R v Turner[2021] QCA 270

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  A jury found the appellant guilty of one count of attempting to pervert the course of justice^[1] and three counts of giving false testimony touching a matter in a judicial proceeding.^[2]
2. [2]
   The appellant’s son, Markis Turner, had been charged with committing several serious drug offences.  He was released on bail for which the appellant had given a substantial surety.  After an indictment had been presented and after a trial date was set, Turner failed to report in accordance with the conditions of his bail and his bail was revoked.  In due course it emerged that Turner had fled the jurisdiction.  He got away by sailing in a yacht from Australia to the Philippines where he was later found and arrested.
3. [3]
   The Crown case was that the appellant helped Turner to escape by buying the yacht for him.  The Crown also alleged that the appellant falsely told police that she believed that he had committed suicide in order to help her son remain in hiding.  This was count 1.
4. [4]
   The appellant gave evidence at the trial.  She gave various explanations for the purchase of the yacht and her other acts.
5. [5]
   The Crown applied to forfeit the appellant’s surety and, in proceedings to recover the surety, the appellant swore an affidavit and gave oral evidence.  In her affidavit the appellant said, “I am of the view that [Markis Turner] has committed suicide”.  The Crown alleged that the appellant knew that her son was alive and that this statement was false to her knowledge.  This was count 2 on the indictment, the first of the perjury charges.
6. [6]
   In giving oral evidence, the appellant repeated that statement.  This was count 3, the second of the perjury charges.
7. [7]
   The appellant and her husband undertook a road trip through Western Australia beginning on 19 or 20 August 2015.  It was during this trip that the appellant’s son fled the jurisdiction in the yacht.  Counsel for the Crown was probing the significance of the appellant’s failure to attempt to contact her son during that period.  On her case, she would not have known that he had fled and, so ran the proposition, it would have been natural for her to have attempted to contact her son during the period of that trip unless she knew that he had fled the jurisdiction.  In response, the appellant swore that she could not contact her son because she had not taken her mobile phone with her on the trip.  She said that she had forgotten to take it with her.  This was count 4.
8. [8]
   The appellant gave evidence at her trial.  She said that when she made the statements that were alleged to be perjurious she believed them to be true.  She gave exculpatory explanations for her actions in assisting in the purchase of the yacht.  At the trial, the appellant said that her statement that she had not taken her mobile phone with her on the road trip was true.  She had forgotten her usual handset.  Because of this she had used a different handset for which she had purchased a new SIM card but which carried her usual phone number.  She said that she had misunderstood the import of the question to which she had given the allegedly perjurious answer.
9. [9]
   The primary facts were not much in dispute.  The appellant had indeed helped her son buy a yacht and he had used it to escape.  She did have the use of a mobile phone while on the road trip.  She had made the statements that were said to constitute perjury.  The real issue in the case turned upon the appellant’s credit.  Could any credence be given to her explanations for the purchase of the yacht and her denials of knowing about her son’s escape using the yacht and her denial that she had helped him?  Could any credence be given to her explanations for her misleading answer about the mobile phone?
10. [10]
    In support of the appellant’s credit, Mr Holt QC, who appeared for the appellant at the trial, sought to lead evidence from the appellant’s daughter in law, Ms Magdalena Turner, to the effect that, during the appellant’s son’s absence, and before he was found alive in the Philippines, the appellant had told Ms Turner that she believed that her son was dead.  Ms Turner began to give some of this evidence as follows:

“She was devastated, and I think she was also a little bit …She was crying, and she said that she lost her child, and sometimes she was saying that it’s all police’s fault.”

11. [11]
    The prosecutor took objection to this evidence on the basis that it was hearsay and inadmissible as evidence of self-corroboration by way of a prior consistent statement.  The learned trial judge allowed the objection.
12. [12]
    The appellant’s sole ground of appeal was that the allowing of the objection was a wrong decision on a question of law and constituted a miscarriage of justice.  Mr Holt submitted that the evidence was admissible to prove the appellant’s state of mind at the time that she made the statements that were said to constitute perjury and at the time of the purchase of the yacht.^[3]  The respondent has conceded that the refusal to admit the evidence was an error and the appeal has proceeded upon that footing.  It follows that there has been a miscarriage of justice.  However, the prosecution submits that the proviso to s 668E(1A) of the Criminal Code applies.
13. [13]
    The applicable principles are well settled.  Unless the court is persuaded that the appellant is guilty, it cannot be said that miscarriage was not substantial and the proviso cannot apply.  The court is obliged to determine whether, making due allowance for the natural limitations that constrain an appellate court’s ability to assess guilt, the prosecution has proved the appellant’s guilt beyond a reasonable doubt.^[4]
14. [14]
    In cases in which the trial irregularity goes to the assessment of the credibility of a material witness, the application of the proviso can be difficult or not possible.^[5]  This is one of the “natural limitations” faced by an appellate court when considering the application of the proviso.  In Collins v The Queen,^[6] which was a rape case, the High Court declined to apply the proviso because of one of these “natural limitations”, namely the difficulty faced by an appellate court when attempting to assess the credibility of a witness.  The miscarriage of justice arose from a wrong direction by the trial judge that certain evidence of recent complaint was limited in its relevance and by his failure to direct the jury instead that it could also be used to assess the credibility of the complainant.  Collins was a case which depended wholly upon the complainant’s evidence.  The High Court held that the miscarriage of justice was that the misdirection “may have affected” the jury’s acceptance of the complainant’s evidence.  However, the appellate court was not in a position to make an assessment about the credit of a crucial witness and could not decide whether the appellant had been proved guilty despite the irregularity.  That being so, the proviso could not be applied.  So too in Castle v The Queen^[7] the High Court held that the same essential pre-condition to the application of the proviso could not be satisfied because of the inability of the court to make an assessment of the credit of a crucial witness.^[8]  On the other hand, in Hofer v The Queen,^[9] another rape case, the sole issue at trial was whether or not the appellant held a mistaken belief that the complainants were giving their consent.  The High Court applied the proviso because a:^[10]

“… consideration of the appellant’s evidence, together with the evidence that was common ground between the parties, inevitably leads to the conclusion that the appellant’s evidence was so glaringly improbable that it could not give rise to a reasonable doubt as to his guilt”.

15. [15]
    The prosecution case on counts 1, 2 and 3 was circumstantial.  While it was not disputed that a company that was closely associated with, or controlled by, the appellant had purchased the yacht using money supplied by the appellant, she offered in evidence an explanation for that purchase, as well as the way in which it was made, that was consistent with her innocence.  The jury must have rejected her explanation as false.  Her explanation cannot be regarded as so lacking in plausibility, or “so glaringly improbable”, that it is open for this court to reject it out of hand.  The respondent does not submit to the contrary but, instead, submits that the evidence that was not admitted was of minimal weight.  However, the weight that should be accorded to evidence is entirely a matter for a jury.  This is not a case in which this court can determine the appellant’s guilt because such a determination depends upon a rejection of the appellant’s evidence.  For these reasons this is not a case in which the proviso can be applied.
16. [16]
    The respondent has also submitted that count 4 stands outside the scope of influence of the wrongly excluded evidence.  That submission cannot be accepted.  It is true that counts 1, 2 and 3 directly concerned the questions of whether the appellant knew that her son was alive and whether she had helped him escape and count 4 did not.  However, the excluded evidence was relevant to the appellant’s credit and a verdict of guilty on count 4, like the verdicts on the other counts, depended upon whether the jury was prepared to reject her evidence about that count.  The excluded evidence was, therefore, relevant to the jury’s conclusion about count 4.
17. [17]
    For these reasons the court allowed the appeal and made other consequential orders at the conclusion of the hearing.
18. [18]
    BOWSKILL SJA:  For the reasons given by Sofronoff P, I joined in making the orders at the conclusion of the hearing on 15 September 2021.
19. [19]
    FREEBURN J:  I agree with Sofronoff P.