R v Wands[2021] QCA 238

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P AND MULLINS JA:  The appellant was convicted of one count of using electronic communication to procure a child under the age of 16 years, one count of possessing child exploitation material, 33 counts of indecent treatment of a child under the age of 16 years and one Commonwealth count of using a carriage service to access child pornography material.  He appeals against his convictions on the basis that there has been a miscarriage of justice occasioned by the improper admission of evidence of discreditable conduct (Ground 1) or unfairness in the prosecutor’s closing address (Ground 2).
2. [2]
   In the period between 5 May 2016 and 9 June 2016, the appellant, then aged 23 years, engaged in lengthy email and text conversations, exchanged images and took part in two internet video calls with a 14 year old girl in Scotland.  Some of the conversations and images were of a sexual nature.  Due to the sexual nature of some of the images and conversations and complainant L’s age, at 14 years, the internet communications themselves, which were proved in evidence, would, subject to any defence, have established the charges on the indictment.^[1]  However, it was a defence for the appellant to prove, on the balance of probabilities, that he believed on reasonable grounds that L was at least 16 years old.^[2]

The Communications

3. [3]
   The appellant entered an internet chat room and was, it appears, randomly linked with L who was a 14 year old girl living in Scotland.  There is no independent record of what was said during the initial contact between the appellant and L.  Other communications between the appellant and L were recorded.
4. [4]
   L swore that she told the appellant that she was 14 years of age at an early point in their communications whereas the appellant swore that L told him that she was 16 years of age.  The sole issue in the trial was whether or not the appellant had proved on the balance of probabilities that he had a reasonable belief that L was 16 years of age at the time of the communications.
5. [5]
   The appellant gave evidence that he  believed that L was 16 years old not only because she had told him but also because of other things she had said.  This included an email conversation on 15 May 2016 which relevantly records:

Appellant: “u [sic] wouldn’t have a car licence over there do you?? Not sure how it works…”

L: “A car licence as in the thing that says your [sic] aloud [sic] to drive.”

Appellant: “Ha ha yes that thing.”

L: “Well I dont [sic] have one yet, not old enough.”

Appellant:  “Oh ok, I wasn’t sure…”

L: “I have to 17 [sic]. Do you have one?”

Appellant:  “Oh okay, not long yes I do. Love going on small road trips, ha ha so relaxing.”

L: “Nope not long to go. What type of car do you have?”

6. [6]
   The appellant submitted that this supported his belief that L was 16 years old.
7. [7]
   Both the appellant and L lied about various matters.  The appellant’s lies, as shown on the electronic communications, were:

• He told L that he was a 20 year old university student named Jarred Wanders working as a bartender and studying criminology.
• He told L he was not married.
• He sent a picture of a young man to L saying that it was a picture of himself.
• He told police during a search of his house that one email account which had been used during the offences was an account that he had not used since high school.
• He told police that he had ceased contact with L.

8. [8]
   L also admitted to telling lies, including:

• She told her mother she was communicating with a 17 year old.
• She told police she had not initiated any sexualised chats with the appellant.
• She told police she had only ever sent him a drawing and had “never sent a picture of myself”.
• She claimed to police that it was unexpected when the appellant had sent sexual pictures to her.
• She told police she had ignored a request from the appellant for a naked picture and instead “deleted the whole chat again”.
• She lied to police about the extent to which she had lied to her mother.
• She maintained a false version that she had given to police in 2016 until 23 August 2018 when a Crown Prosecutor showed her an Excel document setting out the internet chats which showed she had lied to police in 2016 and it was only when confronted with that evidence that she admitted she had lied to police.

Ground 1 of the Appeal

9. [9]
   The appellant submits that the learned primary judge erred in permitting questions to be asked about his failure to comply with ethical standards imposed upon teachers.
10. [10]
    In cross-examination the prosecutor asked:

“Now, as a part of being a teacher, do you have to be part of the College of Teachers or something of that sort?”

11. [11]
    Defence counsel objected on the basis of relevance but the learned trial judge overruled the objection.
12. [12]
    There was the following exchange:

Prosecutor: “You did that, didn’t you, because you knew it would be inappropriate to have contact with students online?”

Appellant: “At the time – well – in particular students that I was teaching, yes.”

Prosecutor: “I suggest you knew that it would be wrong to have contact online with any student in a sexually explicit way.”

Appellant: “At the time, yes.”

Prosecutor: “Yet you still communicated with L in the way we’ve described?”

Appellant: “Yes.”

Prosecutor: “Despite knowing she was a school student?”

Appellant: “Yes.”

Prosecutor:  “And you did that despite knowing that the guidance provided by the College of Teachers about inappropriate and appropriate conduct with students?”

Appellant: “Yep.”

Prosecutor: “You knew your communication with L was wrong, didn’t you, Mr Wands?”

Appellant: “Yes I did.”

13. [13]
    The appellant submits that the trial miscarried because this constituted cross-examination of the appellant about his bad character without seeking the court’s permission pursuant to s 15(3) of the Evidence Act 1977 (Qld).  He argued that the prosecutor’s questions about the appellant’s engaging in sexualised communications with a child, whilst his wife was asleep in bed, and in breach of the guidelines provided by the “College of Teachers”, were questions directed to show his bad character.
14. [14]
    It is not unusual for an accused person to admit, or even to assert, his or her own bad character as part of a defence strategy.  For example, in the days when it was common for police to offer evidence of verbal confessions said to have been made voluntarily, an accused might admit to a lengthy criminal history to support a submission that, with such experience, the accused was unlikely to have made the alleged confession.^[3]
15. [15]
    In this case the appellant could hardly have denied at the trial that he had been communicating with L in the way alleged.  He had admitted as much to the police who interviewed him.  Also, the Crown was able to prove the communications beyond any doubt and, probably for these reasons, the appellant formally admitted them.  Consequently, it was the Crown case that the appellant, who was a school teacher, communicated in sexual terms with L, a schoolgirl, while deceiving L about his age, identity and looks.  As a result, whether or not he elected to give evidence so as to open himself up to cross-examination, the appellant’s sexual immorality as a man and as a teacher was before the jury.  His defence was not to deny what he had done but to assert that, immoral though he might be to an extent, he was not criminally responsible because he did not know that L was only 14 years old.  The case therefore centred on the appellant’s credibility and that of L.
16. [16]
    While it is commonplace to cross-examine about discreditable acts in order to impair a witness’s credit, in criminal proceedings there is an important restriction upon this practice.  Sections 15(2) and (3) of the Evidence Act 1977 provide:

“(2) Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless—

1. (a)
   the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged;

2. (b)
   the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;

3. (c)
   the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding;

4. (d)
   the person has given evidence against any other person charged in that criminal proceeding.

3. (3)
   A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.”

17. [17]
    This statutory rule reflects a principle of “policy and humanity”^[4] that seeks to ensure against injustice being inflicted upon an accused.  It does so by denying the usual right to cross-examine as to credit by reference to previous bad character because of the danger of propensity reasoning.  The right to cross-examine about an accused’s bad character is therefore subject to the cross-examiner justifying that course by satisfying one of the statutory exceptions and, even then, it remains subject to the judge’s discretion to forbid the intended questions.
18. [18]
    In this case the impugned question concerning a breach of the ethical rules of the teaching profession went to the appellant’s bad character.  However, the appellant had already admitted, in answer to a question in cross-examination, that he knew that it would be wrong to have contact online with any student in a sexually explicit way.  So much was implicitly obvious anyway.  The question to which objection was taken was intended, therefore, to emphasise the depth of the appellant’s admitted lack of moral standards by demonstrating an additional moral dimension to his misconduct.
19. [19]
    The prohibition in s 15 of the Evidence Act prevents the asking of questions “tending to show that the person … is of bad character”.  In this context the expression “tending to show” means “tending to reveal”.^[5]  The appellant’s bad sexual morals were something his admissions had already demonstrated and so the question about his conduct constituting a breach of professional standards as well as general moral standards revealed nothing new.  Its evident purpose was a forensic one: to emphasise his lack of credibility by pointing to another facet of the same immoral conduct.  There was, therefore, no contravention of the restriction in s 15 of the Act.

Ground 2 of the Appeal

20. [20]
    The appellant identified three submissions in the Crown Prosecutor’s closing address which he submitted were impermissible and which caused a miscarriage of justice.
21. [21]
    After the defence case had closed, the learned judge invited submissions about directions that should be included in summing up.  The prosecutor specifically sought a direction that certain lies told by the appellant “could amount to Edwards lies”.^[6]
22. [22]
    Her Honour ruled that the appellant’s lies could only be used to assess the appellant’s credit and could not be relied upon to establish his consciousness of guilt.  Despite this ruling the prosecutor did precisely the opposite in her address to the jury, submitting that the appellant “...was lying because he knew his conduct was criminal.”  The submission was an improper one and should not have been made.  However, after counsel’s closing addresses and before the summing up began, the prosecutor acknowledged the error, defence counsel sought a direction in relation to the submission and the learned judge directed the jury accordingly.  Her Honour said:

“Now, in relation to those lies, there was some suggestion by the Prosecutor that he did that because he was, in effect, trying to hide the fact that he knew she was 14. Ladies and gentlemen, I ask you not to treat the lies in that fashion simply because there are many reasons why people might lie. Obviously, he was not expecting the police to come knocking on his door that particular day. He was with his wife, and on any version of events he was doing this behind his wife’s back and clearly would not have wanted his wife to know about it. So he has admitted that they are lies.

You will make up your own mind about whether he was telling lies, but given that he has said he was deliberately lying, you might not have any trouble with that. That obviously is going to affect his credibility, and particularly in circumstances where you have to make an assessment of his credibility to decide whether he has proven his defence, but you must bear in mind this warning. Do not follow a process of reasoning to the effect that just because he has shown to have told a lie about something, that that is evidence of guilt because in this case, given the circumstances in which he has talking to the police, it may well have been to conceal disgraceful conduct when his wife could have heard what was happening or out of panic or confusion or something like that. So if you think that there is or may be some innocent explanation for his lies, then you should take no notice of them, but, of course, the Crown says that they go to affect his credit, and his credit is important in this case because he has the burden of proving his defence.”

23. [23]
    Defence counsel sought no redirection and there is no reason to think that the jury acted otherwise than in accordance with her Honour’s direction.  There was no miscarriage.
24. [24]
    The second submission that the appellant submitted was improper was a submission that the complainant’s lies to police could have been explained by her wish to protect the appellant.  The difficulty with that submission was that it was barely supported by L’s own evidence.  However, whilst it may be accepted that this submission was unsound, little turned on that single issue and no miscarriage resulted.
25. [25]
    The third submission made by the Crown which the appellant submitted occasioned a miscarriage of justice is closely aligned with appeal Ground 1.  The prosecutor submitted that the appellant’s evidence that he had stopped communicating with L when he realised that she was 16 years old should be disbelieved because the appellant was an immoral person who had acted contrary to the ethics of a schoolteacher by engaging in a sexually explicit communication with a school student “instructing her to do certain things to her body, all while his wife was asleep he says in the room with him”.
26. [26]
    In R v Gathercole [2016] QCA 336, McMurdo P (with whom Morrison JA and Atkinson J agreed) said:^[7]

“It is well established that in conducting an Australian criminal trial, which is both accusatorial and adversarial, the prosecutor has a duty not to obtain a conviction at any cost but to act as a minister of justice. The prosecutor’s role is to place before the jury the evidence the prosecution considers credible and to make firm and fair submissions consistent with that evidence but without any consideration for winning or losing. The central principle is that the prosecution case must be presented with fairness to the accused. Unfairness may arise from the manner in which the prosecutor addresses the jury. The fact that, as here, no objection was taken at trial to what is alleged on appeal to be unfair requires the appellate court to carefully examine what happened at trial to determine whether there has been unfairness. If so, the appellate court must determine whether, as a result of the unfairness, the appellant may have lost a chance which was fairly open of being acquitted. If so, there has been a miscarriage of justice.”

(Citations omitted.)

27. [27]
    The primary judge directed the jury:

“You should dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts on the whole of the evidence. So in cases like this we often say that this is a Court of law, not a Court of morals. I think Mr Munsie has already said that. There are many things that people do in life that are not particularly moral behaviour, or good behaviour, that are not illegal.

So if Mr Wands was playing up on his wife, which he clearly was in this, or if he was not acting as a good teacher might, all those things are irrelevant to whether he is guilty of the charges, really.”

28. [28]
    The prosecutor’s submission did not conflict with the proposition of law that is implicit in this direction.  Her submission did not urge recourse to propensity reasoning.  Rather, she urged the jury to reject the appellant’s evidence about his state of mind because, as a person who lacked morality he was unworthy of credit.  That was a legitimate (and conventional) argument about credibility.
29. [29]
    The appeal should be dismissed.

30. [30]
    CROW J:  I agree with the President and Mullins JA that the appeal ought to be dismissed and I agree that there was no contravention of the restriction in s 15 of the Evidence Act 1977.
31. [31]
    The legislative history of s 15 (and its predecessors) is important to the disposition of this appeal.  As explained by Viscount Simonds in Jones v Director of Public Prosecutions [1962] AC 635, the predecessor to s 15 of the Evidence Act 1977 (s 1 of the Criminal Evidence Act 1898 (No 61 & 62 Vict. c. 36) introduced a significant change in the criminal law, in that it “for the first time [made] an accused person a competent witness on his trial” and provided what “questions he may be asked…and then what questions he may not be asked”.^[8]
32. [32]
    Lord Reid said in Jones v Director of Public Prosecutions:^[9]

“In my judgment ‘tends to show’ means tends to suggest to the jury. But the crucial point in the present case is whether the questions are to be considered in isolation or whether they are to be considered in the light of all that had gone before them at the trial. If the questions or line of questioning has to be considered in isolation I think that the question with which this appeal is concerned would tend to show at least that the accused had previously been charged with an offence. The jury would be likely to jump on that conclusion, if this was the first they had heard of this matter. But I do not think that the questions ought to be considered in isolation. If the test is the effect the questions would be likely to have on the minds of the jury that necessarily implies that one must have regard to what the jury had already heard. If the jury already knew that the accused had been charged with an offence, a question inferring that he had been charged would add nothing and it would be absurd to prohibit it. If the obvious purpose of this proviso is to protect the accused from possible prejudice, as I think it is, then ‘show’ must mean ‘reveal,’ because it is only a revelation of something new which could cause such prejudice.”

(Emphasis added.)

33. [33]
    In the present case, the appellant had given evidence that he was a teacher and that he had bad sexual morals by engaging in the sexual conversations with the 16-year-old complainant.  Whilst it may be accepted that the challenged questions, namely whether such conduct was in breach of the guidance provided by the College of Teachers, may have not been something the jury specifically knew before, it is correct to characterise that as pointing to another facet of the same immoral conduct.
34. [34]
    Section 15 of the Evidence Act 1977 provides a “shield”^[10] to an accused person to ward against propensity reasoning by preventing a jury from receiving evidence of the accused’s past convictions or bad character.  This “shield” ensures that that a jury decides guilt based on relevant evidence, rather than the accused’s past character or convictions.
35. [35]
    That an accused may lower the “shield” provided by s 15 and introduce evidence of his own bad character can occur in criminal trials in a variety of circumstances.^[11]  In this case, due to the nature of the offending, the appellant at first instance lowered his shield and introduced evidence of his own bad character.
36. [36]
    As Jerrard JA said, with respect to Jones v Director of Public Prosecutions, in R v Isherwood:^[12]

“[16] …What was stressed there was that the challenged questions must be regarded, not in isolation, but in context and in relation to the evidence already given.”

37. [37]
    I therefore agree with the President and Mullins JA that, viewed in the context and in relation to the evidence already given, the challenged questions did not reveal to the jury that the appellant was of bad moral character.  The appellant had already introduced evidence of his bad moral character, the questions asked would have added “nothing” to the jury’s perception of the appellant’s moral character.