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R v Thomas QCA 37
SUPREME COURT OF QUEENSLAND
R v Thomas  QCA 37
CA No 159 of 2018
DC No 8 of 2018
Court of Appeal
Appeal against Conviction
District Court at Emerald – Date of Conviction: 28 May 2018 (Burnett DCJ)
5 March 2019
27 September 2018
Gotterson and Morrison JJA and Henry J
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of five counts of indecent treatment – where the appellant’s legal representative at trial made allegations that, among other things, a witness had been coached and that the investigating police officer was corrupt – where the appellant claimed that his legal representative did not seek instructions to make such allegations during the trial – where the appellant claimed that by advancing such allegations without foundation the jury would be led to reason that the appellant thought that without those allegations no reasonable doubt to his guilt would arise – whether the matters identified by the appellant distracted the jury from the proper and dispassionate examination of the issues in the case
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the respondent sought to adduce further affidavit evidence of the appellant’s legal representative at trial – where the appellant objected to certain paragraphs of the affidavit – whether the affidavit evidence was relevant for an objective assessment of the conduct of the defence
Libke v The Queen (2007) 230 CLR 559;  HCA 30, considered
TKWJ v The Queen (2002) 212 CLR 124;  HCA 46, considered
M J Copley QC for the appellant
D L Meredith for the respondent
Mulcahy Ryan Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- GOTTERSON JA: At a trial over four days in the District Court at Emerald, the appellant, Gregory Henry Thomas, was, on 28 May 2018, found guilty on five counts of indecent treatment. Each count alleged an offence against s 210(1)(a) of the Criminal Code (Qld) in unlawfully and indecently dealing with a child who was under 12 years of age. Three of the counts alleged an additional circumstance of aggravation, namely, that the child was under the appellant’s care for the time being.
- All the offending was alleged to have been against the one complainant and to have taken place at Springsure. Count 1 alleged that the offending took place between 1 August and 31 December 2015; for Count 2, between 1 August 2015 and 2 April 2017; for Counts 3 and 4, between 1 November 2016 and 2 April 2017; and for Count 5, on or about 2 April 2017. The alleged offending occurred on four separate occasions.
- Count 1 alleged that the appellant touched the complainant’s vagina as they sat on a couch in a house on property owned by the complainant’s parents where the appellant, a family friend, sometimes worked and stayed. Count 2 involved alleged touching of the complainant’s vagina when she and her siblings were out shooting with the appellant.
- Counts 3 and 4 allegedly occurred at a bonfire celebration to which the appellant had driven the complainant in order to toast marshmallows. He was alleged to have touched the complainant’s breasts on the drive to the bonfire (Count 3) and touched them again at the bonfire (Count 4).
- Finally, Count 5 allegedly occurred after a creek had flooded. The appellant was helping the complainant fish in the creek. It was alleged that he touched her on the vagina.
- The appellant was also sentenced on 28 May 2018. The sentences were for Counts 1 and 2, 12 months imprisonment; for Count 3, 15 months imprisonment; and for Counts 4 and 5, 18 months imprisonment. All terms of imprisonment are to be served concurrently. A parole eligibility date at 27 February 2019 was set.
The ground of appeal
- The appellant was represented at the trial by a solicitor advocate, Mr D J Winning. The same solicitor had also acted for him at a pre-recording of the complainant’s evidence which took place on 9 March 2018.
- At the hearing of the appeal on 27 September 2018, leave was granted to the appellant to file an amended notice of appeal which substituted the following as the single ground of appeal:
“A miscarriage of justice was occasioned by the way in which the defence solicitor conducted the defence case.”
- In written submissions, the appellant’s complaint is summarised as follows:
“5. Four things done by the appellant’s solicitor, considered together, distracted the jury from a proper and dispassionate consideration of the evidence and the real issue with the case. The matters were:
a. an allegation that a witness was coached;
b. an allegation that the witness did not tell a police officer some details:
c. an allegation that a police officer was corrupt; and
d. an allegation that the Crown Prosecutor mislead the Court about the law.
- The jury saw the solicitor subsequently concede that, for matter (b), the witness had in fact informed the police officer of the details. The jury was told to disregard allegation (a) because there was no foundation for it. The allegation of corruption, made without foundation, was subsequently withdrawn in way that did no credit to the defence case.”
Application to adduce further evidence
- Each party to the appeal filed an application to adduce further evidence. In the appellant’s case, the evidence took the form of a short affidavit sworn by him on 17 September 2018. For the respondent, the evidence was an affidavit sworn by Mr Winning on 24 September 2018.
- Leave, which was unopposed, was granted in the case of the appellant’s affidavit. Omitting formal matters, the admitted evidence given by the appellant was:
“4. At no time did I sign formal instructions during the entirety of my representation by Mr Winning. He did take me through the evidence prior to Trial.
- During the course of the Trial, Mr Winning did not seek instructions from me regarding:
a. an allegation that the complainant’s mother had been coached;
b. an allegation that the complainant’s mother had not told Constable O'Neil certain details regarding the child’s complaint;
c. an allegation that Constable O'Neil was corrupt;
d. an allegation that the Crown Prosecutor misled the Court.
- Mr Winning made the accusations in paragraph 5 hereof without consulting me.”
- As to Mr Winning’s affidavit, no objection was taken to a statement by him that the appellant did not sign a document which contained his formal instructions.Much of the affidavit was not pressed. However the following paragraphs in it were pressed over objection by the appellant:
“35. Mr Thomas instructed that the complainant was not telling the truth about the allegations. However, he could not point to any apparent motive in the child to lie.
- He instructed that the “couch incident” occurred when a nanny was supervising the children.
- He instructed that one of nannies was typically present when he was watching television with the children.
- He instructed that the allegations involved in the “fishing incident” were untrue.
- He provided names of several adults who were present on that day who could have been potential witnesses.
- He agreed that the incidents which gave rise to the allegations did in fact occur, however he denied any sexual touching of the complainant.
- The defendant thought that the police investigation was unfairly conducted.
- He pointed to possible collusion between mother and the complainant relative to the preliminary complaint evidence.”
- The parties made brief oral submissions at the hearing of the appeal on whether the evidence in these paragraphs ought to be received. The Court reserved its decision on this issue.
- As support for the objection, senior counsel for the appellant referred the Court to passages in the decision of the High Court in TKWJ v The Queen, the substance of which are distilled in the observations of Hayne J that the question whether a failure to call evidence available to the defendant at trial has led to a miscarriage of justice requires the appellate court to undertake an objective inquiry, not a subjective inquiry into the thought processes of those who appeared for, or advised, the accused at trial. As his Honour noted;
“The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?”
- The respondent does not take issue with this principle. The submission in favour of the evidence is two-fold. First, the respondent contends that the evidence sought to be admitted does not offend against the principle in that it does not purport to reveal or explain Mr Winning’s subjective thought processes.
- Secondly, the respondent submits that the evidence has relevance for an objective assessment of the conduct of the defence. The instructions given by the complainant to his legal advisors both laid the basis for, and constrained, the lines that might reasonably have been pursued in defending the appellant. Hence, evidence of those instructions is relevant and therefore admissible.
- I accept the respondent’s submissions. The evidence is relevant for the reasons advanced. It does not offend the principle for which TKWJ was cited. Moreover, it concerns a subject that was opened by the appellant’s own evidence as to instructions given by him. Accordingly, I would grant leave to adduce the evidence in paragraphs 35 to 42 inclusive of Mr Winning’s affidavit.
The approach taken in the defence case
- In the interview, the complainant described the five events of alleged indecent treatment. She did not resile from them in cross examination. Consistently with the appellant’s instructions, it was not suggested to the complainant that she was not in the appellant’s company when the alleged offending occurred. The defence case, as put in cross examination, was that the alleged offending did not occur on any of those occasions. However, there was no positive case available to be the appellant’s legal representatives, either by way of a police interview in which the appellant participated or by way of oral testimony on his behalf, that the offending did not occur.
- The cross examination of the complainant was directed at eliciting concessions as to lack of detail and to establishing that others were present on those occasions. The purpose of that approach to cross examination of the complainant evidently was to facilitate an argument that it was unlikely that the offending occurred if others were present. The complainant’s response was to say that, other than when she was in the appellant’s vehicle, she quickly moved away from him so that the touching could not continue. She did not protest. There was limited opportunity for others to notice what was taking place. This response was not put in question by any other evidence adduced in the case.
The test to be applied for this ground of appeal
- The parties to this appeal are agreed that the approach to be taken when an appellant defendant seeks to impugn the conduct of the prosecutor or his or her legal representative at trial as having resulted in a miscarriage of justice is that described and applied by the High Court in Libke v The Queen.In that case the appellant criticised the conduct of the prosecutor as having been unfair. Hayne J, with whose reasons Gleeson CJ and Heydon J agreed,said of unfairness;
“Unfairness may take many forms. Often what is unfair will constitute a departure from the ordinary rules that ensure the orderly conduct of a trial. Those rules encompass not only the rules of evidence but also such diverse matters as when and how counsel may address the judge and the jury. This is not to say that every departure from those rules is to be branded as causing unfairness. But, because the rules of orderly procedure are designed to safeguard the fairness of the proceedings, what is unfair will often be a departure from those rules.”
- In Libke, the question was whether the prosecutor had set out to undermine the appellant’s credibility unfairly.There had been no objection at trial to the questioning. Hayne J identified the test for unfairness as “whether the cross-examination was such as to distract the jury from the proper and dispassionate examination of the issues in the case”.The application of the test, his Honour noted, “requires consideration of not only those questions that were said to be designed unfairly to undermine the appellant’s credibility, but also the various comments made by the trial prosecutor in the course of his examination of the appellant”.
- In applying the test, Hayne J observed:
“The trial prosecutor should not have aligned himself with the prosecution case, which is what he did whenever he conveyed to the jury his own opinion of the appellant's evidence. Would these repeated expressions of alignment with the prosecution case have distracted the jury from their task of assessing whether the evidence that was led at trial established the appellant's guilt beyond reasonable doubt? Would other aspects of the cross-examination have caused or contributed to that consequence?”
His Honour went on to answer both questions in the negative.
- In a short judgment, Gleeson CJ explained that whether a miscarriage of justice had resulted “involved a question of degree”.His Honour described the caution to be exercised in applying the test as follows:
“…It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant. Even so, having read the whole of the evidence of the appellant, I would not interfere with the Court of Appeal's conclusions that the conduct of the prosecutor did not make the trial unfair.”
The four matters
- I propose at this point to outline each of the four matters on which this ground of appeal is based and then to consider the submissions made in respect of them. The following short chronology has relevance to these matters. The complainant first raised her account of the appellant’s alleged conduct on 18 May 2017 in a car journey with her mother. She said that he had touched her “wee wee” and “boobs”. The next day the complainant’s mother reported what she had been told to Senior Constable B O'Neil at the Springsure police station. Arrangements were made for her to take the complainant to the police station at Emerald to participate in an interview with Detective Senior Constable C Cattell. The interview took place on 25 May 2017. In due course, the complainant’s mother supplied a written statement to Senior Constable Cattell. That occurred on 29 May 2017.
- Matter (a) – allegation that complainant’s mother was coached: Mr Winning put to the complainant’s mother that she wrote her statement after the complainant had been interviewed by Senior Constable Cattell on 25 May 2017 and after she had found out “roughly in summary form” what the complainant had said.It was put to her that Senior Constable Cattell had “debriefed” her about what the complainant had saidand that he had told her “exactly what (the complainant) had complained of”.
- The learned trial judge observed that any suggestion of coaching was baseless and that the statement that there had been, was “outrageous”. His Honour immediately told the jury “ignore this, please. This is completely unacceptable”.
- The jury retired; an adjournment was taken; and the trial resumed some 20 minutes later. Upon the resumption, it was put to the complainant’s mother, and denied by her, that she told police that her daughter had complained that the appellant had “rubbed (her) on the boobs” and “touched her near the wee wee”, only after “a little parley” with Senior Constable Cattell.
- In oral submissions on appeal,the appellant also questioned why the allegation of coaching was made because, in her statement to police, the complainant had said that at the time of the fishing incident, the appellant put his hands down her pants in the water; whereas in her evidence in chief at the trial, the complainant’s mother said that, in response to a question from her as to whether the appellant had ever put his hands in her pants, the complainant had said that she could not remember.As well, the appellant noted, Senior Constable Cattell was not challenged in cross examination after he had given evidence in chief rebutting the allegation that he had coached the complainant’s mother.
- Matter (b) – allegation that the complainant’s mother did not tell Senior Constable O'Neil certain details: After the adjournment to which I have referred, Mr Winning questioned the complainant’s mother whether she had told Senior Constable O'Neil that her daughter had complained to her about being “rubbed on the boobs” and “touched near the wee wee” when she spoke to him on 19 May 2017. The complainant’s mother said that she had.Mr Winning then asked her if she would be surprised that there was nothing to that effect in her statement.He suggested to the complainant’s mother that she did not tell this to Senior Constable O'Neil, a suggestion that she said was “untrue”.
- Mr Winning then asked for an adjournment so that Senior Constable O'Neil’s crime report could be accessed and provided to him with a view to his cross examining the complainant’s mother with the benefit of it. The crime report and Senior Constable O'Neil’s notes were given to Mr Winning during the lunch adjournment which followed. Upon the resumption of the hearing, and in the absence of the jury, he told the learned trial judge that those records confirmed “almost precisely” that the complainant’s mother had told Senior Constable O'Neil what she had said in her evidence she told him.
- When the jury returned and the complainant’s mother had returned to the witness box, Mr Winning informed her that Senior Constable O'Neil’s records confirmed her evidence of her conversation with him.In his address to the jury, Mr Winning again acknowledged that those records had confirmed this aspect of the evidence of the complainant’s mother.
- Matter (c) – allegation of police corruption: In his closing address, Mr Winning suggested to the jury that Senior Constable Cattell had not properly investigated the complaint. He had not obtained a statement from persons who had been present on the occasions when the offending was alleged to have taken place and who were independent of the complainant’s immediate family. Mr Winning further suggested that Senior Constable Cattell had, on that account, denied the jury “the opportunity to see what the proper evidence is”.
- Mr Winning went on to comment:
“Most occasions with these corrupt and useless police officers, they actually promote them. That’s the State of Queensland. Sadly, there are moves elsewhere to tidy up the mess, but not in Queensland.”
- A little later, an adjournment was taken. In the absence of the jury, the learned trial judge told Mr Winning that he proposed to direct the jury that the comment was “entirely inappropriate”.Immediately after the adjournment, Mr Winning told the jury that by using the word “corrupt”, he was not suggesting that any of the police officers involved had received rewards for not interviewing “crucial witnesses”. He was “merely suggesting that the process of gathering evidence had been corrupted” by the failure to interview witnesses.
- Matter (d) – allegation that the prosecutor misled the court: In cross examination, Mr Winning put to Senior Constable Cattell that his method of interviewing child witnesses, in this case the complainant’s two younger brothers, was wrong and had not been in accordance with his training.Senior Constable Cattell did not accept what was put to him.
- When Senior Constable Cattell was re-examined, Mr Winning objected to questions about the training in interviewing children that he had received. Mr Winning went on to protest that if the prosecutor was seeking to convince the court that there was integrity in the interview process that had been undertaken, then he had a duty to state the law to the court. He continued:
“So let’s not mislead the court. We know that that’s wrong and you can’t ask those questions.”
- Ultimately, Senior Constable Cattell was asked by the prosecutor whether, in his opinion, his interviewing of the brothers was in accordance with the training provided to him. He responded that it had been.
Submissions on appeal
- Appellant’s submissions: The appellant submits that the advancing of allegations without foundation was apt to suggest to the jury a lack of confidence on the appellant’s part that the lines that were available to be pursued legitimately in his defence would ground a reasonable doubt that he had acted as the complainant had alleged.
- It is submitted that the jury were likely to have regarded the personal attacks on the complainant’s mother as having emanated from such a lack of confidence. Those impressions were reinforced “when the allegation of corruption was abandoned by attempting to deny it had ever been made and even by the direction to ignore the allegation of coaching” and by the changing nature of the defence allegations of generality or particularity in what the complainant had told her mother on 18 May 2017.
- Further, the attack on the mother’s account of what she told Senior Constable O'Neil, which was initiated without recourse to his records, also suggested a lack of confidence in the defence. In the end, the mother’s credit was buttressed by the subsequent provision of the records.
- The appellant also submits that the allegation of corruption was made without instructions or reasonable grounds for belief in it, and hence in breach of the Australian Solicitors’ Conduct Rules. Whilst the departure from the Rules did not, of itself, make the trial unfair, it did contribute to the jury being distracted from a proper and dispassionate consideration of the evidence.
- Finally, the appellant noted that he had been convicted on all counts. Unlike in Libke, there was no combination of convictions and acquittals which in that case had aided a conclusion that the jury had not been distracted from its proper task.
- Respondent’s submissions: The respondent submits that the lines of defence available were constrained by the instructions given by the appellant. The defence was faced with a compelling witness in the complainant. There was no apparent motive for her to have complained falsely. That the complainant had been in the appellant’s company was acknowledged. Hence, the defence had to focus upon eliciting any discrepancies in the complainant’s version, highlighting a lack of detailed descriptions of what occurred and the absence of possible eyewitnesses that the police had not interviewed. The appellant’s legal representatives did pursue those lines of defence.
- As to Matter (a), in the circumstances, it had been a reasonable forensic risk for Mr Winning to take to have sought to make use of the sequence of events in which Senior Constable Cattell spoke to the complainant’s mother after he had interviewed the complainant, but before the mother had given her statement. Although the attack failed to impair the mother’s credibility, it did not damage the appellant. It remained open for Mr Winning to emphasise, as he did in his address, the limited use that could be made of the mother’s preliminary complaint evidence.
- In respect of Matter (b), the respondent accepts that the allegation may have been made unwisely but notes that an appropriate concession was made to the complainant’s mother and in addresses, both in the jury’s presence.As to Matter (c), the respondent contends that it was made clear to the jury that personal corruption by police officers was not suggested. Mr Winning clearly stated to the jury that he was alleging corruption of the evidence gathering process as he had done during the trial by referring to a failure to interview potential witnesses.Neither it nor Matter (d), it is submitted, harmed the appellant’s case.
- It is relevant, too, the respondent submits, that Mr Winning addressed the jury at length, highlighting many issues. No complaint was taken about it or about the summing up in which the learned trial judge addressed issues raised by the defence including inconsistences in the complainant’s evidence, their effect, the lack of eyewitnesses, and shortcomings in the police investigation.
- The question for this Court to answer is whether the matters identified by the appellant distracted the jury from the proper and dispassionate examination of the issues in the case. As put on behalf of the appellant, the allegations were unfounded. They were apt to give the jury the impression that the appellant feared that unless such allegations were made, the jury would not have a reasonable doubt as to his guilt.
- This formulation characterises the distraction as having put the jury in a frame of mind that, had the defence been limited to lines legitimately available, the appellant, at least, thought that no reasonable doubt as to his guilt would arise. The appellant proposes that, in such frame of mind, the jury might well not have been astute to examine the evidence and consider the addresses and the summing up properly and dispassionately in order to determine whether they held a reasonable doubt as to his guilt.
- As to Matter (a), the chronology gave legitimacy to cross examining the complainant’s mother as to what she had been told by Senior Constable Cattell about his interview of the complainant, before the mother provided her written statement. The allegation made in the course of cross examination of “coaching” was baseless. Apart from that, one might well question why it was made, given the discrepancies as to what the complainant had said about the appellant having put his hands down her pants. Mr Winning was reproached by the learned trial judge who immediately told the jury to ignore the allegation. It may be accepted that they did that.
- In regard to Matter (b), the allegation was imprudently made. However, it was retracted both during the mother’s evidence and in Mr Winning’s address. With respect to Matter (c), it was legitimate for Mr Winning to have pursued and addressed upon a failure to investigate potential witnesses. It was made clear to the jury that the “corruption” to which Mr Winning had referred was of the investigative process.
- Matter (d) was an example of ill-chosen words in an argument about proper interviewing techniques for children. The use of the word “mislead” was quite inappropriate. However, no specific allegation was made that the Court had been misled as to the law by the prosecutor. In the end, the matter was overtaken by the evidence of Senior Constable Cattell in re-examination.
- In this case, I have difficulty in accepting the appellant’s characterisation of distraction of the jury. I am unable to conclude that Mr Winning’s exuberance of language and, at times, misplaced allegations would have led the jury to reason that the appellant was thinking that, but for them, no reasonable doubt to his guilt would arise.
- Moreover, for the appellant’s associated proposition to be valid, such a distraction would have to have persisted after the jury had retired to consider the verdicts. Having regard to the direction given by his Honour as to Matter (a), the concessions as to Matter (b), the clarification of Matter (c) and the overtaking of Matter (d), I much doubt that that would have occurred in any event. As the respondent notes, the jury’s deliberation took place after both a detailed address by Mr Winning and a comprehensive summing up by the learned trial judge, to which no objection was taken.
- For these reasons, I am unpersuaded that a miscarriage of justice has been demonstrated. As the ground of appeal has not been made out, this appeal must be dismissed.
- I would propose the following order:
- Appeal dismissed.
- MORRISON JA: I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.
- HENRY J: I have read the reasons of Gotterson JA. I agree with those reasons and the order proposed.
 AB 1 14 ll11-32.
 AB 1 1-4.
 Appellant’s Outline of Submissions (“AOS”) at .
 AOS at ; Appeal Transcript (“AT”) 1-2 ll17-27.
 AT 1-2 ll30-46.
 At .
 (2002) 212 CLR 124, 128 at , 130-1 at -, 133 at -, 157 at  and 158-9 at -;  HCA 46.
 Ibid 158 at .
 Exhibit 1; AB 2 77 l39.
 Exhibit MFI “C”; AB 2 80 l27.
 (2007) 230 CLR 559;  HCA 30.
 Ibid 562 at , 569 at .
 Ibid 587 at .
 Ibid at .
 Ibid 588 at .
 Ibid 589 at .
 Ibid 562 at .
 AB 2 109 ll40-44.
 AB 2 114 l24.
 AB 2 115 ll20-22.
 AB 2 115 l45 – AB 2 116 l4.
 AB 2 118 ll33-44.
 AB 2 119 ll3-4.
 AB 2 119 ll18-24.
 AB 2 126 ll7-41.
 AT 1-10 ll31-46 and AT 1-13 ll11-15.
 AB 2 107 ll12-13.
 AB 2 157 ll26-41.
 AB 2 126 ll7-9.
 Ibid ll16-17.
 Ibid ll35-36.
 AB 2 129 l43 – AB 2 130 l2.
 AB 2 130 ll37-43.
 AB 1 50 ll25-27.
 AB 1 31 l28 – AB 1 34 l36.
 AB 1 34 ll43-45.
 AB 2 177 l44 – AB 2 178 l9.
 AB 1 38 ll25-36.
 AB 2 160 ll38-39.
 Ibid ll41-46.
 AB 2 162 ll23-24.
 AB 2 164 ll37-38.
 AOS at . It was acknowledged by the appellant that legitimate lines of defence that were available were pursued by Mr Winning; ibid.
 AOS at .
 Ibid at .
 Rule 21.4.
 AOS at .
 Ibid at .
 Respondent’s Outline of Submissions (“ROS”) at , .
 Ibid at .
 Ibid at .
 Ibid at -.
- Published Case Name:
R v Thomas
- Shortened Case Name:
R v Thomas
 QCA 37
Gotterson JA, Morrison JA, Henry J
05 Mar 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC8/18 (No Citation)||28 May 2018||Date of Conviction (Burnett DCJ).|
|Appeal Determined (QCA)|| QCA 37||05 Mar 2019||Appeal against conviction dismissed: Gotterson and Morrison JJA and Henry J.|