R v SDP[2022] QCA 17

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of McMurdo JA.
2. [2]
   McMURDO JA:  The appellant was charged upon an indictment with seven sexual offences, committed against one or the other of two complainants who were girls under the age of 16.  After a trial in the District Court at Gympie, the appellant was convicted of all charges.  He appeals against his convictions on two grounds.
3. [3]
   The first ground is that there was a miscarriage of justice by the trial judge not discharging the jury for suggested irregularities outside the courtroom which may have affected their impartiality.
4. [4]
   The second ground is that the judge did not give adequate directions on the use which could be made of the evidence of one complainant in considering the counts involving the other complainant.
5. [5]
   For the reasons that follow, each ground should be rejected and the appeal dismissed.

The evidence at the trial

6. [6]
   The complainants were friends of the appellant’s granddaughter, who lived with the appellant and his wife at the time of the relevant events.
7. [7]
   In 2016, one of the complainants (V) was at the appellant’s house, playing with his granddaughter and the appellant.  They were engaged in what was described as a “zombie” game, in which the appellant chased V until she was alone and isolated.  V said that he then grabbed her before placing his hands in her pants and touching her vagina.  On a different occasion, V was at the house and was allowed to ride a motorcycle.  Under the pretext of assisting her, the appellant proceeded to place his finger into her shorts and digitally penetrated her.  On the same day, V fell from the motorcycle, and while tending to V and applying an ointment for her injuries, the appellant opportunistically again digitally penetrated V.  V’s mother testified that there was an incident where V returned home with that ointment on an injury.  The other count involving V was when, again during another “zombie” game, the appellant placed his hand in the back of V’s pants and moved it towards her genitals, before V told him not to do so.
8. [8]
   There were three counts involving the other complainant (C), which, again, occurred at the appellant’s house.  They occurred during the one visit, in which C slept over.  During the day the appellant followed C into the house and groped her bottom.  During the evening, after C had gone to bed, the appellant came into the room and pulled her top down and touched her breast.  Later that night, after C had left the bedroom and moved to the lounge room, the appellant placed his hands up C’s shorts and touched her on the groin.
9. [9]
   The evidence of the complainants was pre-recorded and, in the usual way, much of the trial was occupied with the recordings of their evidence being played to the jury.  There was evidence from C that subsequent to these events, she had a falling out with the appellant’s granddaughter, after which some photographs of the granddaughter in states of undress were placed on the social media application called Snapchat, for which C was being blamed by the appellant who threatened to go to the police about it.  It was suggested to C that she had made up her complaints as a retaliation for the granddaughter and her family suggesting that C had posted the photos.  This was denied by C.
10. [10]
    The other complainant, V, said that she knew about the Snapchat photographs.
11. [11]
    There was some preliminary complaint evidence and brief evidence given by the mothers of the complainants, none of which need be discussed.
12. [12]
    The appellant did not give or call evidence.
13. [13]
    At a pre-trial hearing, a judge had refused to sever the counts involving one complainant from those involving the other, holding that the offending was so similar as to make the evidence of the complainants cross-admissible.  There is no complaint about that ruling.

Incidents involving the jury

14. [14]
    On the second day of the trial, the judge received a note from the jury as follows:

“Please hold defendant back at least 10 mins while all jury have driven away, I felt intimidated in carpark across the road.  He didn’t speak.  I did not speak to him or acknowledge him to me, but had a big smirk on his face”.

15. [15]
    The appellant’s counsel then applied for the jury to be discharged, pursuant to s 60 of the Jury Act 1995 (Qld).  By s 60(1) a judge may discharge the jury without giving a verdict if the jury cannot agree on a verdict, or the judge considers that there are other proper reasons for doing so.  In the course of argument on that application, the appellant’s counsel said that he was instructed that the appellant believed that the incident referred to in the note was one in which, as the appellant walked to his car, a woman unknown to him crossed his path and he smiled at her.  He said that he did not recognise her to be a juror.
16. [16]
    Later that day, his Honour discussed the application.  In his reasons, he said that the principle was that expressed in Webb v The Queen,^[1] where Mason CJ and McHugh J said:

“When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case … Although the role of the juror is not the same as that of the judge, … we do not think that the difference between the role of the juror and the role of [the judge] warrants any different test for alleged bias.”

In the same case, their Honours also said:^[2]

“In considering whether a reasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. …

It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”

17. [17]
    His Honour also referred to the decision of this Court in R v Fox.^[3]  In that case, jurors noticed that the defendant was “taking our names as selected jurors”.  The trial judge there arranged for the defendant’s notes of the jurors’ names to be provided to him and counsel, following which he directed the jury that the defendant had been exercising his rights to participate, with his counsel, in the selection of the jury, for which he was entitled to make notes.  The jury was directed that they were not to assume that he was writing their names with any improper intent or motive.  The judge said that looking at the list which the defendant had written, it was innocuous.  The Court held that no informed and fair minded observer of the proceedings at the trial could reasonably have apprehended any bias or lack of impartiality on the part of the jury at the time they returned, or retired to consider, their verdicts.  The Court rejected a further argument that the judge ought to have undertaken an inquiry, under s 70 of the Jury Act 1995, to find out whether any juror had formed an adverse impression of the appellant.  It was held that this was not a course which ought to have been taken, and that it wore “the appearance of an attempt to find out what the jury was really thinking”,^[4] which was inconsistent with what was said in Webb v The Queen.
18. [18]
    In the present case, the judge noted the statement in Fox by McPherson JA that “an expressed concern [by the jury] for their own safety is nevertheless not by itself ordinarily a sufficient justification for supposing that, when properly directed, [the jury] will disregard their duty of impartially assessing the evidence before them.”^[5]  He held that what had occurred would not satisfy the test in Webb and he declined to discharge the jury.
19. [19]
    The second incident involving the jury, which is part of the first ground of appeal, was the subject of a jury note received by the judge on the fourth day of the trial, during the course of the jury’s deliberations.
20. [20]
    This note was as follows:

“Last night after [we] left for the evening, one of us was approached by a gentleman who lives across the road from the courthouse.  He claimed he was looking out his window that faces the courthouse and observed a bearded man in a blue shirt who he claimed was taking photos of the jury members as we left the building.  After the photos he walked away in the opposite direction”.

21. [21]
    In discussing this note with counsel in the absence of the jury, the judge commented that there was “a degree of hearsay” in the note, in that none of the jurors had seen what had been related to them.  He also observed that it is not uncommon for interested members of the public to photograph courthouses, and volunteered that he himself had done so at this courthouse and sent the photographs to his family.  For these reasons, it seemed to the judge that this observation of the neighbour could have no adverse impact upon the jury.
22. [22]
    The prosecutor and the appellant’s then counsel agreed, the latter suggesting to the judge that when the jury returned, they should be told that his Honour had photographed the courthouse.  When the jury returned he repeated his comments, including those about his own photography.  He then issued a warning to the public that in “the unlikely event that anyone is actually taking photos of the jury, rather than of the courthouse, or something else entirely, it can be an offence to take a photo that identifies a juror, depending on what you do it for and what you do with it.”  Returning the jury, his Honour concluded by saying that he had explained “why there are many, many explanations for this, other than things that need – really should be of concern to you” and that he intended to continue with the trial unless a member of the jury felt that they could not be impartial in the case.  There was no indication from any juror in that respect, and the trial continued, with the evidence of the complainants being replayed to the jury as they had requested.

The first ground of appeal

23. [23]
    The issue in the first ground of appeal is whether by the combined effect of those incidents, there was a miscarriage of justice.  The test, according to Webb v The Queen, for a trial judge to determine whether a juror or the jury should be discharged is also to be applied in an appeal against conviction on the ground of a miscarriage of justice.^[6]  As is common ground, the test to be applied is whether the events were capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror or jurors might not have discharged their task impartially.
24. [24]
    The appellant’s argument accepts that either of these two incidents, in the absence of the other, was incapable of giving rise to such an apprehension or suspicion.  The argument is that the seriousness of the reported photographing of the jurors, as they left the courthouse, was heightened by the earlier event in which a juror had encountered the appellant as she left the building.
25. [25]
    It is submitted that notwithstanding what the jury was told by the trial judge, the matter reported by the second note, in light of the earlier event, was capable of giving rise to an apprehension or suspicion that someone associated with the appellant was attempting to intimidate them and induce them to acquit the appellant.  It is said to be a relevant circumstance that this occurred in a regional town, where jurors might be more concerned that they could be identified from photographs.  It is argued that the risk to the appellant was that one or more jurors, believing that there was an attempt to intimidate them, might think adversely of the appellant and be more inclined to accept the prosecution case.
26. [26]
    For the respondent, it is argued that, as was said in Webb,^[7] the fair minded and informed observer would also consider the effect of the judge’s warning to the jury.
27. [27]
    The effect of what the judge told the jury, in response to the second note, was that there was no cause for concern by them, because there were several probable and innocent explanations for what the neighbour had reported.  The respondent’s submission is that this would remove the possibility of a reasonable apprehension of a juror being partial.
28. [28]
    The question here is not one of an assessment of the wisdom of the judge’s response to the note.  His Honour may have too readily dismissed the possibility that this person was photographing jurors for an improper purpose.  Be that as it may, the question is whether, given the way his Honour did proceed, the hypothetical member of the public could apprehend that one or more jurors would be more inclined to accept the prosecution case as a result of the incident.
29. [29]
    In my conclusion, such an apprehension could not be reasonably held given the instruction by the judge that the jury was to make nothing of the incident.  It is to be expected that jurors will follow the instructions of a trial judge, and that was so in this case, where the jury would assume that a judge would bring a professional knowledge and experience to the task of ensuring a safe and fair court environment.
30. [30]
    Consequently, in my conclusion, it is not demonstrated that on this ground, the trial miscarried.

The second ground of appeal

31. [31]
    The evidence of one complainant was admitted in the trial of the counts involving the other complainant on the basis described in Hoch v The Queen,^[8] where Mason CJ, Wilson and Gaudron JJ said:^[9]

“Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v. Sims) or as corroboration (Reg v. Kilbourne) but the better view would seem to be that it is relevant to prove the commission of the disputed acts. See Boardman, per Lord Hailsham and Lord Cross; Sutton, per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman:

“This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.”

32. [32]
    In that passage in Boardman, Lord Wilberforce referred to the possibility of a striking similarity of the several accounts of witnesses as having a rational explanation that they arose from “a cause common to the witnesses”.  His Lordship explained that possibility as follows:^[10]

“I use the words “a cause common to the witnesses” to include not only (as in R v Sims [1946] KB 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed. This is well illustrated by Reg v Kilbourne [1973] AC 529 where the judge excluded “intra group” evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.”

33. [33]
    In Hoch v The Queen, it was held that on charges of sexual offending against three boys, the evidence of each of them, although strikingly similar to that of the others, was inadmissible because the similarity was capable of a reasonable explanation on the basis of concoction.  To an extent, the effect of Hoch in Queensland was later qualified by the enactment of s 132A of the Evidence Act 1977 (Qld), which provides:

“In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.”

That provision affected the common law test of admissibility, but it did not affect the relevance of an alternative explanation for the similarity of the accounts that they had arisen from a cause common to the witnesses.  Most commonly, this will amount to some collusion between the witnesses.  However, as Lord Wilberforce explained in the passage which I have set out, it might include other cases, such as where, without any collusion between witnesses, the evidence of one of them might still have been derived from the evidence of the other.

34. [34]
    The appellant’s argument is that the trial judge’s summing up was deficient because it did not instruct the jury to consider whether the similarity could be explained by any cause common to the witnesses, but instead confined them to the possibility of collusion between these two complainants.
35. [35]
    That argument must be assessed by reference to way in which the appellant’s case was conducted at the trial.  Nothing was put to either complainant, when cross-examined, as to a possibility that in some way their testimony had a cause common to them, by collusion or otherwise.  However, as noted earlier, there was evidence that subsequent to the events in question, the complainant C fell out with the appellant’s granddaughter, after which photographs of the granddaughter in states of undress were placed on social media and for which C was being blamed.  The cross-examiner did suggest to C that she had made up her complaints as a retaliation against the granddaughter and her family (including the appellant).  The other complainant, V, said that she knew about the photographs.
36. [36]
    In his address to the jury, the appellant’s counsel referred to the evidence of animosity between the granddaughter and the complainants, and to the evidence that the appellant had threatened to go to the police about the photographs after which C made the allegations against him.  Counsel said:^[11]

“Now, you might suppose that she was concerned about police getting involved with the Snapchat and the best way [around] it is [to] drum up a complaint about [the appellant], attack [his] credibility before the police get involved.  And remember she’s a young girl, and by the time the police get involved and it goes to court, it’s far too late to recant.  You might suppose that she might consider that she might get in trouble herself if she recants.  You could take the view that [V] was colluding with her because they were friends.  And [V] didn’t like [the appellant’s granddaughter].  So you might take that they colluded about that.”

37. [37]
    After that address, and in the absence of the jury, the trial judge asked the appellant’s counsel whether (previous) counsel had ever put to V that she had colluded with C, and counsel confirmed that he had not done so.  The prosecutor agreed that the possibility of this collusion should still be put to the jury, but with a direction that because the witnesses were not asked about it, they were not given an opportunity to comment upon it. 
38. [38]
    His Honour directed the jury accordingly.  Relevantly, the judge said:^[12]

“First – you won’t be surprised by this one – you’ve got to be satisfied the evidence of each complainant is independent of the other, and by that I mean, you have to be satisfied that it’s not a story concocted in a conspiracy between the girls. The value of any combination, and likewise, any ‘strength in numbers’ type evidence is completely worthless if there’s any real risk that the complainants got together and falsely concocted similar stories. You wouldn’t be surprised to know that’s the law. I direct you that you can’t use the evidence of the two girls in combination, unless you are satisfied there’s no real risk that the evidence is untrue because they conspired to concoct the story. To be satisfied there’s no real risk means this: a real risk is one that’s based on the evidence, but not one that is fanciful or theoretical. It’s not a particularly high bar.

Now, Mr Todman submitted you might think there was a real risk of concoction for the following reasons. First, he submitted [C] had an axe to grind with [the appellant’s granddaughter], and I’m going to remind you of the detail of his submissions about [C’s] fight with [the appellant’s granddaughter] and her grandparents later in the summing-up. It’s sufficient to note at the moment that’s the first step in a collusion argument. Second, he submitted that [V] gave evidence she didn’t like [the appellant’s granddaughter] anymore either.

Third, he submitted that [V] and [C] were friends, and to his list, I comment, you might think this one would be added, but there was a delay between the alleged offending in each case, and the making of the initial complaint in each case, which provided a period of time in which a collusion or a conspiracy could occur. However, collusion requires cooperation by the complainants together, like all conspiracies. In that regard, you might have noticed that when [V] was cross-examined, it wasn’t suggested to her by Mr Connolly (who was cross-examining on behalf of [the appellant]) that [V] had in fact colluded with [C] to concoct her complaints.

And the same was true with [C’s] cross-examination. Although her credit was very strongly attacked on the basis of her gripe with [the appellant’s granddaughter], it wasn’t suggested to her in cross-examination that she had concocted an account with [V]. So you don’t have the benefit of hearing what [V] and [C] might have said in response to the suggestion they conspired to come up with similar stories generally, or in response to the specific matters I’ve just listed in particular. If it was put to them, you know, they could have concocted it because they were friends – who knows what they would have said about the state of their friendship from time to time and so on.

Now, even though it wasn’t put to them in cross-examination, and you haven’t heard what their side of the story might be about those matters, it would be wrong to just assume from that alone that there was no concoction. It’s frequently the case that a defendant won’t have any direct evidence of a conspiracy to put to the complainants. That’s the nature of conspiracies. However, in assessing this issue, you may take into account that you haven’t heard what [C] and [V] would have said if they were given the opportunity to explain the matters relied upon by the defendant in this trial, as providing a basis for you to conclude there was a real risk of collusion.”

39. [39]
    And later in the summing up, when referring to the respective arguments, his Honour reminded the jury of his directions as to collusion between the complainants.
40. [40]
    The appellant’s argument to the jury was that the similarity between the evidence of the two complainants was explicable by an animosity of C towards the appellant and his family, and V’s knowledge of the circumstances of that animosity, in the circumstance where the two complainants were friends.  That case was clearly explained to the jury by the judge, and notably, there was no complaint by the appellant’s trial counsel in that respect.  I would accept that had there been another explanation for the similarity of the evidence, from some other cause common to the witnesses, the judge would have been obliged to direct the jury about it notwithstanding the absence of an argument to that effect by the appellant’s counsel.  However no such alternative explanation was suggested by the evidence, and nor is it suggested in the appellant’s argument in this Court.  The trial judge was obliged to direct the jury, not in the abstract, but by reference to the evidence, and the possibilities which it raised.
41. [41]
    There was no deficiency in the summing up as is suggested by the second ground of appeal.

Order

1. I would order that the appeal be dismissed.

42. [42]
    WILLIAMS J:  I have read the reasons of McMurdo JA and I agree with his Honour’s reasons and order.