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R v BDJ QCA 108
SUPREME COURT OF QUEENSLAND
R v BDJ  QCA 108
CA No 223 of 2020
DC No 512 of 2020
Court of Appeal
Appeal against Conviction
District Court at Townsville – Date of Conviction: 1 October 2020 (Dick SC DCJ)
17 June 2022
14 February 2022
Fraser and Mullins JJA and Ryan J
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of 12 counts of child sexual offences against his two stepdaughters – where the offences were committed between about 25 and 35 years before the trial – where the trial judge gave a direction pursuant to s 132BA of the Evidence Act 1977 (Qld) on the significant forensic disadvantage suffered by the appellant because of the effects of delay in prosecuting the offences – where the appellant submits he suffered a miscarriage of justice because the direction given by the trial judge was inadequate and/or wrong in law – whether the impugned direction informed the jury sufficiently of the nature of the appellant’s disadvantage – where the trial judge used the expression “to prove or disprove the allegation” in the impugned direction – whether using “prove or disprove” instead of “test” in the impugned direction was wrong in law in the circumstances of the trial – whether there was a miscarriage of justice
Evidence Act 1977 (Qld), s 132BA
Jarrett v R (2014) 86 NSWLR 623;  NSWCCA 140, considered
D P Jones for the appellant
D Nardone for the respondent
Bouchier Khan Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- THE COURT: On 1 October 2020, the appellant was convicted after trial of 12 counts generically described as child sexual offending against his two stepdaughters FM and JD. FM was born in February 1982 and was the complainant for counts 1 and 5-12. JD was born in October 1973 and was the complainant for counts 2-4. The offending on the indictment committed against FM was particularised as occurring over a period of time during which FM was four to 14 years old. The offending on the indictment committed against JD was particularised as being committed over a period of time during which she was 13 to 16 years old. Although complaints were first made by the complainants to police in 2006 and statements were obtained, there was a delay until October 2016 before further statements were obtained and the appellant then charged.
- There is one ground of appeal that the appellant suffered a miscarriage of justice because the direction given pursuant to s 132BA of the Evidence Act 1977 (Qld) (the Act) was inadequate and/or wrong at law.
Summary of the evidence
- This was a relatively short trial. The evidence was given over two days. On the third day, both counsel addressed the jury, the learned trial judge summed up and the jury commenced deliberations. They returned their verdicts on the fourth day.
- The complainants lived with the appellant, their mother and one or more siblings at the relevant times at various addresses. The appellant was her mother’s partner for as long as FM could remember. JD could remember meeting the appellant first when she was in year 6 in 1984. The offences occurred inside the various houses at which the family resided either when the appellant was alone in the house with one of the complainants or whilst others were in the house. The complainants’ mother died in 2002 and therefore did not give evidence.
- At the outset of the cross-examination of each of the complainants, the appellant’s trial counsel (who is not the counsel who appears for him on this appeal) asserted to the complainant that the appellant’s case was that none of the allegations of sexual impropriety made by the complainant against him ever happened and the cross-examination of the complainant then continued on that premise.
- The earliest count in time (count 1) was particularised as occurring between 1 February 1986 and 2 February 1987 that coincided with FM’s being four years old. It was the offence of indecent treatment of a child under 16 years, under 14. FM’s evidence relevant to count 1 included the following. FM was three or four years old when the mother met the appellant. The first address at which FM remembered living with the appellant was L Street. The family comprised FM’s mother, FM, JD who was eight years older than FM, their brother who was six years older than FM, their sister who was almost two years younger than FM and the appellant. The family moved to C Street before FM started preschool and she was three or four years old. When the family was living in C Street, FM took the appellant’s morning coffee into his bedroom. The appellant was on the mattress on the floor and picked FM up and placed her across his lap near his thighs. The appellant pulled back the sheet and he was not wearing any clothes. The appellant told her that she was a naughty girl and naughty girls needed to be punished and that was when he grabbed her hand and put it on his penis for 10 or so minutes. The appellant told her that “it was our secret and that if I ever told anybody, then I wouldn’t have a daddy”. In cross-examination, it was put to FM that at no stage did the appellant ever take her hand and place it on his penis. FM disagreed with that proposition.
- FM also gave evidence of uncharged acts that occurred at C Street as follows. The appellant would come into her room and wake her in the middle of the night and make her perform oral sex on him. He was dressed in a towel. He would also lift up FM’s nightie, push her underwear to the side and touch her vagina or put his finger inside her vagina.
- Count 2 (rape) was particularised as occurring in August or September 1987. JD’s evidence was as follows. The family moved to C Street just before she started year 9 in 1987. The appellant would call her into the bedroom he shared with JD’s mother and he would be lying naked on the bed. The first occasion the appellant had sexual intercourse with her, she had gone into the bedroom for something and he said to her that she was of the age of being able to have sex and that her mother would not mind if he were the first one. The appellant was lying on the bed and he put JD down on top of him. He got her to sit down on top of his penis, so she was facing towards him and his penis entered her vagina. He said it would not hurt as much doing it that way and she remembered “ripping and pulling” and that she “was in lots of pain”. He said a girl had become a woman. She remembered getting up and looking down and there was blood running down her leg and on the appellant’s groin and penis. She ran out of the room and to the toilet. When she was at the toilet, her mother came to the toilet and said that the appellant had said that she had got her period. She got her first period when she was turning 13. She got her period the second time when she was on the weeklong army cadet camp in the September school holidays that followed the first occasion the appellant had sexual intercourse with her. In cross-examination, JD disagreed with the proposition that at no time did the appellant place his penis into JD’s vagina.
- Count 3 (rape) was particularised as occurring between 1 September 1987 and 1 January 1988. According to JD, the appellant had borrowed a pornographic video “Hot Chilli” from the video store and got JD to dress in a skirt like the woman in the video and he then had sexual intercourse with her while the movie was playing in the same manner that the actors were having sexual intercourse.
- Count 4 (rape) was particularised as occurring between 1 September 1987 and 18 January 1990 in circumstances after JD had gone to hospital to have her eye treated and had returned home. JD’s evidence included the following. JD had gone to bed and woke up to find the appellant standing beside her bed. He told her that he had something that would make her eye better. He got into bed beside JD and had sexual intercourse with her.
- JD’s evidence also included the following. She had drawn a diagram of the house at C Street (exhibit 8) that showed that the toilet was outside between a covered concrete area and the laundry. The family moved out of C Street to H Street when JD was on the army cadet camp held after she finished year 11 and was going into year 12. She moved out of the house at H Street in 1991 or 1992. FM moved in with her after JD had her first child. JD told FM that the appellant had sexually abused her and asked if he had done anything sexually to FM. FM said “No”. After FM had moved back to live with their mother and the appellant, JD and FM had gone out together and were talking in front of their mother’s house, when FM disclosed to JD that the appellant had done the same to her that JD had said that the appellant had done to JD.
- The significance of the date of 18 January 1990 as the end date particularised for count 4 was that Detective Hunter had made inquiries of the Department of Housing and found that the Department’s records had the start date of the appellant’s tenancy of a particular residence in H Street as 18 January 1990. (JD’s evidence was that the move to H Street took place in January 1989 which was inconsistent with the independent evidence.)
- In cross-examination, JD’s evidence included the following. JD disagreed with the proposition put to her that on no occasion did the appellant ever have a registered day off on a Monday. It was then put to her that his rostered day off was once a month on a Friday. She disagreed with that proposition and stated “I’d like you to check my school records. I bet it was Monday.” (which was confirmed to some extent by the appellant’s evidence when he said he had a rostered day off sometimes on a Monday when he was on “the mini crew”). JD confirmed that at C Street there was only one toilet outside, saying that she disagreed there was a toilet in the house “because [she] would have used the toilet in the house … when it was bloody cold”. It was put to JD that her mother and the appellant moved to H Street on 18 January 1990. JD said it happened while she was on a cadet camp and, if 18 January 1990 was the date he had, then that was when the cadet camp was. It was put to JD that she had given evidence of the cadet camp being in the September school holidays and JD responded that that was the annual camp and that the cross-examiner had got the camps mixed up (which was an accurate observation by JD, as it was apparent the appellant’s trial counsel assumed that the cadet camp was held only in the September school holidays). JD then disagreed with the appellant’s trial counsel’s suggestion that it was JD who got the camps mixed up.
- Count 5 (indecent treatment of a child under 16 years, under 14) was particularised as occurring in either January, February or March 1988. FM’s evidence was that this incident occurred not long after she and her younger sister had been given Lego for Christmas. It was the Christmas that JD had turned 13 years old. The appellant woke FM up in the middle of the night, positioned her widthways across one of the ends of the bed, knelt in front of the bed and performed oral sex on her. FM recalled that as the appellant was getting up to leave, he hit the edge of the bed and the corner got knocked out of the bed frame, so the bed “was on a lean”. The appellant could not fix it and told FM that he would fix it in the morning. When she came home from school, it was fixed. In cross-examination, it was put to FM that the appellant did not perform any act of oral sex upon her and she disagreed with that proposition. She remembered that the bunk bed was one of a wooden set that could be pulled apart into two beds.
- The maintaining a sexual relationship with FM (count 6) was particularised as occurring between 3 July 1989 (when that offence was introduced into the Criminal Code (Qld)) and 30 January 1997.
- Counts 7-9 were committed on the one occasion and were particularised as occurring between 18 January 1990 and 1 January 1991. FM was also mistaken about when the family moved to H Street, saying that it was 1989 which was the year that her brother turned 13 years and they moved house when JD was away on an army cadet camp. FM did concede during cross-examination that she may have been wrong and that it was 1990 rather than 1989. On the occasion counts 7-9 were committed, the appellant had told FM to tell her mother that she was sick and that she did not want to go to school. She did that and the appellant was at home that day. The appellant told FM to go to his room which she did. The appellant told FM that she was a big girl now and that she needed to do big girl things. He showed her some magazines with pictures of men and women engaged in sexual intercourse and said “Let’s do that”. Count 7 (indecent treatment of a child under 16 years, under 12, under care) was constituted by the appellant’s showing FM the indecent images depicting men and women engaging in sexual intercourse. FM was lying on her back on the bed with her legs apart and the appellant was kneeling in between her legs in front of her. The appellant spat on his fingers and rubbed them on FM’s vagina. This constituted count 8 (indecent treatment of a child under 16 years, under 12, under care). The appellant proceeded to insert his penis into her vagina (which was count 9 (rape)). He kept telling her to relax and breathe. FM was crying. He pulled his penis out and ejaculated onto her stomach. He handed her clothes back to her and told her to have a shower. In the shower she noticed she was bleeding a little bit near her vagina. FM placed these events as happening not long after they moved into H Street. In cross-examination, it was put to FM that at no stage did the appellant penetrate her vagina with either his penis or a finger with or without her consent and she disagreed with that proposition.
- FM recalled that JD moved out of H Street in the year JD was turning 18 years.
- Count 10 (rape) was particularised as occurring between 1 January 1992 and 26 June 1995. FM’s evidence included the following. It was another occasion when the appellant had told FM to tell her mother that she was sick and could not go to school. The appellant was at home as he would have had a rostered day off. FM remembered being in the room occupied by her mother and the appellant. She could not recall exactly how it started, but she was on her hands and knees on the bed and the appellant was behind her. He again had a pornographic magazine that he placed on the bed in front of her. It was a picture of men and women engaged in sexual activity with the man kneeling behind the woman who had one knee bent and had one leg straight out to the side. The appellant told FM to look at it and he put his penis into her vagina.
- Apart from the two specific occasions of sexual intercourse she had with the appellant that are the subject of counts 9 and 10, FM gave evidence of uncharged acts of sexual intercourse with the appellant at H Street that was fairly regular such as “five, six, seven times a year”. FM recalled an occasion when she was sitting on the edge of the bed and the appellant asked her to perform oral sex on him and she did not want to. She recalled there was a little sore on the underside of his penis. She asked what it was and he replied “that’s what happens when you have to zip up in a hurry”. In cross-examination, FM accepted that the first time that she had made any mention of that particular incident was on 30 July 2018 after she had provided her statement to the police in 2006 and after she had confirmed that statement in 2016. Other uncharged acts at H Street of which FM gave evidence involved the appellant asking FM to read to him from pornographic novels and, while she was doing that, he would have his fingers on and in her vagina.
- Count 11 (rape) was particularised as occurring between 26 June 1995 and 1 January 1996. FM’s evidence included the following. The family had moved from H Street to A Street in 1995. By then, JD had moved out from living with the family. FM remembered a time at A Street when the appellant had sexual intercourse with her. It was on the appellant’s and her mother’s waterbed. FM was conscious about having her period, because she was scared of getting pregnant. She said something to that effect to the appellant who said she would not get pregnant “because he always pulled out before he comes”. On this occasion, the appellant told her to say things “like that I was a whore and that I liked it and that I was his little slut”. FM was 13 years old at the time.
- Count 12 (indecent treatment of a child under 16 years, under care) was particularised as occurring between 8 July 1996 and 30 January 1997. This was the last occasion on which the appellant offended against FM. The family had moved from A Street to B Street. On this occasion, according to FM, she was suffering a migraine and was on her bed, when the appellant came in and touched her vagina through the clothing, FM pushed her leg out and pushed him away and started crying louder and the appellant left the room.
- FM eventually moved in with JD. FM gave evidence of the preliminary complaint made to her by JD as follows. In 1999, JD said to FM that the appellant was an evil man and that he had molested her. At that time, FM did not say anything to JD about anything that happened to her. FM gave evidence of the preliminary complaint made by her to JD as follows. Subsequently, after FM had moved back with her mother and the appellant, JD was driving FM home from the Sunday markets. JD expressed her revulsion of the appellant and FM responded “I hate him too” and on this occasion said to JD “We hate him for the same reason”. FM also gave evidence of the preliminary complaint made by her to a male doctor at a general medical practice whom she had told that she had been sexually abused as a child by her mother’s husband.
- Apart from the complainants, the only other witnesses in the prosecution case were FM’s husband who gave evidence relevant to preliminary complaint, Detective Hunter who was the investigating police officer and Dr Robertson who had practised at a medical centre where FM attended on 5 March 2001 for a consultation and the appellant had been a patient. In cross-examination, Detective Hunter agreed that one of the problems in investigating historical cases is the inability to obtain contemporary records. Dr Robertson in evidence in chief gave evidence of preliminary complaint made to him by FM on 5 March 2001, when she told him that she had been sexually abused between the ages of six and 14 years by her stepfather. By reference to the available medical records of that practice, Dr Robertson in cross-examination identified each of the consultations when the appellant attended the practice from 12 March 1998 until an entry on 15 January 2002 that recorded that the appellant had extensive genital warts in the perianal area. At trial, it was formally admitted by the prosecution and the appellant that there were no records available from that medical centre for the period prior to 1997.
- The appellant gave evidence in which he denied the allegations of the conduct alleged against him by the complainants and the statements that the complainants alleged he made to them about sexual activity with him, as each of the allegations was put to him by his trial counsel during evidence in chief. His evidence in chief also included the following. There was only one functioning toilet at C Street and it was in the house beside the new bathroom. There was another toilet down the backyard that had been filled in and was not used at all. When he became a permanent employee for the local council, he had a rostered day off once a month. It fell sometimes on the Monday when he was on the “mini crew”. At C Street, FM and her younger sister slept in the same bedroom and FM had one of a set of steel frame bunk beds that had been pulled apart. The younger sister had a wooden bed. There was a bit of an argument over the kids’ jumping from bed to bed and it was the wooden one that broke. The appellant would not have been able to fix the steel bed, if it had broken. When they moved into H Street, his wife was working at a laundry for maybe eight months, but she was not working full time. He had genital warts for many years before his wife died which he described as “like cauliflower”.
- The appellant did not make many concessions in cross-examination, but his evidence in cross-examination included the following. He never did sexual things to the children as there was always four of them there. There could have been occasions when FM brought coffee to him when he was in bed. Sometimes his wife went out. Sometimes he went into FM’s bedroom dressed in a towel. Sometimes he would be alone in the house during the day with the children. He found pornographic magazines in the house when he was cleaning up after his stepson left the home. They were not the appellant’s magazines.
- The prosecutor at the trial incorrectly put to the appellant in cross-examination that the first time that the appellant was treated for genital warts was in 1998 to which the appellant responded that “It was a long time before that.” The issue was not explored further as the trial judge observed that the doctor had given evidence and “We can draw it from the transcript.” The actual date recorded in the evidence for the appellant’s consultation about genital warts was 15 January 2002. It was therefore not clarified in cross-examination whether the appellant was asserting that he had genital warts for a long time before 1998 or whether the appellant’s evidence was to the effect (consistent with his evidence in chief that he had them many years before his wife died) that he had them a long time before he went for the first consultation about them in 2002.
Section 132BA of the Act
- Section 132BA was inserted into the Act by the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (Qld) (the Amendment Act) and commenced operation on 15 September 2020. Section 132BA provides:
“(1) This section applies in relation to a criminal proceeding in which there is a jury.
- (2)The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.
- (3)For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.
- (4)In giving the direction, the judge—
- (a)must inform the jury of—
- (i)the nature of the disadvantage; and
- (ii)the need to take the disadvantage into account when considering the evidence; but
- (b)must not warn or in any way suggest to the jury that—
- (i)it would be dangerous or unsafe to convict the defendant; or
- (ii)the complainant’s evidence should be scrutinised with great care.
- (5)However, the judge need not give the direction if there are good reasons for not doing so.
- (6)The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.
- (7)In this section—
delay, in prosecuting an offence, includes delay in reporting the offence.”
- This provision was enacted in response to recommendation 65 of the Criminal Justice Report released in August 2017 by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). As noted in the Explanatory Note for the Bill that was enacted as the Amendment Act (at pp 4, 8 and 14), the purpose of the amendment is to modify jury directions and warnings in relation to delay and forensic disadvantage, as the traditional directions were “founded upon flawed presumptions about victims, including an assumption that a genuine victim will complain at the first reasonable opportunity”. The traditional direction which s 132BA modifies is that based on Longman v The Queen (1989) 168 CLR 79. Relevantly, the essence of the traditional Longman direction (at 91) is a warning to the jury about the accused person’s “loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution” based on the circumstance of that case. The identified danger is that an accused person can only test forensically whether the complainant’s account is untruthful or unreliable after the accused has been informed of the allegation and the lapse of time inhibits the accused from adequately testing the complainant’s evidence, including not being able to explore in cross-examination matters of detail: see paragraph 4 of Applegarth J’s helpful summary of the Longman direction in R v MBX  1 Qd R 438 at .
- The complaint to police in Longman had been made 25 years after the first incident and 21 years after the second incident. The complainant who was six years old at the time of the first incident had described that she was asleep on each occasion and was awakened by her stepfather touching her genitalia. The majority judgment’s solution to the identified danger arising from the delay was set out at 91:
“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”
- Section 132BA of the Act does not purport to overrule the objective of a Longman direction to avoid a perceptible risk of miscarriage of justice by explaining to the jury how the accused person may in the circumstances have been disadvantaged by the effects of delays in the complaints being made and prosecution of those complaints, but it regulates the language that can be used by a trial judge in doing so and prohibits the trial judge from warning or suggesting to the jury that they should be cautious of convicting the defendant as a result of the significant forensic disadvantage due to the effects of delay. This ensures the objective of a direction about delay in making the complaint or the prosecution is achieved without using extreme language directed against the complainant that may overcompensate an accused person for any significant forensic disadvantage attributable to the effects of such delay.
- Section 132BA of the Act is in similar terms to s 165B of the Evidence Act 1995 (NSW). Both provisions apply to a significant forensic disadvantage because of the effects or consequences of delay in relation to the reporting of an offence or in the prosecution of the offence. The mandated aspects of the direction which can be given in New South Wales under s 165B(2) where the court is satisfied that a defendant has suffered a significant forensic disadvantage because of the consequences of delay requires that “the Court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence”. That is relevantly the same as the requirements for the direction in s 132BA(4)(a) of the Act. The proscription on the form of words that can be used in giving the direction about delay in prosecution is set out in s 165B(4) of the NSW Act:
“It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.”
- That proscription is reflected in s 132BA(4)(b) of the Act.
- The effect of the NSW provision was considered in Jarrett v R (2014) 86 NSWLR 623. After summarising the effect of the NSW provision in Jarrett at , Basten JA at  set out the requirements for a direction given in accordance with the NSW provision:
“Consistently with this scheme, the judge must identify the significant forensic disadvantage and must inform the jury of the nature of that disadvantage; the direction will therefore need to be case-specific. In directing the jury of the ‘need’ to take that disadvantage into account, it will usually be expected that a direction would identify, so far as it is not obvious, how the disadvantage may affect the jury’s consideration of the evidence. This aspect of any direction will not be straightforward: the usual consequence of delay is the loss of evidence or the loss of opportunity to test evidence; each involves a counterfactual assumption.”
- It is noteworthy that Basten JA recognised at  that it may not be essential for the trial judge to state how the disadvantage may affect the jury’s consideration of the evidence where it would otherwise be obvious to the jury. Basten JA’s observation on that aspect of the direction to the jury about the need to take the disadvantage into account when considering the evidence not being “straightforward” as the usual disadvantage of loss of evidence or the loss of opportunity to test evidence “involves a counterfactual assumption” is apt. The counterfactual assumption may involve speculation as to what would have been the nature of the lost evidence or the nature of the lost opportunity. Care must be therefore exercised by a trial judge in giving this aspect of the direction in not suggesting what the lost evidence or the lost opportunity to test evidence may have revealed, where there is not otherwise evidence before the court of the content of the lost evidence or the material that may have been available for testing the complainant’s evidence. After all, a jury is always directed to, and can only, determine the facts of the case based on the evidence placed before them in the court room and only on that evidence and not what the jury may surmise is in evidence or material that was not available for the trial. Care must also be exercised by a trial judge to ensure that any identification of how the disadvantage may affect the jury’s consideration of the evidence does not, in substance, amount to a warning that is proscribed by s 132BA(4)(b) of the Act.
The impugned direction
- To put the specific direction given by the trial judge on the significant forensic disadvantage because of the effects of delay (the impugned direction) into context in the trial, it is relevant to refer to the following arguments which the appellant’s trial counsel addressed to the jury. The extreme delay of things that were said to have happened between 26 and 35 years ago mitigated against accuracy of the complainants’ evidence. FM forgot until 2018 about the time that she said she was forced to have oral sex with the appellant where she said she saw a sore underneath his penis. To the extent that the prosecution was relying on the similarities between the evidence of each of the complainants, there were also differences to be noted (such as the location of the bedroom of the appellant and his wife in C Street, the nature of the bed in that room, and the nature of the bed that broke that was relevant to count 7). Both FM and JD got it wrong when they said the move to H Street was in January 1989, when the independent evidence was that it was January 1990. How could they both be wrong about the same thing unless there was some cross-fertilisation? It was hard for the appellant to give evidence about what he remembered from 30 years ago. To the extent that he said that his wife was present 25 years or so ago, his wife was dead (and implicitly therefore was unavailable to give evidence). Memories are unreliable. There was some evidence that perhaps the memories of the complainants have been influenced, but whose memory was influenced? The possibility that memories had been influenced meant that the memories could not be treated by the jury as accurate. Neither of the complainants talked about the appellant’s genital warts. Historical records that were unable to be obtained for the trial were not before the jury, so the fact that somebody said they had those things means nothing, when it was not before the jury. Just because a person believes that something had happened does not means that it was so. There was no medical record to back up the pain that JD said she suffered after the rape that was the subject of count 2.
- There is no issue on this appeal that this was an appropriate case for the trial judge, pursuant to s 132BA(2) of the Act, to be satisfied the appellant had suffered a significant forensic disadvantage, because of the effects of delay in prosecuting the offences the subject of the proceeding. Before counsel at the trial addressed the jury, the learned trial judge raised the need for “the new Longman direction” and read out the wording of the direction the trial judge proposed to give the jury. In fact, the trial judge read out the sentence of which particular complaint is now made:
“And the lack of any opportunity to prove or disprove the allegation by medical examination and you must take those disadvantages into account when considering the evidence.”
- There was no demur from the appellant’s trial counsel as to the wording of the proposed direction. In fact, after that discussion about the direction, the appellant’s trial counsel in his address to the jury made specific reference to neither complainant talking about the appellant’s genital warts and explained the significance in these terms:
“Now it’s not for me to prove absolutely that at the time that the offences were committed that there were some genital warts on [the appellant’s] perianal area, on his – on his body. We know that steps were made to get medical records, not there. See, when [JD] was put under pressure, she said, oh go and get the medical records, go and get the school records. Not for me to go and get those records, it’s for the prosecution; they didn’t seek to place before you any such records. Now you know that insofar as the [medical centre’s] records are concerned, there are none before 1997, couldn’t be obtained.”
- The impugned direction given for the purpose of s 132BA of the Act was in the following terms:
“You will notice on the indictment there is a large span of dates on each charge. That is permitted because children often cannot narrow it down to a date. That does have an impact in that it is not like saying on the 24th of March 1993 he robbed the ANZ Bank in Townsville. And he will say I have got a plane ticket and I was on my way to Sydney. But it is permitted because children particularly cannot often remember the specifics. ...
So there is something I have to tell you about the delay in charges. These dates, as has been said a number of times, are alleged to have happened decades ago and with a range of dates. The delay means that the accused has suffered a significant disadvantage, he has been denied the chance to assemble evidence as to what he and other potential witnesses were doing at the time. His memory is obviously not as recent as if a prompt complaint had been made and the lack of opportunity to prove or disprove the allegation by, for example, a timely medical examination. You must take those disadvantages into account when considering the evidence.”
- The impugned direction must be considered in the context of the summing up as a whole. The trial judge gave the standard direction to the jury that they “determine the facts of the case based on the evidence that has been placed before you in the Courtroom and only on that” and that, more importantly, the facts of the case were based on the evidence that they accepted. The trial judge gave the standard direction on the burden of proof resting on the prosecution to prove the appellant’s guilt and that it was upon the whole of the evidence that the jury must be satisfied of the guilt of the appellant before he could be found guilty of the particular charge. In dealing with the prosecution’s burden of proof, the trial judge stated:
“The proper approach is to understand the Prosecution case depends upon you the jury accepting the evidence here of [JD] and [FM] was true and accurate … beyond reasonable doubt despite the sworn testimony of the accused.”
- In dealing with the jury’s role in assessing the evidence, the trial judge stated that it was the complainants’ credibility, reliability, honesty and accuracy that was “[r]ight at the heart of the matter”. After giving a fairly standard direction about the approach to the assessment of witnesses, the trial judge observed in relation to FM:
“In relation to [FM] you have to remember that a lot of her evidence relates to a time not only a long time ago, but when she was a small child. That is a factor to be taken into account because you have to consider the ability and opportunity the witness had to see, hear and know about the things which are testified.”
- The trial judge referred to human memory being “a variable” and gave examples that some people have “great memories” or are “wonderful observers” and other people “not so much” and that “[s]ome memories are affected by emotionally fraught atmospheres”. The trial judge then stated:
“So there are a lot of variables to the human memory and you have to take those things into account.”
- In giving the jury an explanation as to how to use the similarities in the evidence given by the complainants, the trial judge stated:
“You cannot say to yourselves that because you are satisfied beyond reasonable doubt that he committed the offences against one complainant he must therefore have committed the offences alleged by the other complainant and somewhat convict him of those. At the end of the day you cannot convict him on any count unless you are satisfied beyond reasonable doubt the Prosecution has proved each element of each count beyond reasonable doubt. That is that the particular complainant, be it [JD] or [FM] you are considering, is truthful and reliable in their allegations upon the particular charge that you are looking at.”
- In analysing the elements of the counts, the trial judge repeatedly referred to what had to be proved by the prosecution beyond reasonable doubt.
- In summing up the contentions of the appellant’s trial counsel, the trial judge provided judicial endorsement of the appellant’s trial counsel’s argument in respect of the effects of the delay on the appellant (which included the difficulty for the appellant to give evidence about events that happened decades ago, his wife was dead and historical records were unable to be obtained for the trial) by reminding the jury:
“He spoke to you about the impact of the delay on the accused, which I have spoken to you about.”
- There are three aspects (either separately or collectively) on which the appellant challenges this direction:
- (a)the direction did not inform the jury sufficiently of the nature of the appellant’s disadvantage;
- (b)the direction was not related back to the real issues in the trial; and
- (c)the direction was wrong in law, as the reference to “the lack of opportunity to prove or disprove the allegation by, for example, a timely medical examination” had the risk of neutralising the direction and highlighted the potential unfairness suffered by the prosecution rather than the defence.
Did the direction inform the jury sufficiently of the nature of the appellant’s disadvantage?
- Paragraph (a) of s 132BA(4) of the Act mandates that, in giving the direction where a defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting the offence, the judge must inform the jury of two matters, namely, the nature of the disadvantage and the need to take the disadvantage into account when considering the evidence. The trial judge expressed clearly the second matter by stating that the delay in relation to the charges that were “alleged to have happened decades ago and with a range of dates” meant that the appellant had suffered a significant disadvantage and that the jury must take that disadvantage into account when considering the evidence. The aspect of the impugned direction that is challenged as not complying with s 132BA(4)(a) of the Act relates to the first matter as to whether the trial judge provided sufficient detail of the nature of the disadvantage suffered by the appellant because of the delay. The directions given by the trial judge focused the jury’s attention in general terms on the type of disadvantages that arose from significant delay between the dates the offences were alleged to have occurred and the making of the complaints and the subsequent prosecution and did not refer the jury to specific examples by reference to any evidence given in the trial.
- The range of dates specified for the offences committed against FM went back to 1986 for count 1 which was almost 35 years before the trial and to 1996 which was almost 25 years before the trial. The offending against JD went back to 1987 which was 33 years before the trial. It was apparent to the jury from some of the evidence given by the complainants and the appellant that their respective memories were affected by the lapse of time. Each of these witnesses at various points throughout her or his evidence made a specific comment to the effect of being unable to remember because it was so long ago. The length of the delay was emphasised by the trial judge in the summing up.
- There were three aspects of the delay that the trial judge expressly referred to under the subscription of “significant disadvantage”: the fact that the appellant had been denied the chance to assemble evidence as to what he and other potential witnesses were doing at the time to which the respective offences related, the appellant’s memory was not as recent, as if prompt complaints had been made, and the lack of opportunity to prove or disprove the allegation (and the example was given of a timely medical examination).
- Mr Jones of counsel who appears for the appellant identified that they were of varying degrees of importance. The two examples on which the appellant’s submissions focus are the death of the appellant’s wife in 2002 and there were no medical records available for the appellant before 1997.
- The timing of the death of the appellant’s wife in 2002 was raised a few times during the evidence. It was apparent from the evidence of the complainants and the appellant that the appellant’s wife may have had the capacity, if she had not died before the complainants first went to the police, to provide relevant evidence of the functioning of the household at various times and in respect of the specific occasions that were traversed in evidence, particularly in relation to counts 1, 2 and 12. The significance for the appellant in not being able to explore his wife’s recollection about how the household functioned and of relevant events was covered by the express reference in the impugned direction to the appellant being “denied the chance to assemble evidence as to what he and other potential witnesses were doing at the time”. The impugned direction could easily have given the death of the appellant’s wife as a specific example to illustrate this category of evidence. In this relatively short trial in which the date of death of the appellant’s wife was repeated during the evidence and the role of the appellant’s wife in the household and her presence on occasions that were referred to in the evidence, the inability of the appellant to call her as a witness (that was adverted to in the appellant’s trial counsel’s address) was obvious. The fact that the death of the appellant’s wife was not referred to in the impugned direction did not preclude the direction from being sufficient in the circumstances of this trial to inform the jury of the nature of the appellant’s disadvantage in this regard as a result of the delay in the prosecution of the offences.
- The other specific example which the appellant asserts should have been included in the impugned direction was that there were no records available for the appellant from the general medical practice he consulted prior to 1997. The outer date for offending that was particularised on the indictment where there was an opportunity for FM to view the appellant’s penis was 1 January 1996 for count 11. That was six years before the death of the appellant’s wife. It was not apparent from the appellant’s evidence in chief that he had genital warts as far back as 1 January 1996 when his evidence was that he had them for “many years” before his wife died (in 2002). That evidence may have been confused by the answer then elicited in cross-examination by the incorrect date put by the prosecutor as to when the medical practice recorded the appellant’s first consultation for genital warts. The evidence from the appellant’s medical records that covered his consultations at the medical practice on 12 March 1998, 3 and 8 August 1998, 3 September 1999, 20 February 2000 and 15 January 2002 did not refer to the appellant’s genital warts until 15 January 2002. It was implicit in the appellant’s trial counsel’s address to the jury that the jury should proceed on the basis that the appellant had genital warts in the period in respect of which the complainants gave evidence the offending was committed. As the above analysis shows, a focus on the detail of the evidence that was before the jury about the period during which the appellant had genital warts may have been to his disadvantage, as the preponderance of evidence (namely the evidence from the medical records that commenced on 12 March 1998 and his own evidence in chief) pointed to his suffering from them after the occasion that was the subject of count 11. In any case, the lack of records available in respect of the appellant’s consultations at the general medical practice prior to 1997 was the only matter that was the subject of an admission at the trial and in the circumstances of this trial was sufficiently covered by the trial judge’s general reference to the denial to the appellant of the chance to assemble evidence (which in respect of this particular example would have been in relation to the timing of his suffering from genital warts).
- There were other specific examples of less importance in the appellant’s submissions, but for similar reasons for why the two specific examples relied upon by the appellant do not support a conclusion the direction was insufficient, those other examples are covered by the general direction of the nature of the significant disadvantage to the appellant because of the delay in the prosecution for the offences.
- The appellant does not succeed on the first aspect of his challenge to the impugned direction.
Was the direction related back to the real issues in the trial?
- The real issue in the trial was whether the evidence from each complainant relative to each count was credible and reliable. On the hearing of the appeal, the appellant suggested that an issue in the trial in relation to count 2 was whether there was a functional toilet outside the house in C Street and the direction given in accordance with s 132BA(4) should have related back to that issue. The evidence in relation to the whereabouts of the toilet at the house in C Street was not an issue in the trial, but was a factual matter relied on by the appellant at the trial for testing the reliability and creditability of the complainants, but particularly JD. The direction under s 132BA(4) did not need to relate back to disputed facts peripheral to the offending conduct that were used to test the creditability and reliability of a complainant. The whole focus of the trial was on the creditability and reliability of each of the complainants in relation to each count and it is apparent from the summing up that the impugned direction was given in the context of the assessment of the witnesses’ evidence being undertaken by the jury with a view to reaching a conclusion on the creditability and reliability of each complainant. The appellant does not succeed on the second aspect of his challenge to the impugned direction.
Was the direction wrong in law?
- The appellant focuses on the use of the expression “to prove or disprove the allegation” in the impugned direction. A much better choice of word would have been “test” instead of the phrase “prove or disprove”. The appellant submits that the direction conveyed unfairness experienced by the prosecution in addition to unfairness experienced by the appellant. A fair reading of the impugned direction is that it is concerned only with the significant disadvantage attributable to the effects of the delay that were suffered by the appellant. The three examples which the trial judge gave in the direction were introduced by the statement that the “delay means that the accused has suffered a significant disadvantage”. After setting out the three examples, the last sentence of the impugned direction links those examples as disadvantages back to the introductory words that the “delay means that the accused has suffered a significant disadvantage”. The use of the words “prove or disprove” in the context of the whole direction did not alter the sole focus of the direction on identifying the significant forensic disadvantage suffered by the appellant because of the delay in the making of the complaints and the prosecution of the proceeding. The summing up had otherwise made it indisputably clear that there was no burden on the appellant at the trial to prove or disprove anything, but that it was for the prosecution to prove his guilt of each of the counts beyond reasonable doubt. If the word “test” had been used instead of “prove or disprove”, there would be no question that the direction was not wrong in law. The jury experienced each complainant being cross-examined by reference to the appellant’s case that no sexual offending was committed against either of them and how each complainant’s evidence was tested by questions that put the appellant’s version of relevant events. In the context of the trial and the whole summing up, it would have been apparent to the jury that the words “prove or disprove” were used in the sense of meaning “test” in relation to the process undertaken on behalf of the appellant at the trial in testing the evidence of each complainant. In the sense in which the direction would have been understood in the trial, the direction was not wrong in law.
- The appellant does not succeed on the third aspect of his challenge to the impugned direction.
- The appeal should be dismissed.
- Published Case Name:
R v BDJ
- Shortened Case Name:
R v BDJ
 QCA 108
Fraser JA, Mullins JA, Ryan J
17 Jun 2022