R v SDU[2022] QCA 176

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Henry J and with the order proposed by his Honour.
2. [2]
   NORTH J:  I agree with the reasons of Henry J and that the appeal be dismissed.
3. [3]
   HENRY J:  The appellant appeals his rape convictions on grounds that the learned trial judge failed to direct the jury about lies and uncharged acts.
4. [4]
   No such directions were sought below.  The appellant therefore assumes the challenge of establishing, pursuant to s 668E(1) Criminal Code (Qld), not that there was a wrong decision of law but that the alleged failure to give the directions means there was a miscarriage of justice.  It is a formidable challenge because the appellant necessarily argues the directions were needed to avoid misuse of evidence in circumstances where that risk was remote.

Background

5. [5]
   The appellant was tried and convicted on an indictment charging him with two counts of rape.  The complainant in each instance was his daughter.  The alleged penetration was digital.
6. [6]
   Count 1 was alleged to have occurred when the family of the appellant and complainant were living in Sarina.  The complainant was about nine or 10 years old.  She was asleep on the lounge couch at night and awoke to discover her father, who had come home drunk, had pulled her leggings down and was moving his fingers fast in her vagina.  She lay still, not knowing what to do.  After a while her father moved to the other end of the couch.  She went to the toilet and then lay down in another room with her mother.
7. [7]
   Count 2 alleged another digital rape some years later in the latter part of 2018 when the complainant was 13 and the family was living in Mackay.  On this occasion the complainant was asleep in her locked bedroom and awoke to discover her father had unlocked the door, entered and had again put his fingers in her vagina, in this instance by pulling her underwear to the side.  She was scared and did not know what to do after waking up.  Her father then walked out of the room.
8. [8]
   The complainant made no immediate complaint to others.  Later, during 2019, she made a number of non-detailed disclosures.  She told her boyfriend that her father would come into her room while she was trying to sleep and do things to her, that it first started when she was nine or 10 and her father would sometimes be outside of her room “saying stuff like take off your clothes”.
9. [9]
   The complainant also wrote a note which was discovered by her mother in 2019.  The complainant kept the note.  She later showed it to a school friend and then destroyed it.
10. [10]
    The complainant’s mother testified that, in the note, the complainant wrote about having troubles with her boyfriend and also mentioned “that her dad had been touching her”.  Her mother spoke with the complainant about the letter and the complainant told her mother that the appellant had touched her, though no detail of the type of touching was given.
11. [11]
    The complainant’s mother testified there was then a conversation between her, the complainant and the appellant about the note and that the conversation ended with the complainant giving her father a hug and a kiss.  There was no evidence any detail of the type of touching was given in that conversation either.
12. [12]
    The complainant also showed the note, which was subsequently destroyed, to a schoolfriend of hers.  The schoolfriend testified that the note referred to a variety of problems the complainant was having and that part of it mentioned “something about her dad touching her” and that he “used to like do things to her”.  Her schoolfriend asked the complainant about that and the complainant said that she had woken up and he was next to her, touching her and “put his fingers really close to her privates”.
13. [13]
    The complainant subsequently sent a text to her aunt which read:

“I’m pretty sure it started when I was like 9 or 10 and he came home drunk one night and I was sleeping on the couch and he came layed right at my feet and touch my privets and once that started happening I didn’t wanna move bc I thought he was going to hurt me and after that night it’s been going on up until now except for some nights it dosent happen because I wake up from noses or other nights he would just be sitting and my door telling me to take my clothes off and that I’m sexy or stuff like that and bc my walls aren’t finished there’s normally holes in them when I wake up and I’m pretty sure he watches me though them but the last time it almost happend was I think 2 weeks ago and he tried to come though my window.”^[1]

14. [14]
    The complainant’s aunt contacted the police, resulting in the police interviewing the complainant who described the two touchings which attracted counts 1 and 2.
15. [15]
    The appellant was interviewed by police and denied any sexual touching of his daughter.  He was told the police were investigating a complaint of “sexual related offences”.^[2]  He subsequently indicated the police contact was the first time he had been made aware of any concerns in relation to the complainant.^[3]  Later in the interview, when specifically asked if he recalled anything about a note his daughter had written, he referred to the occasion when his wife had found the complainant’s note, explaining that the three of them had talked about it and his daughter had then hugged and kissed him.^[4]  He acknowledged there may have been occasions when he would go into the complainant’s room, but only in the context of making sure that she was not on her phone, it apparently having been a parental concern that she was always on the internet.^[5]
16. [16]
    The appellant’s interview with police was exhibited at the trial but he did not give evidence.

Appeal Ground One: No lies direction

17. [17]
    The first ground of appeal is:

“The learned trial judge failed to direct the jury as to lies in a post offence police interview which thereby occasioned a miscarriage of justice.”

18. [18]
    This was not a case in which it was or realistically could have been contended that the appellant’s answers in his interview with police involved lies told out of a consciousness of guilt.  Thus, it was not the kind of case in which a direction of the kind contemplated in Edwards v The Queen^[6] was required.
19. [19]
    It was of course a case in which the jury had to reject the appellant’s denial of the offences if it was to act on the complainant’s account of the offences as reliable.  In such a case, as the plurality in Zoneff v The Queen^[7] explained, it is “unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given”.  The plurality in Zoneff suggested the terms of a direction which may be given as a safeguard against misunderstanding in cases where there is a risk of the jury inferring guilt from lies which are relevant only to the credit of a defendant’s account.^[8]  However, a direction in the terms suggested in Zoneff is only apt where there exists such a risk.  It is not required merely because it is suggested something a defendant has said should be rejected as untrue.^[9]
20. [20]
    In the present case the appellant argues there was a risk the jury would regard lies told by the defendant in his interview with police as stemming from a consciousness of guilt.  That is said to be because the Crown Prosecutor argued the defendant was evasive with police about what he knew of the complainant’s allegations prior to the commencement of the interview.  In the learned Crown Prosecutor’s closing address, she relevantly submitted:

“So turning then to his denials and why, in my submission, you would simply reject them.  Unlike [the complainant], he, in my submission to you, hammed up in the interview.  He wasn’t sincere.  His responses were putting it all back on the complainant.  She is breaking my heart.  He sought to repeatedly say that he tried to be a good dad but that at other times, he said that he was a hard person to get along with.  He said that he didn’t want to hurt his children, rather than he wouldn’t hurt [the complainant].  The very beginning of the interview, you might have noticed that he was yawning.  Yawning when he’s being interviewed about sexual offending.  And in my submission, he was deliberately evasive and untruthful about what he knew before that interview, about any allegations.

He’s asked initially by police if he knows anything about them.  Said that this is the very first time and that [the complainant] had raised with him a concern about a window.  So nothing to do with sexual offending.  But then later in the interview, says that [the complainant] had, in fact, asked him about touching.  So he did know that there were concerns and he wasn’t particularly forthcoming about that.

So ladies and gentlemen, like I said, put his denials to the side.  Reject them.  Think of what he does say that corroborates [the complainant’s] account.  Come back to the Crown case, why you would find [the complainant] a credible and reliable witness because of her evidence and what supports it.”^[10]  (emphasis added)

21. [21]
    The Crown Prosecutor’s reference to the defendant’s evasiveness about what he knew of the allegations prior to the interview occurred in the context of her addressing various features in support of the conclusion that his denials should be rejected and put to one side.  It was not suggested the alleged evasiveness, or any other feature of the interview, provided evidence he was guilty.  Further, there was no risk of the content of the interview being misused in that way.
22. [22]
    The appellant submits there was a risk of such misuse because the fact the appellant did not at the outset of the interview mention his earlier knowledge of the complainant’s note would be understood as meaning “that he did not wish to speak of the earlier raised allegations because he was engaged in damage control”.^[11]  This is just a brief, colourful way of saying there was a risk the jury might infer the appellant wanted to avoid the difficult task of speaking of his awareness of an occasion when his daughter had complained about his treatment of her in terms more vague and less concerning than she apparently now had.  Such a risked inference is not of an awareness of guilt and is at worst of a lack of candour, bearing upon the credibility of the appellant’s account.
23. [23]
    Further, the risk of an inference of lack of candour was itself remote.  When the appellant was first asked in the interview if he knew anything about the note his daughter had written, he immediately volunteered that his wife had mentioned it to him and had asked if he had ever touched the complainant.  It will be recalled the note itself contained no detail about the way the appellant had been touching her.  Nor was the appellant said to have been told of such detail when his wife and daughter spoke to him.  Against that background it is a considerable stretch to infer a lack of candour from the appellant’s earlier response in the interview that it was the first he had been made aware of concerns.  That is particularly so in circumstances where prior to that response the police had already identified their concern as being a complaint of “sexual offences”.
24. [24]
    It is scarcely surprising a Zoneff direction was not sought below.  The appellant’s aforementioned answers were unlikely to be regarded as lies but, even if they were, they carried no risk of being misinterpreted as evidencing guilt.  A Zoneff direction was not required.  Ground one of the appeal must fail.

Appeal Ground Two: No direction re uncharged conduct

25. [25]
    Ground two of the appeal is:

“A miscarriage of justice arose because the learned trial judge failed to direct the jury as to uncharged acts.”

26. [26]
    To succeed on such a ground the appellant must demonstrate both that:

1. (1)
   the direction should have been given; and
2. (2)
   it is reasonably possible the failure to direct may have affected the verdict.^[12]

27. [27]
    The ground’s reference to “uncharged acts” might more helpfully be thought of as referring to conduct of the defendant additional to the conduct attracting the charges.  That is because in sex cases, a defendant’s uncharged acts of sex offending may be but one potential category of conduct additional to that charged.  A second category of additional conduct may be conduct exhibiting sexual interest in the complainant.  A third category of additional conduct may be conduct which provides contextual background about the relationship of the complainant and defendant.
28. [28]
    Whether and what direction is required about the additional conduct will invariably depend upon the categories of additional conduct, the purpose for which they are advanced and the risk of their misuse for another purpose.  For example, in a case involving the first two categories mentioned above, if the conduct is to be relied upon for the purpose of evidencing a propensity making it more likely the appellant committed the charged offences, then a direction as to its use for that purpose would ordinarily be required.^[13]  Conversely if the additional conduct is not relied upon for that purpose and is only relied upon as contextual background about the relationship, there may nonetheless be a risk of the jury impermissibly using the evidence for that purpose.  Where there is such a risk a clear direction should be given warning against the misuse of the evidence for that purpose and explaining the limited contextual purpose for which it is tendered.^[14]
29. [29]
    The appellant argues that that there was such a risk in this case, submitting that the evidence of additional conduct, adduced below, alleged additional sex offending and other conduct exhibiting sexual interest.  The argument relies upon isolated consideration of some passages of the complainant’s interview with police.  It is exposed as an unsustainable argument when regard is had to the whole interview and the sequence in which it developed.  It appears the passages relied upon by the appellant were either introductory references to the two occasions of charged offending or were generalised descriptions of non-sexualised conduct, falling into the above-mentioned third category of contextual background evidence about the relationship.
30. [30]
    In the first of the passages relied on, the complainant mentioned her father had been trying to come into her room and touch her and “like when I wake up, he’s like either touching my thighs, or stuff like that”.^[15]  However, those remarks were made at the start of interview, prefacing her descent into the detail of what had been occurring, during which she specifically described the two charged episodes.  After the complainant gave that detail the police asked her to tell of another time that she could remember.  In response she explained they were the only two that she could “really remember”.  Problematically for the appellant’s argument, there was no ensuing assertion from the complainant that she had in fact been touched like that on other occasions.
31. [31]
    The complainant’s disclosures to other persons did carry the implication there had been repetitive sex offending against her but only vaguely so and, as the jury were properly told, those disclosures were not evidence of the truth of their content.^[16]  The complainant was the sole source of evidence of any alleged misconduct by the appellant and when the whole of her account is considered the only offending alleged by her was the two charged offences.
32. [32]
    The appellant also relies on the complainant saying in her interview with police that two weeks earlier her father had tried to get into her room through her window.  That was said in the preface stage of the interview.  When the detail of that disclosure was explored it emerged there had been some form of disturbance from outside the house in connection with the complainant’s bedroom window but the complainant had not actually witnessed anyone outside.  Moreover, on the complainant’s own account her father would have been able to access her bedroom by its door and, even if the door were locked, he had access to the key.
33. [33]
    The appellant also places reliance on the complainant having told police of an occasion at the start of 2019, after her dog died, when she woke up and her father was laying on her bedroom floor and her mother came and told him to get out of the room.  Again, this was mentioned in the preface phase of the interview.  It was not revisited, save that in cross-examination the complainant again explained the event occurred after her dog had died, though she described events as if she had been awake when the appellant had come in and lay down on the floor.^[17]  Without more it was an episode of neutral significance.
34. [34]
    Reliance is also placed upon the complainant saying in her interview with police that once every week she would wake up to see her father standing in her room looking at her.  This information was volunteered after the complainant gave the detail of the two offending episodes and the interviewing police then questioned her as to whether anything else had happened in between the two offending occasions.
35. [35]
    When the passages relied upon by the appellant are considered in proper context it is apparent the complainant’s only evidence of conduct by him in connection with her, other than in committing the two charged offences, was his repeated physical presence in her room.  This involved one instance of him lying on her bedroom floor and about weekly instances of her waking up and noticing him standing in her room.
36. [36]
    A difficulty for the appellant’s present ground is that parental presence in a child’s bedroom from time to time, including when the child is sleeping, is of itself unremarkable.  There are many innocuous reasons why such presence may occur.  In this case there was positive evidence of one such innocuous reason, namely to check the complainant was not on the internet.^[18]  Moreover, with one potential exception, this is not a case in which there was evidence of the appellant’s aforementioned presences occurring contemporaneously with words or deeds indicating sexual interest or desire for sexual gratification.  The potential exception was the complainant’s allegation, in the preface phase of her interview with police, of awaking to her father touching her thigh.  However, as the interview progressed, it appeared that allegation related to one of the two charged offences.  It was not referred to in the subsequent exercise of ascertaining what misconduct, other than the two offences, had occurred.
37. [37]
    When the complainant’s evidence is considered in sequence, in its full context, it is apparent the complainant did not allege there had been episodes of sexual misconduct towards her other than the two charged episodes.
38. [38]
    The complainant’s evidence of the appellant’s conduct other than the charged offending was contextual or background evidence about the relationship and household habits of the defendant and complainant.  It is described hereafter as relationship evidence.  It was evidence of kind rendered admissible by s 132B(2) Evidence Act 1977 (Qld), being “relevant evidence of the history of the domestic relationship”.  Indeed, it was evidence of a kind which was admissible long before the enactment of s 132B, being relevant for the purpose, as Menzies J put it in Wilson v The Queen,^[19] of “throwing light upon the relationship” so that the jury do not have to “decide the issue as if it happened in a vacuum”.
39. [39]
    The trial judge did not give the jury a direction which explained the purpose to which the relationship evidence could be put or which warned the jury against misusing it as evidence of propensity.
40. [40]
    Was a direction explaining the purpose of the relationship evidence required?
41. [41]
    In HML v The Queen^[20] Kiefel J observed that the admission of relationship evidence for the limited purpose of providing answers to questions which a jury might otherwise have “is conditioned by the requirement of a direction to the jury as to the limits on the use to which the evidence can be put”.  That potentially suggests that whenever relationship evidence is adduced a direction as to the limits of its use is mandatory.  However, her Honour was there concerned with the type of case in which there is a risk of relationship evidence being wrongly used as evidence of propensity or sexual interest, making it more likely that the defendant committed the charged offences.  The better view is that her Honour was only referring to the need for a direction where there was a risk of the “limits” of the evidence’s legitimate use being exceeded.  That view is consistent with these observations by Hayne J in the same case:

“[P]roper identification of the real issues in the case may mean that it is unnecessary to give any direction to the jury about some of the uses to which the evidence might be put (in particular its use in providing the context within which events the subject of charges are said to have occurred).”^[21]

42. [42]
    There was nothing about the real issues in the present case which required a direction identifying the self-evident contextual purpose to which the relationship evidence could be put.  It would have been appropriate to give such a direction as an aid to explanation of the limits of the evidence if a warning against the risk of misuse of the relationship evidence was required but it was not a direction which was in this case necessary of itself.  Moreover, it is not reasonably possible that the mere absence of such a direction could of itself have affected the verdict.
43. [43]
    The real issue then is whether a warning against the risk of misuse of the relationship evidence was required.
44. [44]
    The law does not require that in every case where relationship evidence is led the jury must be warned against using the evidence as tendency evidence.^[22]  As the plurality explained in Hamilton v The Queen,^[23] the need for such a direction will be dependent upon how real or remote the extent of the risk of misuse is, in the case at hand.^[24]
45. [45]
    For reasons explained above, the only potentially concerning aspect of the relationship evidence given by the complainant was her evidence of the appellant’s repeated physical presence in her room.  That the complainant chose to refer to the appellant’s repeated presences in her room, other than on the occasions of the charged episodes, may at worst have conveyed by implication that she suspected those other presences were connected with some sexual interest in her.  However, her descriptions of the other presences were only vulnerable to being interpreted as driven by sexual interest if the jury were in any event persuaded the two charged offences had occurred, they being the only events involving overtly sexualised conduct.  Putting it another way, it would only have been in light of a conclusion that the two charged offences did occur that the innocuous evidence of other presences might, in hindsight, be interpreted more sinisterly as possibly driven by sexual interest.
46. [46]
    The risk of misuse of the evidence of other presences, if there was such a risk, could therefore only have been the risk the jury would reason in a circle backwards from a conclusion of guilt of the two charged offences to interpret the appellant’s other outwardly innocuous presences as driven by sexual interest and use that interpretation in support of a conclusion of guilt of the two charged offences.  There are of course cases, typically involving circumstantial evidence, where it is logical to reason back and forth between pieces of incriminating evidence, some stronger than others, to arrive at a conclusion of guilt based on the combined force of the evidence.  But the evidence in this case of other presences was not incriminating and could not logically aid the combined force of the evidence which did incriminate the defendant.
47. [47]
    The erroneous circular reasoning described above is so illogical and the risk of a jury engaging in it so objectively remote that, unless that risk was heightened by some other aspect of the trial’s conduct, the direction now sought was neither required nor is it reasonably possible its absence could have affected the jury’s verdict.
48. [48]
    The risk was not heightened by the actual conduct of the case before the jury.  As mentioned above, the trial judge specifically directed the jury they could not act on the complainant’s disclosures as evidence of their truth.  The jury therefore knew the complainant’s evidence was the only evidence of the appellant’s misconduct.
49. [49]
    The prosecution below did not advance any submission that the complainant’s evidence of the other conduct of the appellant supported a conclusion of guilt of the charged conduct.  Indeed, making a virtue of necessity, the Prosecutor’s closing address positively highlighted that there was no misconduct alleged other than the two charged acts as being a feature enhancing credibility.  To adopt the conclusion of the plurality in Hamilton, the Crown’s conduct of the case “made the risk that the jury might … detour into propensity reasoning distinctly remote”.^[25]
50. [50]
    So too did the defence’s conduct of the case.  Defence counsel’s closing address positively highlighted the absence of other misconduct as a feature undermining credibility.  Moreover, defence counsel evidently did not perceive any risk of the jury detouring into propensity reasoning, for no direction warning against such reasoning was sought.
51. [51]
    That such a direction was not sought is, as Sofronoff P observed in R v ABD,^[26] “significant to the question whether there has been a miscarriage of justice”.  His Honour explained:

“An appellate court cannot have the same appreciation of everything that happens at trial that the trial participants themselves have.  That is why counsel’s omission to take an objection becomes important.  The fact trial counsel takes no objection to matters put or omitted to be put by a trial judge in a summing up is cogent evidence, in most cases, that counsel, absorbed in the atmosphere of the trial, saw no injustice or error in what was done.”^[27]

52. [52]
    More recently in GBF v The Queen^[28] the High Court observed in a similar vein:

“The fact that defence counsel does not seek a direction may support a conclusion that in the context of the trial the direction was not required.”^[29]

53. [53]
    Of course, there may be cases where the conduct of an appellant’s counsel below is so inexplicable that an omission to seek a direction will carry no adverse significance to an appeal’s prospects.  This is not such a case.  The evidence and the way the trial had been conducted meant the risk of misuse of the relationship evidence was remote.  That a direction of the kind now contended for was not sought supports that view.  So too does the fact the direction now contended for carried the forensic disadvantage that to warn against impermissible propensity reasoning would necessarily highlight such reasoning; reasoning which was otherwise unlikely to have been contemplated by the jury.^[30]
54. [54]
    That such a direction was not sought below is therefore a consideration further supporting the view, already arising from the evidence and the way the trial was otherwise conducted, that there was no realistic risk of misuse of the relationship evidence.
55. [55]
    For all of these reasons, a direction of the kind now contended for was not required and it is not reasonably possible the absence of such a direction may have affected the verdict.  Each such conclusion is fatal to ground two.

Order

56. [56]
    I would order:

Appeal dismissed.