R v MDI[2020] QCA 244

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
2. [2]
   McMURDO JA:  After a trial by a jury in the District Court, the appellant was convicted of two counts of indecent treatment of children under 16 years who were under his care, by exposing them to an indecent act by another person.  The children were his son (R) and his partner’s daughter (D).  R was his son from a previous marriage.
3. [3]
   The offences were alleged to have occurred between December 2001 and July 2002.  R was then aged 15 years, and D was a few months younger.  The offences occurred in the same incident, in the house where they lived with the appellant and D’s mother (M).  From that house, M conducted a massage business which often involved the masturbation of male clients.  The prosecution case was that the appellant made the two children look through a window and watch M doing so.
4. [4]
   The appellant was sentenced, on each count, to a term of nine months’ imprisonment, wholly suspended with an operational period of 18 months.
5. [5]
   In the same trial, the appellant was tried on eleven other charges, each involving an offence committed against D.  Nine of those charges involved sexual misconduct against D, including a charge that from early 1996 until the beginning of 2003, he maintained an unlawful sexual relationship with her.  He was also charged with one count of a common assault against D, and another count of an assault occasioning bodily harm to her.  The jury acquitted the appellant on all of those charges.
6. [6]
   The appellant gave evidence at his trial.  He did not dispute that he and D had a sexual relationship; but he said that this had commenced only after she had turned 16.  More than 10 years later, and shortly after that relationship had ended, D complained of the appellant’s conduct which became the subject of the charges.  Her pre-recorded evidence was ultimately given in August 2018, and she was recalled during the five day trial in June 2019.
7. [7]
   The appellant challenges his convictions on three grounds.  The first is that the trial judge erred in not providing a direction in all respects which complied with Longman v The Queen.^[1]  The second is that there was a miscarriage of justice because relevant evidence was not led at the trial.  This was evidence to the effect that the family lived at the house, where this incident was alleged to have occurred, for only about five or six weeks, from which it is said that it was unlikely that the incident occurred.  The third ground is that the verdicts were unreasonable, or cannot be supported having regard to the evidence.

The evidence at the trial

8. [8]
   The appellant and M were in a relationship for about 10 years from the early 1990s.  The family, which at the relevant time comprised the appellant, his son R, M, her daughter D and her other child who was a younger brother of D, frequently moved house.  The couple operated a cabaret show, and there was also the massage business.
9. [9]
   D testified about sexual offending against her from late 1996.  She said that her sexual relationship with the appellant continued after she turned 16, and indeed until the beginning of 2017, when she was 30.  Not long after then, D revealed to R that she had been in this relationship.  R gave evidence of his shock at that disclosure.
10. [10]
    There was a formal admission that the family had moved to the house, where this incident was alleged to have occurred, by 31 December 2001.
11. [11]
    It is unnecessary to discuss the evidence which was relevant to the counts on which the appellant was acquitted.  The evidence relevant to the present incident was given in the prosecution case by D and R, and in the defence case by the appellant.

R’s evidence

12. [12]
    In his evidence in chief, R was asked whether there was any business being conducted by the family at the subject house, and he replied that it was “a massage business”.  He was asked what he saw of the business actually occurring, to which he answered:

“I would view my, kind of, step-mother [M], giving hand jobs to clients.  So I used to watch this with my – I call her my sister, but my best friend [D].”

13. [13]
    His evidence in chief continued:

“Okay. Now, how did you come to be seeing that with [D]?---My father did – he would go down and watch from a window, and then basically tell us to come down. We didn’t want to. It was – it kind of seemed normal at the time, but obviously we knew it wasn’t right.

Okay. When you said he would sort of tell you, do you remember what he would say to you?---Basically he would say, “Come on. Come down. Watch this.” And then, like, he’d be getting pleasure from it. And we’d be like, “Nah, nah, nah.” And then he’d be like, “Yeah, come on.” And then we’d just peek through, like, a little crack, like, through the blinds.

Okay. How did you know where to look?---Because he was there and he showed us, and it was pretty obvious to see.

Okay. And how far away was he from you were looking through that crack?---As close as this TV screen is.

Okay. And apart from his invitation, if you will, did you want to do that?---No.

Would you have done that?---No.”

14. [14]
    The prosecutor asked R how often it was that D had been present for these incidents, to which R answered:

“Well, it was only if we were, kind of, maybe going to the pool or something like that, but I would say – I’m pretty sure I put in my statement as well that I think it happened about five times.”

15. [15]
    In cross-examination, R rejected the suggestion that the appellant had never directed him to look at the masturbation of men by M.  He also rejected the suggestion that he had been looking at it of his own volition, and that he had been reprimanded by the appellant for doing so.

D’s evidence

16. [16]
    In evidence in chief, D described the house as being “quite secluded” with a number of pathways around it, and an area between it and a bungalow in which “[the appellant] made myself and [R] go out and watch my mother doing the services on the men.”
17. [17]
    D gave this evidence in chief:

“Okay. So when you say made you and [R], what do you mean by that?---He forced us outside. So “Come with me. Come with me”, and we’re like, “What? What?” And he – there were – the room had like venetian style blinds, and they were up a bit. And he made us look in the window to show us what was happening.

And what did you see?---My mum was dressed in a blonde bob wig and white lingerie, and there was a middle aged man on the table she was massaging and wanking him.

The male?---Yes.

Okay. And could you – what part of the male could you see?---I could see all – all of it. He was naked. We could see everything.

Okay. And do you remember what state his penis was in?---It was erect and had a condom.

And how long did you stay there for?---Not long. I didn’t want to look, and I looked away [indistinct] I don’t want to look at that.

And where was [R] when you were looking at that?---He was there too, and he wasn’t – he didn’t want to look at it either.

Okay?---And we had to be quiet not to alert anything, but we were disgusted.

How did you know you had to be quiet?---Because he was telling us to be quiet.

Okay?---And we knew that she was down there with someone.

Okay. Do you know how many times that happened, that is, you were moved out to watch?---Don’t recall.”

18. [18]
    In cross-examination, she rejected the suggestion that there was no occasion when the appellant made her and R watch any sexual activity between her mother and a client.  She also rejected the suggestion that there was an occasion when the appellant had caught R looking at such an act, and had yelled at him for doing so.

The appellant’s evidence

19. [19]
    In examination in chief, the appellant gave this evidence:

“All right. Were you aware of what type of massaging was being offered by [M] at the time it was occurring?---I thought it was raunchy but that’s all.

All right. And when you say raunchy, what do you mean by that?---The ads she was putting out were raunchy ads.

All right. Now, at a point, did you discover what was occurring in the massage room?---Yes.

What – what did you discover?---I saw my son peeping through the window and I looked over and saw what he was looking at and I peered in and I saw what he saw. I got stuck into him verbally. And that was the end of that.

All right. Well, what did – did you see what he was observing?---Yes.

What did you see?---I saw a bloke laying on the massage bed and he was being pulled off.

All right. And who was pulling him off?---[M].

All right. As a result of seeing that, did you have any conversation with anyone?---Yes.

Who did you speak to?---I spoke to [R] first and I told – that was the end of the massage.

Yeah. All right. Well, what did you say to [R]?---I can’t remember. I was pretty angry but I yelled at him and probably called him a few choice names.

All right. Did you speak to anyone else about it? You said you spoke to [R] and you said that was the end of the massage. How did the - - -?---I spoke to - - -

- - - massage end?---Spoke to [M] and that was – said that stopped.”

20. [20]
    In cross-examination there was this evidence:

“Right. Now, then, if we go to this occasion when you saw [R] peeking?---Mmm.

And you yelled at him. And why did you yell at him?---Because he’s – he was doing a little perverted thing looking in there and it was wrong.

Okay. And did you yell at him there and then?---I believe so, yeah. I pulled him aside and yelled at him.

Right. And did you go in and break up what was happening inside?---From what I could see, it was just about finished. They were sort of - - -

Did you go in and break up what was going on inside?---No, it was already – it was already done.

Did you tell the man to leave?---I didn’t have to. He was basically leaving.

But surely you would have confronted him, so he wouldn’t come back to your family home and do those sort of things?---I felt at the time that it would have caused more trouble if I got into a fight with the bloke or something happened in there with the children and that. I was the only person there. I just – I made a judgment call and I stand by it.

All right. So the reality is that you didn’t yell at [R] for that at all, did you?---Yes, I did.

You didn’t confront the man about that at all because you actually showed [R] what was happening?---No, I didn’t confront the man because I felt it was the appropriate thing to do at the time.

And in fact you showed [R] and [D] what was happening at that time, didn’t you?---No. I don’t remember [D] actually being in that instance. It was just [R].

What I’m putting to you is that [D] was there, as was [R], and you’d led them to the point, so that they could see what was happening in the room?---No, I disagree with that absolutely and totally.

You never did yell at [R]?---I did.”

Unreasonable verdicts

21. [21]
    The trial judge discussed with counsel his proposed directions to the jury.  His Honour suggested that because these two counts were alleged to involve the same incident, and because, in his Honour’s view, R could not identify a specific occasion when the incident occurred, the proof of both counts depended upon the jury accepting D’s evidence.  However, his Honour suggested, R’s evidence could be used as supportive of her evidence.  Both counsel agreed, and the judge directed the jury accordingly.  Neither side now criticises that direction, and the respondent accepts that the reasonableness of the verdicts must be considered upon the premise that the jury had to accept D’s evidence about the incident in order to convict the appellant on these charges.
22. [22]
    It does not follow, however, that D’s evidence is to be assessed without the support which was provided by R’s evidence.  A doubt about D’s evidence, if considered alone, could be dispelled by the support of R’s evidence.  The distinguishing feature of these counts, from the counts on which the jury acquitted the appellant, could be explained by the weight given to R’s evidence.
23. [23]
    Counsel for the appellant advanced five matters about the evidence, from which it was argued that it was not open to the jury to convict upon these two counts.
24. [24]
    The first is what is said to be a significant difference between the number of times that the appellant engaged in this conduct, on the respective versions of D and R.  However the versions were not markedly inconsistent.  D’s evidence in chief, on this subject, began as an apparent reference to a particular incident.  The relevant passages are set out above at [17].  However D then was asked “how many times that happened, that is, you were moved out to watch?”  To which she replied, “Don’t recall”.  Her evidence was not that there was only one incident of this kind.  R’s evidence was that there was more than one such incident.  Somewhat tentatively, he said that he thought that it had happened “about five times”.
25. [25]
    The second of the appellant’s points is a suggested lack of detail, in the testimony of both D and R, “about how they were made to watch through the window”.  Again, their evidence has been set out earlier.  There was no remarkable lack of specificity in their evidence which ought to have concerned the jury.
26. [26]
    The third matter is a suggested conflict between the evidence of D, in saying that there was a condom on the man, and R’s evidence which did not mention that detail.  This is hardly a conflict between the respective versions.  One teenager may have noticed that detail although the other did not.  And each may have witnessed it, with one of them forgetting it with the passage of so much time.
27. [27]
    The fourth point relies on a suggested inconsistency between D’s evidence and her mother’s evidence.  D said that at this time, the appellant was saying to her that he was going to leave her mother, but that he had said to her that, because M had become pregnant, he would not do so.  D’s evidence was that the appellant said that “it was her chance to redeem herself”.  M’s evidence was that the appellant required her to sleep in another bedroom when he found out that she was pregnant.  This is not an inconsistency between D’s evidence and M’s evidence.  For example, the appellant may have said something to D, which was not the truth of his relationship with her mother.  And each piece of evidence suggests, as M went on to say, that M’s relationship with the appellant was deteriorating by this stage.
28. [28]
    The remaining point is that D’s evidence was not accepted on all of the other counts.  The answer to this point has been discussed already.  With the support of R’s evidence, it was open to the jury to find that the specific occasion, described by D, did occur, and to convict the appellant on these counts.
29. [29]
    The submissions for the appellant refer to other evidence which contradicted D’s evidence on those other counts.  There is no distinct ground of appeal which complains of an inconsistency in the verdicts.

The Longman direction

30. [30]
    It is necessary to set out in full the relevant direction which was given to the jury:

“[T]he next important direction that I must give you is in relation to the issue of delay that is involved here, the time that is involved in consideration of the allegations. The complainant’s long delay in reporting the incidents which she says happened as early as when she was nine or 10, in 1996 or 1997. And that, of course, is over 20 years ago now. There are other allegations that are made at a later point in time. You understand that. But nevertheless, there are many years involved in respect of all of them. The important consequence that you must have regard to this: that her evidence cannot be adequately tested or met after the passage of so many years, the defendant having lost, by reason of that delay, means of testing and meeting her allegations that would otherwise have been available.

Now perhaps the simplest example of that proposition in the context of this case is to consider the different position that may have been available to the defendant if count 2, that allegation, had been made relatively soon after the alleged occurrence of it and the ability then to examine the circumstances as to when a birthday party was had, what day of the week it was, whether the child was at school the next day or not and generally, to examine the circumstances surrounding that matter. So that is the simplest example of the import of what I am drawing to your attention.

By the delay, the defendant has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaints instead been made known to the defendant soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to look to call at the trial evidence throwing doubt on the complainant’s story or confirming the defendant’s denial.

So those must be noted as opportunities lost by the delay. And you must note that the fairness of the trial, as the proper way to prove or challenge the accusation, has necessarily been impaired by such long delay. So I warn you that it would be dangerous to convict on the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.

In terms of circumstances relevant to its evaluation, well, you would appreciate that I have already touched on some such things. But you should bear in mind that you will need to have regard to issues such as the emergence of her complaint after separation and the circumstances of that, that except in relation to counts 11 and 12, there is not suggested to be any direct corroboration of any act. That depends, of course, on what you make of [R’s] evidence, direct corroboration being someone who says they were there and observed what happened, for instance. There is the lack of some precise identification of the occasions when occurrences occurred. Hence you have the reference to time periods, sometimes over matters of years, and reference to particular residences. You, of course, have such things as the reference to the admission as to the school records, specifically in relation to count 2, the admission about what [was] said to a DOCS officer in 2000.  …

On the other hand, you need to have regard to the fact that you are asked to seek and see, not direct support, but some indirect support, in the – for the complainant’s allegations, as far as you assess the evidence of her grandparents, … , as to the observation of the child going into the bedroom, [Mr B] as to the interactions that he described seeing between them in the carpark and generally as to the circumstances of opportunity to have committed the offences. And in that regard, there is [the grandparents’] evidence about, for instance, confirming that she didn’t come for the visit at Cairns and neither did the defendant. So there are those issues to take into account when you are assessing what I just told you and the need to take into account that warning.

As I have said, you must take all those matters into account and you must have regard to the danger of acting upon the complainant’s evidence in the circumstances, unless after scrutinising it with great care and considering the circumstances relevant to its evaluation, paying heed to the warning, you are satisfied beyond reasonable doubt of its truth and accuracy.”

31. [31]
    In effect, there are two complaints made by the appellant within this ground of appeal.  It is said that the jury may not have understood that the directions and the warning which were given related to these two counts.  Further, if the jury did understand the directions and warning to apply to these counts, the jury may not have understood that it was necessary to apply the same scrutiny and care in their consideration of R’s evidence.
32. [32]
    It is submitted, correctly, that the fact that D’s evidence was corroborated by R’s evidence did not relieve the judge of the requirement to provide a Longman direction.^[2]
33. [33]
    However the trial judge did not exempt these two counts from his directions and warning, as the appellant’s argument suggests.  His Honour told the jury to bear in mind several issues, one being the absence of any direct corroboration of any act, except in relation to these counts.  That absence of corroboration on the other counts was relevant; but his Honour was not indicating that his directions, about the effect of delay upon the appellant’s ability to defend the charges, was irrelevant for these two counts.
34. [34]
    As to the second point, there is no real prospect that the jury had regard to what was said about delay, when assessing D’s evidence, but not when assessing R’s evidence at the same time, about conduct to which they had been subjected together.
35. [35]
    This ground of appeal must be rejected.

Further evidence

36. [36]
    The appellant seeks leave to adduce further evidence, consisting of four affidavits.  The subject of the evidence is the period during which the family lived at the address where these offences allegedly occurred.  The period charged on the indictment was from 31 December 2001 until 12 July 2002.  The effect of the evidence is that the period was a maximum of six weeks, during which there were performances of the show which were being conducted five or six times a week.  The significance of this evidence, had it been adduced at the trial, is said to be that it would have shown that the appellant was so busy during the period, that it diminished the probability that he directed the children to do what, on their evidence, they had done.
37. [37]
    This is new or further evidence which was available at the trial or would with reasonable diligence have been discovered.  Fresh evidence will be admitted on an appeal against conviction when there is a significant possibility that in the light of all of the admissible evidence, both the fresh evidence and the evidence given at the trial, a jury acting reasonably would have acquitted.^[3]  However there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh, where to refuse to do so would result in a miscarriage of justice.^[4]
38. [38]
    When considered with the evidence tendered at the trial, this new evidence does not show the appellant to be innocent of these two charges, and nor does it raise a reasonable doubt as to his guilt.  Nor is this a case where the new or further evidence reveals a likelihood that the jury would have returned a verdict of not guilty, had the evidence been tendered at the trial.
39. [39]
    Upon the appellant’s own evidence, as well as the evidence of M, the massage business was being conducted from this house and it frequently involved the masturbation of male clients.  And, the appellant was prepared to say that there was an occasion in which R was watching such an event, when the family lived at this house.  It was not unlikely that even within that relatively short period, there were occasions in which this did occur with male clients, and one or more of those occasions were witnessed by the children at the appellant’s direction.
40. [40]
    The application to adduce the evidence should be refused, and this ground of appeal must fail.

Order

41. [41]
    I would order that the appeal against the convictions on counts 11 and 12 on the indictment be dismissed.
42. [42]
    BRADLEY J:  I agree with the reasons for judgment of McMurdo JA and the order his Honour proposes.