account.
- The prosecution led further evidence from C’s mother which was also directed to establish similar lies by the appellant in his police interview. C’s mother said that there had never been any contact between C and the man W during the few weeks in which C’s mother and W had been in a relationship. In cross-examination she denied that she had said to the appellant that she had ended that relationship because W had “touched” C and that she intended to have C charged.
- She was asked whether she could recall any fight between the appellant and P about C and answered that “there was no fight at all” and no “touching” of C by P. She denied any conversation with the appellant about P and C.
The police evidence
- Two investigating police officers gave evidence to the effect that their searches of police records revealed no information about (relevant) complaints against W or P. As I will discuss, this evidence was used by the prosecution in its argument that what the appellant said to police about W and P were lies and were corroborative of C’s account.
Medical evidence
- A paediatrician, Dr da Silva, gave evidence that he conducted an examination of C on 16 September 2014 which revealed a tear through the entire width of the hymenal membrane. The tear was healed at the time of the examination. The timing of this injury could not be assessed except that it had not happened in the few days prior to his examination. He said that the injury was the result of some blunt force penetration, possibly a penis. He added that the location of this tear, in the upper half of the hymen, was “unusual for penile forceful penetration”. Other possible causes included “digital penetration or falling astride onto a foreign body”. He also said that had there been “regular full penile penetration”, he would have expected “more trauma” than what he found in his examination.
Admissibility of the appellant’s interview
- The appellant’s police interview was tendered without objection. But in the appellant’s outline of argument in this court, it was submitted that the recording of that interview was entirely self‑serving, consequently inadmissible and should not have been admitted. That submission was later withdrawn. An argument which was pressed for the appellant was that some of the statements within it, and in particular the references to W and P, ought not to have been admitted having regard to s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld), which relevantly provides as follows:
“4Special rules limiting particular evidence about sexual offences
The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant—
…
2Without leave of the court—
…
(b)evidence shall not be received as to the sexual activities of the complainant with any person.
3The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.
4Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.
…
6An application for leave under rule 2 shall be made in the absence of the jury (if any) and, if the defendant so requests, in the absence of the complainant and shall be determined after the court has allowed such submissions or evidence (sworn or unsworn) as the court considers necessary for the determination of the application.”
- The appellant’s submission was that the admission of this evidence required the leave of the court because it was evidence within r 2(b), namely evidence “as to the sexual activities of the complainant with any person”. It was submitted that this is a wider category of evidence than evidence which would tend to establish the fact that there was such a sexual activity and the difference between the two was apparent from r 4. For present purposes, that submission may be accepted. But because there was no objection by the appellant’s counsel, it could not be said that there was an error of law by the trial judge in admitting the evidence. The procedure in r 6 was not followed, in that there was no specific application for leave under r 2. But the court must be taken to have given leave by admitting the evidence.
- Ultimately the argument for the appellant in this respect was that there was a miscarriage of justice by the admission of this evidence, in that it facilitated the prosecution argument that there were lies about W and P which could be used to corroborate the complainant’s evidence. But if that evidence was relevant in that it could support such an argument, there was no injustice to the appellant from its admission. To put the matter another way, if the evidence was admissible on that basis it would have had a “substantial relevance to the facts in issue” and there would have been no good reason to exclude it. Ultimately therefore, the argument based upon r 2(b) of s 4 is inconsequential.
The prosecution case about lies
- In his opening address, the prosecutor told the jury that he would be leading evidence to prove certain lies by the appellant. The first alleged lie was the appellant’s statement about the man W. The prosecutor suggested this lie was a statement by the appellant that W had touched C when, in truth, that had not occurred. In other words, the appellant had misrepresented what had happened to C with this man, rather than misrepresenting what had passed between the appellant and C’s mother (if anything) about W.
- The second lie suggested by the prosecutor more precisely consisted of two representations by the appellant: the first being that the man P had touched C and the second being that the appellant had got into a fight with him. Again, in the way in which the prosecutor opened this evidence, the alleged lie in the first respect was that in fact P had not touched C, rather than a lie about whether C’s mother had said so to the appellant.
- The third lie referred to by the prosecutor in his opening again involved really two matters: the first that the appellant had never been in C’s room at any time and the second that he had never been alone with her. The prosecutor told the jury that the appellant’s statements on those two matters would be shown to be lies by the testimony of C’s mother. What followed was evidence from C’s mother, as I have discussed above at [23], that on one occasion she found the appellant in bed with C in C’s bedroom. That contradicted the appellant’s statement to police that he had never been in C’s bedroom. But it did not contradict his statement that he had never been in her bedroom alone with her, because C’s mother said that S was also in the room.
- At the completion of the evidence and in the absence of the jury, there was a discussion between the judge and counsel as to the prosecution case about lies. This was initiated by the prosecutor who said that before he addressed the jury he wanted to raise “an area where there may be some dispute”. He said that the lies in the appellant’s record of interview amounted to lies “going to consciousness of guilt” and that he anticipated an argument from the appellant’s counsel about that. The prosecutor described his proposed submissions as follows:
“…as I opened, there are three lies that the defendant has told. The first is in relation to nominating [W]. The second is in relation to nominating [P]. And the third lie…is the lie in relation to his statement to police that at no stage…was he ever in [C’s] bedroom or, indeed, in [C’s] bedroom alone with her at [the Warwick address]”.
- The trial judge then said that, in his view, there were two aspects to that third lie: one being that the appellant had never been alone with the complainant and the other that he had not slept in her bed. His Honour said, correctly, that such a lie could not be proved by the evidence of C’s mother, who had testified that the appellant was in C’s bed but with S, C’s sister, also in the room.
- After some further discussion between the prosecutor and the trial judge, his Honour suggested that the evidence of the appellant being found in bed with C was relevant also as evidence of a sexual interest of the appellant in C. I respectfully agree. But of course whether the appellant’s lie (if any) on that subject was probative of guilt, because it demonstrated a consciousness of guilt, was a different question.
- Counsel for the appellant then argued that none of the suggested lies could be characterised as demonstrating a consciousness of guilt. His Honour ruled otherwise, saying as follows:
“[I]f you’re looking at the consciousness of guilt, you’re assuming, when assessing that, that he is guilty. You don’t - you can’t assess consciousness of guilt on the assumption that he was innocent. If he is guilty, then you might expect that the medical examination would reveal something about the state of the child’s body. In those circumstances, one way of deflecting responsibility would be to claim that he’d been told that other people were doing things to the child.”
- As I will discuss, his Honour directed the jury to that effect, namely that the lies about W and P might be thought to reveal a knowledge that C had been injured in the offence and a fear that the discovery of that injury would implicate the appellant in the offence in the absence of any suggested assault by another person. That was a line of reasoning which had not been expressed by the prosecutor, who indeed had expressed no line of reasoning by which the lies could be thought to have revealed a knowledge of the offence or some aspect of it.
- Counsel for the appellant submitted that the statements which the appellant had made about W and P were not that they had touched C, but that C’s mother had said so. As I will discuss, his Honour appeared to accept that submission in the directions which he gave. However the prosecutor’s address to the jury did not recognise that distinction.
- The prosecutor began that part of his address which dealt with the appellant’s interview with police, not by referring to these alleged lies, but by arguing that there were a number of other “very telling inconsistencies in that interview.” He then went to the lies to be relied upon as evidence of a consciousness of guilt. The first which he described was that involving W, about which the prosecutor said:
“You have the lies that I opened to you, and these are really, to begin with, dealing firstly with the defendant stating that when he first got with [C’s mother] that she was going through court for [C] against [W] for touching [C]. Now, you’ve heard evidence from both the senior constable who’s the investigating officer and the detective that there was no court - there were no court proceedings, and my submission to you is that was a lie going to a consciousness of guilt on the part of the defendant.”
- Several things should be noted about that argument to the jury. The first is that it identified the true fact, about which the appellant was said to have lied, as being that C’s mother “was going through court…against [W] for touching [C]”. It did not identify the relevant fact as being that C’s mother had made no statement to that effect to the appellant. Secondly and perhaps because of that characterisation of the lie, the prosecutor argued that the lie was proved, not by the testimony of C’s mother, but by the evidence of the police officers who had searched for a record of a complaint against W in relation to C and had found nothing. That evidence from the police officers was not a basis for disproving that C’s mother had made a certain statement about W.
- The prosecutor then turned to the suggested lie about P. He said to the jury:
“The defendant then makes reference to [P], who was his mate at the time, that he touched [C] and, ‘I punched the shit out of him and I haven’t seen him since’.”
The prosecutor argued that this was a lie, based on the evidence of C’s mother who said that there was no fight over C. The prosecutor referred to some other parts of the appellant’s interview by police when referring to P in which he had described being given information by C’s mother about P and the girl. The prosecutor then said:
“Again the Crown say that [this] is a lie, because, if you remember [C’s mother’s] evidence, that just simply did not occur, and the police investigations into [P] are not consistent with that.”
In that argument, the prosecutor failed to clearly identify what he alleged was the lie. At one stage, he seems to have said that the true fact, about which the appellant had lied, was that C’s mother had not said these things to him. At another point, he seems to have said that the true fact was that P had not touched C. The evidence of the police officers was apparently relied upon for an argument of the latter kind.
- The prosecutor then turned to the third alleged lie, which he described as a lie “about [the appellant] being in bed with [C]”. He said to the jury that if they accepted the evidence of C’s mother that she did find the appellant in bed with C, his denial of that was “a lie going to a consciousness of guilt”.
- The prosecutor then submitted that the evidence of C’s mother in that respect was also consistent with the appellant having a sexual interest in the complainant.
- The prosecutor then returned to the suggested first and second lies saying:
“[C] says that he’s the only one who has ever done anything bad to her. Again, that’s obviously inconsistent with what the Crown say are lies in his interview, that there had been another two people who had interfered with her.”
Again, that was an argument that the appellant had represented to police that W and P had assaulted the complainant, whereas in truth they had not. It also invited the jury to engage in the impermissible reasoning of relying upon the evidence of the complainant as to whether these were lies by the appellant, when the lies were to be used as corroboration for the complainant’s evidence.[3]
The summing up about lies
- The trial judge told the jury that the prosecution relied upon four lies: one about W, one about P and two upon the basis of the evidence of C’s mother that the appellant was in C’s bed.
- His Honour characterised the case about W and P, as his Honour had described it in the exchanges with counsel, rather than as it was then argued by the prosecutor to the jury. His Honour said:
“…in each case [the appellant] was saying that because this is what…had been said to him by the mother… So strictly speaking, the two lies - the first two lies the Crown Prosecutor relies on are the proposition that [C’s mother] told the defendant that she was going through court for [C] against [W], that is, that [W] had sexually interfered with [C], and that she had told the defendant that [P] had been touching [C].”
- His Honour described the third and fourth lies, as he saw the prosecution case, as follows:
“The other two matters…came later in the interview when the police officer was asking the defendant whether…he had ever slept in [C’s] bed and whether he had ever been alone with her at [the Warwick house] and in each case the defendant said that he hadn’t slept in [C’s] bed; he hadn’t been alone with her at [that address]”.
- His Honour directed the jury that they first had to be satisfied that the defendant told deliberate untruths. Correctly, he told the jury that it was not just a matter of whether they preferred the evidence of C’s mother: it was a question of whether they could take the further step and find that there were deliberate lies on the part of the appellant.
- His Honour then directed them as to further requirements for a lie to be probative of guilt. He instructed the jury in these terms:
“[Y]ou must be satisfied that the lie is concerned with some circumstance or event connected with the offence. You can only use the lie against the defendant if you are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it.”
- His Honour then said that the four lies fell into two categories, the first being those about W and P, of which his Honour said:
“The Crown seek to rely on the first two on this basis: that the - if the defendant had committed this offence you might well think that he would have been aware of the injury to [C] that was detected by the doctor and that he might well have expected that there would be an examination of [C] and that this would reveal that there had been some sexual activity involving her. …
The first thing he talks about [in the interview] is the proposition that [C] has been sexually - touched, presumably sexually touched, by two other men, and that this was said in order to provide an explanation for the state of [C’s] body if it was examined. Now, it is only if you think that that did provide - that form of reasoning did provide an explanation for his having said that at that time that you could use this as a lie tending to show that he was guilty of the offence.
So even if you accepted that it was a deliberate lie, if you didn’t accept that it was in this way connected with the offence and that it revealed in this way some knowledge of the injury to the child which would show that there had been - tend to support an aspect of the evidence that there had been an offence against the child, that that was the explanation for the lie - that you could use it as something tending to show guilt.”
- His Honour was correct to direct the jury that they had to be satisfied, amongst other things, that the lie revealed a knowledge of the offence or some aspect of it for it to be a lie which was probative of guilt.[4] His Honour’s description of how the jury might reason on that question accorded with his view, when rejecting the arguments of defence counsel ahead of the addresses. But it was not a line of reasoning which had been suggested, at least specifically, by the prosecutor in his address. The prosecutor had not explained to the jury how the appellant’s statements about W and P revealed a knowledge of the offence.
- The trial judge then turned to the other suggested lies, saying as follows:
“Now, in relation to the question of ever having been in [C’s] bed or having been alone with her, the question of whether he was ever alone with her raises the issue of whether there was opportunity for him to have committed the offence. The question of whether he had ever slept in [C’s] bed really comes back to the question of whether the sleeping in the bed was something that revealed a sexual interest in the child and a willingness to put – to give effect to that interest, and that’s something that I said to you earlier about, the other aspect of that evidence about finding the defendant in the bed.
So it would only be if you did think that the evidence of the defendant being in bed with the complainant, sleeping in the bed with the complainant, was something that revealed a sexual interest in the complainant and a willingness to give effect to that that you could treat that lie, if you accepted that it was a lie, as something showing a knowledge of the offence or some aspect of it. So it’s that way – there has to be a connection between the lie and the commission of the offence. It’s not the mere fact that a person tells a deliberate lie which tends to show that they’re guilty of the offence charged. So that’s the second requirement.”
- His Honour told the jury that they must find that the appellant was lying because he was conscious that the truth would tend to convict him and that there could be reasons for the lie apart from a “realisation of guilt”.
- His Honour described the defence case about the alleged lies before concluding this part of the summing up as follows:
“[B]ear in mind that there’s more involved in the process than simply accepting the complainant mother’s evidence - the mother’s evidence, rather than the defendant’s evidence about this. You would have to find that it was a deliberate lie by the defendant; you would have to find that it was a lie concerned with some circumstance or event connected with the offence; and you would have to find that he told the lie because he knew the truth of the matter would implicate him in the commission of the offence, and it’s only if you get to that point, you’re satisfied of all those matters, that you can treat it as evidence tending to show - evidence independent of the account of the complainant tending to show that the defendant had committed the offence.”
- Shortly after the jury retired, the appellant’s counsel complained of the directions about lies, firstly by saying that only three lies could possibly arise on the Crown case whereas his Honour had directed in relation to a fourth lie, namely about whether the appellant had ever been alone with the complainant in the Warwick house. The appellant had said that he had never been alone with her in that house. But that was not contradicted by the evidence of C’s mother, because the incident which she related was one in which S was also in the room. The appellant’s (then) counsel made other submissions to the effect that his Honour’s directions had not been balanced, which his Honour rejected and which are not pressed in this court. His Honour did agree that he should redirect the jury about what he had described as the third and fourth lies.
- When the jury returned his Honour said:
“You will recall that towards the end of my summing up I was talking about some matters that the Crown prosecutor was relying on and identified it as four matters the Crown prosecutor was relying on as being lies revealing a consciousness of guilt. Now, two of those I identified as the proposition that the defendant said he’d never slept in [C’s] bed and that he had never been alone with her at [the Warwick address].
Now, I’ve been reminded that, in relation to the second of those, that the passage in the interview - or the part of the interview that was relied on by the Crown was not - did not involve saying that he was never alone with [C] at [the Warwick address] but was asked:
You said you lived there only a month…?---Yeah.
Were you ever alone with the kids at all then?---No.
So the proposition was not that he was never alone with [C] but that he was never alone with the kids. Although I had been reminded that I should have directed you in those terms, rather than the terms that I did, you will recall, of course, that [C’s mother’s] evidence…was not that she found the defendant alone with [C] in the bedroom but that she found the defendant in the bedroom with [C] and her younger sister. So that it wasn’t the case - if the defendant had said that he wasn’t alone with [C] then that wouldn’t have been a lie. But the Crown were relying on his having said that he wasn’t alone with the kids, and rely on that passage of the mother’s evidence as showing that that was a lie. So when I was identifying that aspect of the Crown submission, I didn’t do it quite correctly and I thought I should correct that. But, otherwise, what I said about that submission stands. But it stands in relation to that formulation of the fourth lie.”
The character of the lies
- The first question here, in relation to each of the suggested lies, is whether it was open to the jury to find that the lie could be used as evidence of the appellant’s guilt, rather than as evidence only affecting his credibility. A lie of the first kind could be established only by the jury being persuaded of several things. Importantly, the jury’s reasoning had to proceed by reference to a lie which had been “precisely identified”, as the majority said in Edwards v The Queen.[5] As I have discussed, the identification of the lies in this case lacked precision, at least because the alleged lies about W and P were defined differently by the prosecutor and the trial judge.
- If the jury was persuaded that there was a lie by the appellant, they had to consider whether the lie was “concerned with some circumstance or event connected with the offence”, or in other words, that it “relate[d] to a material issue.”[6] The lies about W and P were not about a circumstance or event connected with the offence, unless the jury accepted the trial judge’s characterisation that they related to the injury to C’s hymen and that this was a material issue. The lies about the appellant being in C’s bedroom were said to be relevant to a material issue, in that they were relevant to whether the appellant had a sexual interest in the complainant. I accept that the evidence that the appellant had slept in the complainant’s bed was relevant to that issue. The jury was also instructed they could use the alleged lie as to whether the appellant had been “alone with the kids” in the same way. But that was not a material lie, because the jury could not reason from the fact that the appellant had, on whatever occasion, been alone with C and her sister that he had a sexual interest in C. And the alleged offence, unlike the incident occurring months earlier as related by C’s mother, had not occurred when the appellant was “alone with the kids”.
- If the jury was satisfied that a lie related to a material issue, they had to be persuaded that the appellant told the lie in circumstances in which the explanation for the lie was that he knew the truth would implicate him in the offence.[7] This required not only the precise identification of the lie, but also “the circumstances and events that are said to indicate whether it constitutes an admission against interest”.[8] At that point in the jury’s consideration, they had to be satisfied of two things, as the majority described in Edwards as follows:[9]
“And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.”[10]
- It was what (if anything) the lie itself revealed about the appellant’s mind which was critical. Did the lie reveal a consciousness by the appellant of his guilt? It could do so only if it revealed a knowledge of the offence or some aspect of it and a fear that the truth of the matter would implicate him. As Callaway JA (with the agreement of the other members of the court) said in R v Kondstandopoulos:[11]
“It is the combination of knowledge and fear that evinces guilt”.
- Each of the lies must now be considered as to whether it was open to the jury to conclude that the lie revealed a knowledge of the offence or some aspect of it and a fear of the truth. It is convenient to begin with the lie or lies involving the man P. In the trial judge’s view, it was open to the jury to conclude that these lies revealed a knowledge of an injury (or a likely injury) to the complainant, which might be discovered by the police investigation, and a motivation by the appellant to attribute that injury to another person. That issue required a consideration of the overall effect of what the appellant had said to police about P. The jury was referred by the judge to only some of that evidence, which the judge summarised to the jury by saying “the first thing he talks about is the proposition that [C] has been sexually - touched, presumably sexually touched by, by two other men…” The trial judge was there describing the prosecution. But his Honour failed to refer to other parts of the appellant’s interview which, as I have discussed, should have shown the effect of what the appellant was saying in relation to P. I have set out those other passages above at [20]. As I have discussed, the effect of what the appellant was saying about P was not that P had assaulted the complainant but that the complainant had misinformed her mother that he had done so. In particular, the appellant told police that when he was sober the next morning, he realised that he made a mistake in assaulting P “‘cause [C] does lie.”
- For present purposes, let it be assumed that the appellant lied, in that C’s mother had not said these things about P to him. Let it also be assumed that he lied when he described his assault on P. Did those lies reveal a knowledge of the offence, or an aspect of it, and a fear that the truth would implicate the appellant in the offence? Once the effect of the appellant’s statements about P is properly understood, the basis which was suggested in the summing up for this lie (or these lies) revealing a consciousness of guilt is lost. The lies do not reveal an attempt to explain away the injury to the child, by saying that another man had assaulted her because the appellant was saying the opposite. If these were lies, they revealed no more than a concern that C’s version might be accepted and an attempt to describe her as a dishonest and unreliable complainant. The lies were not capable of being interpreted as the result of a consciousness of guilt. They revealed no knowledge about the offence or an aspect of it, other than, as the appellant had been informed by police, the complainant had said that he had raped her. In my conclusion the suggested lies about the man P were not capable of being understood by the jury in a way which permitted them to be used as what is commonly referred to as an Edwards lie.
- The characterisation of the alleged lies about the man W was affected by what the appellant was saying about P. The appellant referred to both men in response to a request that he tell police everything he could about the complainant. The trial judge was correct to characterise what the appellant said as statements about his conversation with the complainant’s mother, rather than as a representation that, in fact, either of these men had assaulted the complainant. If the mother had said those things to the appellant, the source of her information would have been the complainant. The appellant emphasised to the police officers that the complainant was an habitual liar. At least on one view, the appellant was referring to what had been said about W, as well as what had been said about P, as an instance of a false complaint. Similarly then, the jury could not have properly concluded that the alleged lies about W revealed a knowledge of the offence or some aspect of it and a fear of the truth.
- As to the alleged lie about whether the appellant had ever been alone with the children in the Warwick house, I have concluded that this could not have been a lie which related to a material issue. But further, it could not have revealed a knowledge of the offence or some aspect of it. The offence had occurred, according to the complainant, in the absence of her sister S. For this further reason, it was not open to the jury to characterise this as an Edwards lie.
- Nor did the other lie, namely as to whether the appellant had slept in the complainant’s bed, reveal a knowledge of the offence or some aspect of it. If this was a lie, it related to quite a distinct incident. It did relate to a relevant subject matter. But the question was whether the lie itself revealed a knowledge of some aspect of the alleged offence. In my conclusion it was not open to the jury to conclude that it did. On the evidence, the offence had not occurred on the occasion described by C’s mother or, on the complainant’s evidence, on an occasion when he had been sleeping in her bed.
- In summary, none of the alleged lies should have been left for the jury to consider as Edwards lies. There was thereby a miscarriage of justice. Indeed if any of them was incapable of being considered an Edwards lie, there was a miscarriage of justice because of a real possibility that the jury’s use of the lie in that way deprived the appellant of an acquittal.
Other difficulties with the case about lies
- The jury’s task in considering the arguments about lies was made more difficult by several events during the trial. The first was the imprecision in the prosecutor’s identification of the lies. As I have discussed, the prosecutor seemed to argue that there were lies about W and P upon the basis that the appellant had represented that each of them had assaulted the complainant, as distinct from a representation as to what he had been told by the complainant’s mother. That imprecision was complicated by the way in which the prosecutor’s argument differed from what was said by his Honour to the jury when describing it.
- The jury’s task was also complicated by the use which the prosecutor sought to make of the evidence that there was no police record of a proceeding or complaint against W or P. It was upon that evidence that the prosecutor relied in arguing, at least in relation to what had been said about W, that the appellant had lied. If the issue was whether W or P had assaulted C, that evidence might have become relevant, although of itself it could not have proved that neither man had assaulted her.
- And if the issue was whether C’s mother had said these things about W and P to the appellant, the evidence as to what was not in the records of the police had no relevance. His Honour apparently considered it irrelevant because he did not refer to it in his directions. Nevertheless, it was possible that the jury did use this evidence to conclude that what was said by the appellant about W and P were lies.
- Another complication, it must be said, came from the required redirection, which is likely to have contributed to the burden of the jury’s task.
- These matters confirm my conclusion that there was a miscarriage of justice, by the prospect of an acquittal being lost to the appellant from impermissible reasoning by the jury about the alleged lies.
- But for the argument now to be considered, my conclusions as to the so‑called Edwards lies would require the appeal to be allowed, the conviction set aside and that there be a retrial. But it is further argued that the verdict was unreasonable, in that it was not open to the jury to convict the appellant.[12]
Was the verdict unreasonable?
- This should be considered upon the premise, as I have concluded, that there were no Edwards lies to support the prosecution case. The appellant relied on the following circumstances to establish this argument:
- C’s testimony was false or inconsistent in several respects: in her interview by police and her pre‑recorded evidence she said that the offence occurred when she was six years of age whereas she was seven years old and she gave inconsistent accounts as to whether or not she was wearing a shirt or was completely naked at the time of the offence;
- C said that there were other (uncharged) acts by the appellant of which she was unable to give any detail (to which might be added the doctor’s evidence that her injury was inconsistent with there having been regular full penile penetration);
- the evidence suggested an explanation for a false complaint given the acrimonious events earlier in the day and the fact that at one stage, C agreed that she had made the complaint on the instruction of her mother “to get Michael in trouble”;
- the curiosity in C’s mother being ignorant of the alleged offence until the day of the complaint although Cs grandmother had been aware of it for at least some days according to her evidence;
- the evidence of C’s grandmother as to when she was told of the offence was inconsistent;
- the evidence of C’s mother as to when she saw the appellant in the complainant’s bed was inconsistent with the facts as to the period in which the appellant lived with her and her daughters at the Warwick house.
- Each of those matters is relevant and together they provide a strong argument that this verdict was unreasonable. In particular, the timing of the complaint to police, the inconsistent accounts of the grandmother as to when she had learnt of the matter and the curious ignorance of C’s mother after the grandmother had been so informed, combine to strengthen an impression that this complaint was a reaction to the events of earlier that day, when the complainant had witnessed a physical altercation in which her youngest sister was kept from her mother and C in what must have been a very distressing experience for them.
- The medical evidence provided proof, although not compelling proof, that C had been sexually assaulted and there had been some penetration. But the circumstances in which the complaint was made to police made the case relatively weak, because it provided a not unlikely explanation for a false complaint.
- The assessment of the appellant’s guilt in this court, of course, requires a consideration of the whole of the evidence. It requires a consideration not only of the complainant’s evidence, but that of her mother and her grandmother. An explanation for the coincidental timing of this complaint would depend upon the grandmother's evidence. The mother’s evidence, as to the appellant being in bed with the complainant, is clearly important: absent that evidence, the case would be substantially weaker. Because of the matters referred to in the appellant’s submissions, particularly the timing and circumstances of the complaint to the police, I hold a doubt as to the appellant’s guilt. But I have not had the advantage, which the jury had, of seeing and hearing the evidence of the grandmother and the mother. This is a case where that advantage of the jury is “capable of resolving a doubt experienced by a court of criminal appeal [such that] the court may conclude that no miscarriage of justice occurred.”[13]
- In my conclusion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
Conclusions and Orders
- Because I would set aside the conviction I have not considered the appeal by the Attorney‑General against the sentence. I would order as follows:
- Allow the appeal against conviction.
- Quash the conviction.
- Order that the appellant be retried.
- Dismiss the appeal against sentence by the Attorney‑General.
Footnotes
[1] The recording being tendered under s 93A of the Evidence Act 1977 (Qld).
[2] At two places in the transcript of that part of the interview, the first name of C’s mother has been mistaken for the word “he”. The context suggests these mistakes and are confirmed by the recording itself.
[3] See eg Edwards v The Queen (1993) 178 CLR 193, 211 per Deane, Dawson and Gaudron JJ.
[4] Edwards v The Queen (1993) 178 CLR 193, 211.
[5] (1993) 178 CLR 193, 210.
[6] Ibid.
[7] Ibid, 211.
[8] Ibid, 210-211.
[9] Ibid, 211.
[10] R v Lucas (Ruth) [1981] QB 720, 724.
[11] [1998] 4 VR 381, 389.
[12] M v The Queen (1994) 181 CLR 487, 493; MFA v The Queen (2002) 213 CLR 606, 615.
[13] M v The Queen (1994) 181 CLR 487, 494.