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R v IH[2021] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v IH [2021] QCA 247

PARTIES:

R

v

IH

(appellant)

FILE NO/S:

CA No 294 of 2020

DC No 2947 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 October 2020 (Porter QC DCJ)

DELIVERED ON:

19 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2021

JUDGES:

Holmes CJ and Bond JA and North J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted by jury of one count of maintaining a relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant in re-examination about overhearing a telephone call immediately before her disclosure of the offending to her mother did not arise from cross-examination and was not apt to qualify facts prejudicial to the prosecution – whether the evidence permissibly clarified matters raised in cross-examination – whether the evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the evidence was properly admitted – whether any miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted by jury of one count of maintaining a relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant’s mother about receiving and asking the complainant about a text message alleging a sexual assault against her, followed by the complainant’s first disclosure of the offending, was outside the ambit of s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 or otherwise ought to have been excluded as irrelevant or unfairly prejudicial – where s 4A(2) renders admissible evidence of ‘how and when’ a preliminary complaint was made – whether the mother’s evidence, apart from one detail, constituted admissible context for the preliminary complaint within the terms of s 4A(2) – whether the admissible evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the prejudice arising from the inadmissible detail was cured by direction – whether any miscarriage of justice occurred

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

R v AW [2005] QCA 152, cited

R v Lavery (No 2) (1979) 20 SASR 430, cited

R v Phair [1986] 1 Qd R 136, cited

R v Riera [2011] QCA 77, cited

R v Singleton [1986] 2 Qd R 535, cited

Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40, cited

COUNSEL:

K Prskalo for the appellant

M J Hynes for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  The appellant was convicted by a jury of one count of maintaining a sexual relationship with a child, his step-daughter.  The complainant (to whom I will refer as “B”) gave evidence of various forms of sexual touching and cunnilingus which occurred over a period from 2010 to 2014, when she was aged between ten and 14 years old.  She first disclosed the offending in July 2018, when she was 18 years old.  (At that time, the appellant had been separated from B’s mother for about four years.)  Her mother asked her directly whether the appellant had ever ‘touched’ her and she responded affirmatively.  B made a complaint and statement to the police later that day.
  2. [2]
    The appellant appeals his conviction on the grounds that the admission of inadmissible and prejudicial evidence caused a miscarriage of justice.  The first ground concerns evidence given by B in re-examination, and the second the evidence-in-chief of B’s mother, in each instance about events immediately preceding B’s statement to her mother.  There is a third ground, that a combination of the two caused a miscarriage of justice.

Preliminary complaint evidence:  the legislative provision

  1. [3]
    Section 4A of the Criminal Law (Sexual Offences) Act 1978 says what preliminary complaint evidence may be given and preserves the discretion to exclude it:

4A Evidence of complaint generally admissible

  1. (1)
    This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.
  1. (2)
    Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.
  1. (3)
    Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.”

Preliminary complaint is defined in s 4A(6) as meaning

“…any complaint other than—

  1. (a)
    the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or
  1. (b)
    a complaint made after the complaint mentioned in paragraph (a)”.

Appeal ground 1: the re-examination of the complainant

  1. [4]
    The first ground of appeal is that B’s evidence in re-examination regarding what happened just before her complaint to her mother was wrongly admitted because it either did not arise from cross-examination or was not apt to qualify facts prejudicial to the prosecution.

The context for the re-examination

  1. [5]
    The prosecutor in her opening outlined B’s mother’s evidence of approaching B with the direct question whether the appellant had ever touched her, B’s affirmative answer and their conversation about the details of the offending.  Later, the prosecutor elicited that evidence from the mother, but she did not open or lead any evidence from B about the making of the preliminary complaint.
  2. [6]
    Cross-examination of B established that she had not said anything about the appellant’s conduct to either of her brothers, to a police officer who was the girlfriend of one of her brothers or to her best friend at school, and that some details of her complaint only emerged a fortnight after she made her initial statement to the police.  Photographs showing B with the appellant at various family gatherings were identified by her and tendered, and defence counsel elicited from her that the appellant participated in a number of her school and sporting events, sometimes on her invitation.  B also confirmed that before making her statement to the police, she had become aware the appellant had had affairs during his marriage to her mother.  In fact, she said, she found that out on the very day she made her statement to the police.  B agreed that she discovered the appellant had been seeing a woman named Emily and another named Vanessa, and concurred with the possibility that after the marriage was over, he had had a relationship with a woman named Lisa.
  3. [7]
    This question was asked about the circumstances of the preliminary complaint:

“…it first came out once your mother asked you about it, didn’t it?”

to which B answered “Yes”.  It was put to B that although on her account she had told her mother of the offending, she had not told her mother’s partner when he came home.  When B responded that she had in fact done so, it was put to her that she had failed to say that to the police, to which she answered that she had not realised that it was necessary.

The re-examination of the complainant

  1. [8]
    The passage of re-examination about which the appellant complains unfolded as follows:

“…we’ve heard that you didn’t speak to your best friend or your brothers about these things at the time that they were happening?---Yep.

Why was that?---Like, why did I not tell anyone?

Yes?---Or just in – why did I not tell them specifically?

Well, why didn’t you speak to anyone about it?---Well, it’s not really a conversation you can just be like, “Hey, guess what happened.” Like, it’s – there was many a times where you go, “I should say something,” but it’s not that easy to bring it up or, like – like, it’s – it’s embarrassing in the way that it happened to, like, myself. Like, you – you put yourself in a – like, a – a category, that you’re like, “Oh,” like – yeah. It’s sca – scary in a way, that – yeah. It’s – it’s just not something you can just bring up and be like, ‘Hey, this happened.’ Like, yeah. Just – it’s not that easy to just bring up and it’s – as I said, it’s embarrassing. It’s scary. Like, of that – that feeling of judgment; that, like, someone’s, like, going to look at you a different way because it happened to you.

But you did eventually tell your mother about it, and you were asked in cross-examination and agreed that it first came out when you spoke to your mother?---Yep.

Do you remember when that was?---Yeah. It was the day that she – she got a message from one of the ladies. Mum ended up calling back that lady, I think, or she called her back. And Mum always has the phone on loudspeaker, so, like, a second person can hear it. And so then, yeah, it arose in that conversation. My heart just sank. She obviously finished that conversation. She came in to me and she was like – she asked me. I just was in my room just going, I’ll pretend like nothing has happened. And then she came in and she was like, “Has he ever touched you?” And I just went, okay, well, now is obviously my chance. I said, “Yes,” and then it just went from there.”

Defence counsel’s address

  1. [9]
    In her closing address, defence counsel said that it was “troubling” and “odd” that B had over a number of years not told anyone of the offending, including her best friend, and it was “very convenient” that she had discovered the appellant’s history of affairs on the day she had made her complaint.  The emotions of “rage, anger, distress” experienced by the women in question, B’s mother and B herself were motives which might be relevant in relation to the complaint.

The submissions on the first ground of appeal

  1. [10]
    The appellant submitted that the re-examination should not have occurred.  The cross-examination of B was limited to establishing that it was the mother’s direct question which had resulted in the complaint.  That went no further than what had been opened in relation to the mother’s evidence, but not led from B, and was not, therefore, prejudicial to the prosecution case.  B had not been cross-examined about the circumstances in which she made the preliminary complaint, and it was unnecessary to re-examine her on that matter in order to restore her credit.  While it might have been permissible for the prosecutor to elicit in re-examination an explanation for B’s failure to complain earlier, that had already occurred: she had already explained that she felt embarrassed and scared to bring the matter up.  The fact that, on the day she did complain, she overheard a phone call from a third party did nothing to explain her previous failure to complain.
  2. [11]
    Alternatively, even if it did arise from cross-examination, the evidence was of a kind which, on objection, would probably have been excluded as having a substantial prejudicial effect without being more than moderately probative.  But there was no opportunity to make submissions about the re-examination before it occurred.  The failure to seek the discharge of the jury was not fatal where the inadmissible evidence had produced a miscarriage of justice.
  3. [12]
    The respondent contended that the cross-examination had been designed to suggest that the lateness of the complaint cast doubt on its genuineness.  The questions about the failure to complain earlier and the timing of the preliminary complaint were intended as an attack on her credit and were the subject of defence counsel’s address at trial.  More broadly, the questions about B’s inviting the appellant to events or posing for family photos with him were aimed at establishing the closeness of their relationship and the implausibility of the offending’s having occurred.
  4. [13]
    The re-examination was permissible in order to elicit B’s explanation for the delayed disclosure and the manner of her complaint to her mother, in the form of a response to a direct question.  It was necessary to establish the context in which that conversation occurred, which was her overhearing of the phone call between her mother and another person.  That overheard phone call was, in the terms of s 4A, “evidence of how and when” the complaint was made; it explained B’s recognition that the time had come for disclosure.  Even if the evidence were not strictly admissible or might have been excluded, the question whether its emergence had caused a miscarriage of justice should be answered in the negative.

The boundaries of re-examination

  1. [14]
    In R v Phair,[1] the Court of Criminal Appeal was dealing with what was, effectively, a judge’s ruling that, should questions be asked of a complainant who was the victim of sexual offending by her father in order to establish that there had been a delay in her complaint or that she disliked her father, re-examination would be permitted to establish the reasons for her failure to complain and her attitude to her father.  The court adopted as a correct statement of the law this passage from the judgment of the Full Court of Victoria in Wojcic v Incorporated Nominal Defendant[2]:

“A party, however, is entitled in re-examination to elicit from his witness facts which explain away or qualify facts which have been elicited from the witness in cross-examination and which are themselves prejudicial to the party’s case or the witness’ credit or from which prejudicial inferences could have been drawn”.[3]

  1. [15]
    Wells J, in the South Australian Supreme Court, put the same proposition in slightly different terms in R v Lavery (No 2).[4]  Re-examination was permitted

“…whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in a manor proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents distortion, or an incomplete account, of the truth as the witness is able to present it”.[5]

Walters J in the same case added:

“It is proper for counsel in re-examination to ask suitable questions of the witness to enable him to give a full account or explanation of a matter or transaction which is susceptible of more than one construction.  When the nature of the cross-examination and the effect of the suggestions it contains tend to damage the credit of a witness, I think counsel is entitled to elicit from the witness in re-examination an explanation of the whole of the matter or transaction to which an answer given in cross-examination relates”.[6]

  1. [16]
    In R v Singleton,[7] Macrossan J, while observing that it was not possible to formulate an invariably applicable rule, said that if cross-examination explicitly or by implication substantially affected a witness’ credit in relation to the testimony he had given, it would ordinarily be permissible to seek to restore that credit in examination by exploring

“…the witness’s reason for an attitude revealed or his motive for having acted in a certain way or having made a certain prior statement …”.[8]

The trial judge had the discretion to exclude or restrict the evidence if what was sought to be led was “of no more than moderately probative value” in relation to the facts or the witness’ credit, but its prejudicial effect was substantial.  The exercise of that discretion might depend on the form of the cross-examination.

Discussion: the first ground of appeal

  1. [17]
    The cross-examination of B elicited that she had not taken opportunities to complain when she might have been expected to do so and that it was her mother’s question which produced the complaint; the inference being that the response prompted by the mother was inauthentic and the complaint itself unfounded.  The purpose of the questioning was further illustrated by the suggestion that B had failed to make the same complaint to her mother’s partner shortly after; and there was certainly more than a hint in the cross-examination that the jury would be asked to infer that there was some connection between B’s becoming aware of the appellant’s affairs and her complaint.  This was in a context where it was also clear that the defence would advance a proposition that B’s behaviour in demonstrating apparent enthusiasm for the appellant’s company during the period of the alleged offending made it improbable that it had occurred.
  2. [18]
    The cross-examination rendered relevant B’s state of mind in relation to her readiness to complain to her mother in July 2018, and not earlier.  It served to explain her “motive for having acted in a certain way” and rebut a possible construction of the timing of the complaint as indicating that it was driven by the discovery of the appellant’s infidelity.  It was permissible for the prosecutor to clarify not only why B had not made the complaint earlier, but why she had made it at that particular time.  As defence counsel accepted, B was appropriately asked in re-examination about the reasons for not informing others about her experience when she had the opportunity; but it was also appropriate that she be given the opportunity to explain what was different when her mother asked her about it.  That explanation was, in effect, that from what she overheard of the conversation she formed the perception that her mother had become aware that something had happened.  When she was in the position of being directly asked, rather than having to volunteer an embarrassing account, she decided to take the opportunity.  All of that was legitimate matter for re-examination.
  3. [19]
    The evidence adduced was capable of being prejudicial in that it appeared likely from it that the maker of the overheard phone call had some knowledge of offending by the appellant.  However, it was significantly probative in establishing the circumstances surrounding B’s preliminary complaint, so as to explain her response, remove any adverse construction that might be placed on the timing of her complaint, and restore her credit.  It was not evidence that should have been excluded had there been an objection.

Appeal ground 2: the mother’s evidence in relation to the preliminary complaint

  1. [20]
    The appellant contended that B’s mother’s testimony regarding matters preceding the making of the preliminary complaint was outside the ambit of s 4A(2) of the Criminal Law (Sexual Offences) Act or otherwise ought to have been excluded.

The mother’s evidence about how the preliminary complaint arose

  1. [21]
    The relevant portion of the evidence was elicited in this way:

“Now, on the 27th of June 2018, were you contacted by a woman who introduced herself as Vanessa?---Yes, I was.

And whether it be on the phone or text message, you had discussions with her. I’m not asking what those conversations were about, but you had contact from this person?---Yes.

And as a result of that, did you then walk into your daughter, [B’s], bedroom and ask her something?---Yes, I did.

And, in fact, did you ask her whether [the appellant] had eve (sic) touched her?---Correct.

What happened when you asked her that?---I read the text message out to [B]. She did not reply. Like, she didn’t move or anything. I reread the text message to her and she just, kind of, grunted at me. Like, was kind of, “Mmm.” And then I remember reading it, and I said, “[B], this text message is saying that [the appellant] has touched you.” I said, “Is that correct?” And she said, “Yes.” And – so from there, that’s when – I remember saying to her, “Where was I?” And she said, “You were always home.” And I said, “Why didn’t I know about it?” And she said, “I don’t know, Mum. I’m sorry.” And then she started crying, and I just started pacing, thinking I don’t know what to do. So I rang my partner at the time, because he was on his way home, and then he got home. And then we – from then, I – that’s when I then called the Caboolture Police Station, and they asked for [B] to come straight up.

And so – well, just stepping through that again, so prior to this day, had you had any contact with this person, Vanessa?---No. I wouldn’t have had a clue who this person was. It was just a random text message from three separate women that particular day.

And as a result of that text message, you then went and asked [B] directly about it?---Because she was basically – in the text message, it said:

“I need to talk to you regarding [the appellant] interfering with your eldest daughter.”

Do you remember whether or not you spoke to [B] about any of the specifics about what happened with her and [the appellant]?---No, because I – I think I was trying to process what I was reading on a text message, trying to juggle my child’s emotions of crying, and wondering what do I do now, as a mum?”

How the evidence was dealt with

  1. [22]
    B’s mother was cross-examined about the appellant’s infidelity and agreed she was aware that he had had affairs with other women during their relationship, which angered her.  She was asked about the appellant’s affairs with women named Emily, Lisa and Vanessa, but said that those were not relationships he had during their marriage.  She did not know those women at all; they were the three women who had contacted her by text message.
  2. [23]
    At the conclusion of B’s mother’s evidence, counsel for the appellant sought an adjournment to speak to the next witness, and later advised the trial judge that she would confirm with that witness, a police officer, that at the time of B’s complaint there had been no previous investigation into the appellant; something she duly did.  During the adjournment,  however, the jury raised this question:

“The ladies who sent the three separate text messages. Why are they not witnesses and why are the text messages not evidence?”

  1. [24]
    The learned trial judge had an exchange with counsel about the mother’s evidence regarding the text messages, saying that it was his (erroneous) recollection that it had emerged during cross-examination.  Neither counsel was able to recall with any confidence at what point it was given, and the prosecutor said that whether it had emerged in evidence in chief or in cross-examination, she had not meant to lead the entirety of the text message.
  2. [25]
    The trial judge gave the following direction in response to the jury’s question:

“The answer to that is this. They are not witnesses and the text messages are not in evidence, so far, because neither counsel, so far, have called them as witnesses or led the evidence. Now, that might seem a little bit circular but the fact is that, so far, a judgment has been made and will be made by both counsel how to conduct the trial fairly and on evidence which is relevant and admissible. And you decide this trial on the evidence that is put before you in that way and nothing else.

Like you, I dont actually know whether well hear more about that or not, but Id urge you not to and Id direct you not to speculate about it. Just decide it on the evidence that is put before you in the courtroom. Theres all sorts of explanations that someone like me can think of for that, but the simple answer is decide it on the evidence before you and nothing else.”

His Honour concluded by saying that he would return to the matter as necessary in his summing up.

  1. [26]
    The appellant gave evidence denying the offences, in the course of which he confirmed that he had had a relationship with a woman named Emily during the period of his marriage and, after his separation from B’s mother, with two other women named Lisa and Vanessa.  He and B’s mother had broken up because she was angry about his relationship with Emily.  In her closing address, defence counsel suggested that the trigger for B’s complaint was a text message from one of the appellant’s unhappy former lovers; here, counsel paraphrased Congreve, saying

“Hell hath no fury like a woman scorned”.

And, as already mentioned, counsel invited the jury to infer that the “rage, anger, distress” of B, her mother, or the women involved in the affairs were relevant to the making of the complaint itself.

The directions in the summing up

  1. [27]
    In summing up, the trial judge gave a conventional direction about the use to be made of preliminary complaint, in the course of which he said:

“In reality, therefore, for you to be satisfied there has been a preliminary complaint, you must conclude that a complaint was made in certain terms, and that the complaint was about the alleged offending, that is, about Mr – in this case – about [the appellant] maintaining an unlawful sexual relationship with [B].

Now, you might recall [B]’s complaints – that is what they were – were that [the appellant]  touched her, not that he touched her sexually. If you accept [B’s mother]’s evidence about this, you need to be satisfied that [B]’s statement was about this offending. Now, although you might recall the words she used or adopted was, “just touching”, it was in the context of [B’s mother]’s evidence that she read a text message to [B], which read, in part – or she said read in part, “I need to talk to you regarding [the appellant]  interfering with your eldest daughter.” So it is up to you to decide if you think, on that evidence, or on  other evidence that you recall that bears on this issue, what [B] said was a complaint about offending of this kind by [the appellant] against her.”

  1. [28]
    Later, his Honour referred again to the use which could be made of the text message:

“Before leaving this topic, I wanted to direct you directly about the text message, which you asked about in your note. The evidence about the text message – and the only evidence we have is what [the mother] said she read on it – is not evidence of the truth of what it said. It is irrelevant for that purpose. Its only relevance is – and the only reason it was accepted into evidence – and the only reason it was accepted into evidence, and this is assuming you accept [the mother’s] evidence about it – is that it was the catalyst that led her to question [B], and led to [B’s] statement, which I have said, if you accept, might be preliminary complaint. I direct you to ignore the text message for any purpose, other than as explaining the catalyst for the complaint.

That is my direction, but let me briefly explain to you anyway, why it would be unfair for you to do that. You do not have to think long to realise why it would be. There is no evidence before you to text was actually said, nor is there evidence of the whole of its content, nor is the evidence of the basis upon which the assertion is seemingly contained was made or is there reliable evidence of who even sent it. You and I just know nothing more about it than what was recited by [the mother], which was a catalyst if you accept the evidence, from [B] to complain.

Now, you might recall [B’s] complaints – that is what they were – were that [the appellant] touched her, not that he touched her sexually. If you accept [B’s mother’s] evidence about this, you need to be satisfied that [B’s] statement was about this offending.

Now, although you might recall the words she used or adopted was, “just touching”, it was in the context of [B’s mother’s] evidence that she read a text message to [B], which read, in part – or she said read in part, “I need to talk to you regarding [the appellant] interfering with your eldest daughter.” So it is up to you to decide if you think, on that evidence, or on other evidence that you recall that bears on this issue, what [B] said was a complaint about offending of this kind by [the appellant] against her.”

The submissions on the second ground of appeal

  1. [29]
    The appellant argued that s 4A(2) rendered preliminary complaint evidence available to buttress B’s credit, but it did not extend to rendering admissible hearsay allegations of unknown provenance from a third party.  The fact that B’s mother had received the information, and its content, were irrelevant.  The text message did nothing to resolve any ambiguity about the conversation between B and her mother.  Alternatively, the evidence was unfairly prejudicial, because the inference was that the caller had knowledge of something the appellant had done to B or another person, and ought to have been excluded.
  2. [30]
    Notwithstanding defence counsel’s failure to apply for a discharge of the jury, the reception of the evidence, which was inadmissible and prejudicial, rendered the trial unfair and deprived the appellant of a fair chance of acquittal.  There was no good forensic reason for defence counsel not to seek the jury’s discharge; it was conceivable that she may have considered herself responsible for eliciting the evidence and consequently omitted to apply for the discharge.  The judge’s direction in answer to the jury’s question did not cure the prejudice; if anything, it implied that the evidence about the text message was relevant, admissible and properly admitted in the course of a fair trial.
  3. [31]
    The respondent relied on R v AW[9] and R v Riera[10] for the proposition that “how and when” a preliminary complaint was made for the purposes of s 4A extended to evidence about the context in which it was made.  In this case, it was submitted, the mother’s question was a leading one, but it was the catalyst for the making of the complaint and was part of the context in which it was made.  In addition, it was essential to establishing the content of the complaint.  It contained the words of the text, which, effectively, the preliminary complaint adopted.  Any prejudice arising from the text or the reference to three separate women having texted was cured by the judge’s directions and the calling of the police officer to confirm that there was no previous investigation into the appellant.  The evidence was used by defence counsel to forensic advantage.

Discussion: the second ground of appeal

  1. [32]
    In R v AW, the first of the cases relied on by the respondent, the mother of the intellectually impaired complainant asked him a leading question  which led to his disclosure of rape by the appellant in that case.  In considering whether the leading question and the response to it were admissible as preliminary complaint, McMurdo P, with whose reasons the other members of the court agreed, made this observation:

“The legislature, in enacting s 4A, plainly intended that the jury have the full context of any preliminary complaint or disclosure so as to most accurately assess the credibility (or lack of credibility) of the complainant and the complaint.”[11]

In R v Riera, Chesterman JA referred to R v AW, and another case, R v CAU,[12] as deciding that

“…the ‘how and when’ of a preliminary complaint about the alleged commission of an offence includes matters beyond the bare account of the offence.  For example, evidence of threats made by an accused in order to prevent the making of a complaint, and the context in which the complaint was made, as well as the substance of the complaint itself, are within the ambit of s 4A.”[13]

  1. [33]
    Those cases make it clear that “how and when” in s 4A(2) of the Criminal Law (Sexual Offences) Act is not to be given a narrow construction.  In this case, the “how and when”, the context for the complaint, included the communication to B that information had been received in the form of a text message (obviously from a third party) and the reading of that message to her.  It was permissible to elicit its terms; as counsel for the respondent pointed out, the content of the preliminary complaint could only be understood by reference to what it was that B adopted.  There was ambiguity in the question as to whether the appellant had “touched” B; the form of touching under discussion was rendered beyond doubt by the reference to the appellant’s “interfering with” B.
  2. [34]
    There was, inevitably, some prejudice in the fact that a third party had made the claim that the appellant had sexually assaulted B, but the probative importance of the text message as an integral part of the preliminary complaint far outweighed the attendant prejudicial effect.  The trial judge made its appropriate use clear, as the catalyst for the preliminary complaint and as confirming what the subject matter of that complaint was.  His Honour properly emphasised that it had no other purpose and was not to be regarded as evidence of the truth of its content.
  3. [35]
    The reference to the message’s having been sent by “three separate women” was neither the context for, nor part of the content of, the preliminary complaint.  Insofar as it carried the implication that there might have been more than one source for the suggestion that the appellant had interfered with B, it was prejudicial.  However, that prejudice was largely remedied by the trial judge’s almost immediate direction counselling the jury against speculation as to the supposed text messages or their senders.
  4. [36]
    Moreover, defence counsel made no application for the jury’s discharge, instead choosing to direct the jury’s attention to the anger arising from the appellant’s infidelity, including that evidenced by the flurry of text messages, as a possible explanation for the complaint.  That was not making a virtue of necessity; however, the evidence had emerged, the choice of seeking a discharge was available.  The approach counsel adopted represented a reasonable forensic decision.  It was not, of course, necessary for the appellant to establish any motive for B to make allegations against him, but it could certainly be considered advantageous, given the lack of any evidence of animus against him on her part.  The appellant did not lose a fair chance of acquittal by reason of the text message evidence.

A note of caution

  1. [37]
    None of this is to say that everything strictly admissible by way of preliminary complaint should necessarily be led.  Given the prospect of unfairness where hearsay evidence is rendered admissible by statute and the ever-present risk that a witness’ answers may well go beyond what is contemplated, the need for a sparing and cautious use of such evidence is obvious.

The third ground of appeal: the combined effect

  1. [38]
    Given my conclusions thus far, the third appeal ground, that the admission of all the evidence complained of caused, in combination, a miscarriage of justice, cannot be sustained.  In fact, the prejudice from B’s evidence was not cumulative on the prejudice from her mother’s evidence, because essentially both involved the information that an external source had brought the offending to the mother’s notice.  The evidence, with the exception of the reference to the three women, was admissible and significantly probative.  Such prejudice as arose from that reference did not cause a miscarriage of justice; it was the subject of appropriate direction and used in the defence case.

Conclusion

  1. [39]
    None of the grounds of appeal is made out.  The appeal against conviction should be dismissed.
  2. [40]
    BOND JA:  I agree with the reasons for judgment of Holmes CJ and with the order proposed by her Honour.
  3. [41]
    NORTH J:  I agree with the reasons for judgment of Holmes CJ and the order proposed.

Footnotes

[1]  [1986] 1 Qd R 136.

[2]  [1969] VR 323.

[3]  Ibid at 326, cited in R v Phair [1986] 1 Qd R 136 at 137.

[4]  (1979) 20 SASR 430.

[5]  Ibid at 451.

[6]  (1979) 20 SASR 430 at 435.

[7]  [1986] 2 Qd R 535.

[8]  Ibid at 539.

[9]  [2005] QCA 152 at [26].

[10]  [2011] QCA 77 at [7].

[11]  At [26].

[12]  [2010] QCA 46.

[13]  At [7].

Close

Editorial Notes

  • Published Case Name:

    R v IH

  • Shortened Case Name:

    R v IH

  • MNC:

    [2021] QCA 247

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Bond JA, North J

  • Date:

    19 Nov 2021

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC2947/19 (No citation)13 Oct 2020Date of conviction; found guilty after trial before Porter QC DCJ and jury of one count of maintaining sexual relationship with stepdaughter.
Appeal Determined (QCA)[2021] QCA 24719 Nov 2021Appeal against conviction dismissed: Holmes CJ (Bond JA and North J agreeing).

Appeal Status

Appeal Determined (QCA)

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