R v BDX[2023] QCA 35

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  For the reasons given by Dalton JA and Davis J, I joined in making the orders for the disposition of this appeal on 23 February 2023.
2. [2]
   DALTON JA:  I agreed with the orders made on 23 February 2023 for the following reasons.
3. [3]
   The appellant lived in a de facto relationship with the complainant child’s mother.  When the child was eight he took part in an interview with police (24 July 2020).  He gave an account of two separate incidents of indecent dealing perpetrated upon him by the appellant.  The child further told police that the appellant had threatened to kill him if he told anyone of the indecent dealings.  The appellant was charged with two counts of indecent dealing.  In October 2021 those charges were discontinued and a one count indictment against the appellant was presented; alleging one incident of indecent dealing.  The appellant pleaded not guilty.
4. [4]
   There was a short trial (31 March – 1 April 2022).  The complainant’s 24 July 2020 interview was admitted pursuant to s 93A of the Evidence Act 1977 (Qld).  So was some short, pre‑recorded, cross-examination of the child.  It was not put to the child that the indecent dealing did not take place.  There was no cross-examination as to why the child initially asserted two indecent dealings, and now said there was only one.  The child was asked, “Has any adult told you to say something that you know to be a lie?”.  The child answered, “I can’t remember if an adult did or not”.  The child’s father gave evidence of a preliminary complaint.  He said that the child told him of one indecent dealing.  Further, the father said that the child reported the appellant telling the child that if he told anyone about it, the appellant would kill the child and the child’s whole family.  The appellant gave evidence in which he denied any indecent dealing.
5. [5]
   On this appeal, leave was given to the appellant to rely upon the affidavit of the complainant’s mother.  This leave was not opposed.  The affidavit contained fresh evidence of a very material matter.  The mother swore that on 6 April 2022 (six days after the trial) the child told her that the appellant “never hurt me”.  She clarified with the child that that was “the complete truth” and he said, “Yes Mum, [the appellant] never did anything to me”.  The mother then took the child to a counsellor.  The counsellor spoke to the child without the mother being present.  After the session, the counsellor told the mother that the child had told her something, but she was not sure how to address it and would have to speak to her supervisor.  After that, the mother and child drove home, in the car the child said to the mother, “Mum, I told her [the appellant] didn’t hurt me”.
6. [6]
   This Court also gave leave to the Crown to rely upon an interview conducted by police with the child on 10 February 2023 as fresh evidence on this appeal.  Once again it is  highly material, and leave was not opposed.
7. [7]
   The child was 11 years old at the time of the 2023 interview.  The transcript of the interview is 20 pages long.  Although it contains many irrelevant matters where police try to establish some rapport with the complainant, the interview does show police being very persistent and particular about the matter in issue.  They approach the subject matter of whether or not the alleged indecent dealing occurred at all in several different ways.  The responses from the complainant were all definite, and they were all consistent with each other.  The complainant says four times that the appellant never hurt him, and describes the appellant as “good” and someone who would not hurt a fly.  He says the appellant never threatened him.  The complainant says three times that his father asked him to say that the appellant had touched him.  He says that his father hated the appellant, and that his father threatened that if he (the complainant) did not make the false allegations, his father would beat him.  He makes reference to his father threatening to beat him four times.  Additionally, he agreed with the police summation at the end of the interview:

“SCON PRYCE-DAVIES:  Yeah?  You feel a bit safer at home?  Okay.  So these things you had a chat with, um, [previous police statement taker] about, none of these things have really happened, is that what you’re saying?

COMPLAINANT:  Yeah.

SCON PRYCE-DAVIES:  And you th-, thought that it was necessary to say these things to [previous police statement taker], because you thought your dad would beat you up if you didn’t say these things about [appellant].  Is that right?  Okay.

COMPLAINANT:  ‘Cause I was like nine, turning ten.

SCON PRYCE-DAVIES:  Mmhmm.

COMPLAINANT:  And I just didn’t know what to do, ‘cause I didn’t wanna be beaten up.  ‘Cause I went to my dad’s every weekend.”

8. [8]
   The Crown conceded on the hearing of this appeal, that the appeal ought to be allowed.  The real question for determination was whether or not there ought to be a retrial, or whether this Court should enter a verdict of acquittal.  The Crown asked for a retrial and urged this Court not to acquit in circumstances where it had not investigated what was said to the counsellor, and where there were inconsistencies between what the child’s mother swore in her affidavit as to how the child came to tell her that the appellant had not hurt him, and the child’s version of how that conversation arose.
9. [9]
   At best for the Crown, investigation of those matters might provide evidence that a jury on a notional retrial might be asked to interpret as encouragement by the complainant’s mother for him to retract the evidence he gave at trial and statements to the counsellor consistent with that, and with the complainant’s evidence at trial.  Even if this is assumed in favour of the Crown, the difficulty is that a jury at the notional retrial would have: (a) a preliminary complaint to the father of one indecent dealing; (b) statements to the police in 2020 of two indecent dealings; (c) evidence at the first trial of one indecent dealing; (d) a statement to the complainant’s mother made soon after the first trial that there was no indecent dealing; (e) evidence both ways about whether the mother influenced the making of this recantation; (f) a statement contradicting the recantation made to the counsellor, and (g) very definite statements made formally to police in 2023 that there had been no indecent dealing, and that the father had procured the complaint by threats of violence to the complainant.
10. [10]
    In these circumstances this notional second jury, properly instructed, must have a reasonable doubt about the complaint which rested solely on the evidence of the complainant – M v The Queen^[1] and Pell v The Queen.^[2]  It simply would not be open to such a jury to be satisfied of the complainant’s reliability beyond reasonable doubt.  For this reason my view was that this Court should acquit the appellant.

Browne v Dunn

11. [11]
    Although it is not necessary for the disposition of this appeal, I do think that the course taken by the trial judge in reaction to the failure of defence counsel at trial to comply with the rule in Browne v Dunn would, independently, warrant a retrial, although not an acquittal.  Telling the jury that they were to proceed on the basis that the child would not have retreated from his version of events in cross-examination, would almost certainly have had the effect of bolstering the child’s credit in the eyes of the jury, with a corresponding detriment to the credit of the appellant, who had given evidence that the incident had never happened.  I agree that the best thing the trial judge could have done in the circumstances was to say nothing about the rule in Browne v Dunn or the failure to comply with it.
12. [12]
    DAVIS J:  On 1 April 2022 the appellant was convicted after a trial in the District Court of one count that he indecently dealt with a child under 16 years of age,^[3] with circumstances of aggravation that the child was under 12^[4] and was under his care.^[5]  It was also alleged that the offence was a domestic violence offence.^[6]
13. [13]
    The appellant appealed that conviction and sought to adduce fresh evidence on his appeal.^[7]  The Crown also sought to adduce fresh evidence.
14. [14]
    At the conclusion of the hearing of the appeal the following orders were made with reasons to be published at a later time:

1. The affidavits of [the child’s mother] and Susan Therese Gillies^[8] be admitted into evidence on the appeal.

2. The appeal is allowed.

3. The conviction is set aside.

4. A verdict of acquittal is entered.

15. [15]
    I joined in those orders and these are my reasons for so doing.

Background

16. [16]
    The appellant was in a domestic relationship with the child’s mother.
17. [17]
    The child allegedly complained to his father that the appellant sexually assaulted him.  He told his father that when he left the shower, the appellant fondled his penis.  He told his father that there was only one incident.
18. [18]
    On 24 July 2020, the child was interviewed by police.  He told police that he showered and when exiting the shower the appellant handled his penis and threatened to kill him if he told anyone what had happened (the shower incident).  On what seems from the child’s account to police to be a separate occasion, the child was about to exit the laundry door when the appellant took him into a bedroom and touched his penis.  Again, the appellant threatened to kill the child if he complained (the laundry door incident).
19. [19]
    At the pretrial recording of his evidence, the child said that the only assault occurred when he was coming out of the shower.  The appellant grabbed the child’s arm and took him into a bedroom where the assault occurred.
20. [20]
    At trial, the Crown relied upon the shower incident to support the one count on the indictment.  The Crown case was that the laundry incident was not a separate incident but was related to the shower incident.
21. [21]
    Preliminary complaint evidence was led through the child’s father in terms explained earlier.^[9]
22. [22]
    The appellant gave evidence denying any wrongdoing.
23. [23]
    After the appellant was convicted, the child spoke to his mother.  That conversation occurred on 6 April 2022, five days after the verdict.  In her affidavit which was admitted as fresh evidence on the appeal, the child’s mother said:

“38. I noticed that he^[10] was not looking very happy and I asked him if he was okay.

39. He initially just shrugged indicting that he didn’t rea1ly want to talk and he was being ambivalent.

40. I then said to him ‘come on buddy, you can talk to Mum, what’s going on?’. At this time he turned and looked at me and said ‘Mum, [the appellant] never hurt me’. I then said to him ‘are you sure that’s the complete truth?’ he then said ‘yes Mum, [the appellant] never did anything to me’. After this I then said to him ‘thanks for being honest and talking to me but I can’t talk to you about it so I need you to talk to Sonia’ (Sonia is the counsellor that [the child] attends upon) on this day he was to see his counsellor about an hour or so after we had the conversation which I have referred to. We did not speak any further about what had been mentioned in relation to [the appellant].”

She said that after the child had attended the counselling session:

“44. She^[11] also informed me that he had told her something, but she wasn’t sure how to address it and would have to speak to her supervisor. After the counselling session, [the child] and I then drove home and when we got into the car, [the child] said to me ‘Mum, I told her [the appellant] didn’t hurt me’. I responded by saying ‘okay buddy’.”

24. [24]
    On 10 February 2023, the child was interviewed by police.  In that conversation, he said that the appellant had not sexually touched him but that his father had told him to tell police that he had.  A recording of the interview and a transcript were exhibited to the affidavit of Susan Therese Gillies which was admitted into evidence on the appeal.
25. [25]
    When asked by police about his conversation with his mother some months previously:

“SCON PRYCE-DAVIES: Not exactly? Did you ever have any conversations with Mum about the same thing, that you were talkin’ to the counsellor about?

THE CHILD: I think maybe like once.

SCON PRYCE-DAVIES: Oh yeah, what, what did you s-, talk to Mum about?

THE CHILD: She was like asking me if [the appellant] actually did that.

SCON PRYCE-DAVIES: [the appellant] actually did what?

THE CHILD: Um, touch me.

SCON PRYCE-DAVIES: Touched you? What do you mean when you say, [the appellant] touched me? Are we talking about like the, on the, your private parts? Is that--

THE CHILD: Mm.

SCON PRYCE-DAVIES: What you’re talking about? Okay. Um, so she asked whether or not [the appellant] actually touched you.

THE CHILD: Mm.

SCON PRYCE-DAVIES: So tell me about that conversation. Do you remember what Mum said?

THE CHILD: Mainly only her saying, did [the appellant] actually do it?

SCON PRYCE-DAVIES: Okay, and what did you say to her? Remember how I said at the start, we just wanna know what the truth is? No one’s gonna get in trouble if we know the truth, yeah? I just, we just wanna know the truth. And I know it might be hard to talk about the truth, but I just wanna know exactly that conversation, what you and Mum were talking about.

THE CHILD: She like asked, [if the appellant] did it? And then, I said, I think, that my dad told me to do that, to say that in court and stuff.

SCON PRYCE-DAVIES: Oh, so come again. So you’ve basically said, she’s asked you, whether or not [the appellant] had touched you, and did you just say then that your da-, your dad, n-, so [the appellant’s] not your dad?

THE CHILD: No.

SCON PRYCE-DAVIES: Your dad has told you to say that [the appellant] did?

THE CHILD: Because my dad like hated [the appellant].”

26. [26]
    The appellant appealed, seeking an acquittal on the following grounds:

a) The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence and that an application to adduce new evidence which has come to light will be made to the Court.

b) The learned trial judge erred in the application of the rule in Browne v Dunn.

The first ground (unreasonable verdict)

27. [27]
    This ground alleges that the verdict of the jury is unreasonable but then goes on to assert that fresh evidence ought to be admitted.  Where an unreasonable verdict is alleged, the court must assess whether on the evidence at trial it was reasonably open to the jury to convict.^[12]  Further evidence admitted on appeal is not relevant to that ground but may support a ground alleging a miscarriage of justice.^[13]
28. [28]
    It was common ground that the fresh evidence ought to be admitted and the conviction set aside.  The evidence of the child recanting his trial evidence and stating that his father procured him to make the allegation against the appellant casts doubt not only the child’s trial evidence but also the preliminary complaint evidence given by his father.  The fresh evidence proves a miscarriage of justice and the conviction must fall.  It does not follow that on the evidence at trial it was not open to the jury to convict the appellant.
29. [29]
    Where a conviction is set aside as unreasonable, an acquittal is usually ordered.  Often, the receipt of fresh evidence showing that the first trial has miscarried, results in an order for a new trial.  Here, the Court concluded that an acquittal was justified, so there is no need to consider whether a conviction was open to the jury on the evidence led at the trial.

The second ground (misdirection)

30. [30]
    When the child gave his evidence (which was recorded),^[14] he was cross-examined.  That cross-examination was very short.  Counsel challenged some of the child’s evidence but did not squarely put to the child that the alleged offending did not occur.
31. [31]
    After the Crown case had closed and in the absence of the jury, this exchange occurred:

“HIS HONOUR: [defence counsel], I assume your case is that the event which is relied upon as the basis of the charge didn’t occur. Is that - - -

DEFENCE COUNSEL: That’s it in - - -

HIS HONOUR: That’s the point.

DEFENCE COUNSEL: - - - a nutshell, your Honour. …

HIS HONOUR: All right. All right. Well, I understand. [Defence counsel], you didn’t, in the course of the pre-recording of [the child’s] evidence, put your instructions, namely that the incident didn’t actually happen. You’re required to do that, aren’t you?

DEFENCE COUNSEL: Yes, your Honour. It was a situation where it was an oversight on my behalf when we were pre-recording the - the cross-examination.

HIS HONOUR: Well, I appreciate your frankness in explaining that to me. The purpose of being required to do that is as a matter of fairness to the witness, to give the witness an opportunity to comment on your position or your instructions or your case, and also to - out of fairness for the prosecution so that the jury can hear the witness’s response. If it were an adult witness and it happened live, it’d be easily resolved because we could just get the witness back or we’ll get them on the phone or do something like that.

Unfortunately, with a child, we can’t do that because the Evidence Act says it has to be pre-recorded. Have you considered that or has someone - I know that you haven’t had the carriage of the case all along, [Crown prosecutor], but has anybody considered this issue?

CROWN PROSECUTOR: I must admit, your Honour, I hadn’t turned my mind to that.

HIS HONOUR: Well, I mean, it can be the case that the prosecution don’t require that that be put, and I’ve seen plenty of cases, I’ve been involved in them myself, where with a young child in particular, the prosecution haven’t required the formal putting of instructions and everyone understands that that’s the defendant’s case. But it’s - you’ll have to voice a position about that failure in due course. In any event, I’ll leave that with you over the lunch break, perhaps.

CROWN PROSECUTOR: Thank you, your Honour. Yes. I’ll turn my mind to it over the break.”

32. [32]
    After lunch, the prosecutor raised the issue and this was said:

“CROWN PROSECUTOR: Thank you, your Honour. I’ve considered the issue your Honour raised before the lunch break in respect of it not being specifically put to the complainant child that it never happened. I would like to press on with the matter, and in my submission, we can do that and deal with this issue simply by a brief direction from your Honour to the jury that that wasn’t specifically put to the witness, so therefore, they haven’t been asked to comment on that, and really just leave it - leave it there.

But it doesn’t take the Crown by surprise that that is the case that’s being run, and I don’t think it’s appropriate or necessary to adjourn the - or discontinue the trial at this point and arrange for the child to be pre-recorded, et cetera.

HIS HONOUR: All right. Well, we would assume that the answer to the question was going to be a rejection of the proposition, so we should just proceed on that basis.

CROWN PROSECUTOR: Yes, your Honour. Thank you.

HIS HONOUR: All right. So are you happy with that, [defence counsel]?

DEFENCE COUNSEL: Yes. Thank you, your Honour.”

33. [33]
    The appellant gave evidence denying the allegations against him.  After his evidence was completed and defence counsel closed his case, the jury was excluded and his Honour received submissions on various issues relevant to the summing-up.  His Honour confirmed his intention to direct the jury to assume that had it been put to the child that the incident did not occur “… he would have maintained his version”.
34. [34]
    In the summing-up, consistently with that ruling, his Honour told the jury:

“Remember, it is not for the defence to prove that [the child] is untruthful or a liar or is unreliable. It is for the Prosecution to prove the elements of the offence beyond reasonable doubt. If you have a reasonable doubt about the accuracy or reliability of the material parts of [the child’s] evidence, then you are obliged to find [the appellant] not guilty. Now I should just mention that there is a rule of practice that requires counsel to put their instructions to the opposing party’s witnesses where it is intended to contradict that witness’ account by calling contrary evidence. In this case, [defence counsel] did not formally suggest to [the child] when he cross-examined him that his account was untrue. [Defence counsel] acknowledges that that was his oversight. The consequence of that is that you have not had the benefit of hearing [the child] respond himself to the suggestion that his account was untrue. However, we proceed on the basis that his answer to that question would have been that he did not agree with the suggestion that his evidence was untrue.”

35. [35]
    The rule in Browne v Dunn^[15] is designed to ensure fairness to a witness by giving the witness an opportunity to comment on evidence which may be given later in the trial and which is expected to contradict the evidence given by the witness.^[16]
36. [36]
    A failure of a party to observe the rule may require remedial action.  In some cases, it is appropriate to recall the witness for further cross-examination so that the barristers’ instructions can be put.^[17]  In extreme cases,^[18] the fact that a witness later gives evidence which was not put to an earlier witness may give rise to a suggestion of recent invention.  That will be a rare case^[19] and such a tactic is “fraught with peril”.^[20]
37. [37]
    Sometimes what is required is a direction to the jury in terms as suggested in R v Foley:^[21]

“… the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it.”^[22]

38. [38]
    Sometimes there is no need for any direction or any other action.
39. [39]
    The learned trial judge looked for some practical way to overcome the perceived problem caused by counsel’s failure to put the denial to the child.  It may have been reasonable for his Honour to think that the child would have affirmed the allegations if the denial was put to him.  However, it was a misdirection to instruct the jury to assume that evidence which had not been given would have been given if the child was asked to comment on the appellant’s denial.  The jury was obliged to only consider evidence admitted in the trial, not to speculate on what evidence may have been given in response to questions not asked.
40. [40]
    The trial judge, in exercise of discretion, may have given the type of direction described in Foley.^[23]  His Honour’s best course may have been to take no action at all.  There could be no doubt in the jurors’ minds that the appellant denied sexually assaulting the child.  He gave sworn evidence before them to that effect.  The Crown did not submit that the unfairness to the child was such that he should be recalled to have the denial put to him.  The Crown accepted that the failure to put the denial was just an oversight by defence counsel.  Recent invention was not suggested.
41. [41]
    Had the judge simply ignored counsel’s oversight and made no comment about it in the summing-up, no harm would have been done.  The clear contest was between the evidence of the child and the evidence of the appellant.  The real issue in the trial was whether the jury was satisfied beyond reasonable doubt of the truth of the child’s allegations.
42. [42]
    The misdirection was an error of law and therefore a miscarriage of justice occurred.^[24]  The Crown did not seek to rely upon the proviso.  The second ground was made out and also justified allowing the appeal.

There should be an acquittal

43. [43]
    Upon a successful appeal, the court may set aside the conviction and acquit the appellant, or order a new trial, or order no new trial.^[25]  Here, the appellant sought an acquittal and the Crown sought an order for a new trial.
44. [44]
    The appellant submitted that he should have the benefit of an acquittal because the child withdrew all allegations and further prosecution of him would be pointless.  The Crown submitted that further investigations were ongoing to determine what transpired between the child and his counsellor.  That, the Crown submitted, may clarify the circumstances under which the child retracted the allegations against the appellant.  The Crown points to alleged inconsistencies between the child’s mother’s version and what the child told police.  The child’s mother said that she saw that the child was troubled and asked what was wrong.  That prompted the child to retract the allegation.  The child told police that his mother prompted the conversation by asking him whether the appellant committed the offence.
45. [45]
    The Crown submitted that resolution of that conflict was necessary and relied upon R v DBI^[26] where it was observed:

“[28] This court must consider whether the fresh evidence given by the complainant is relevant, credible and cogent. The particular difficulty faced in this case is that it is recantation evidence. Such evidence after a trial should be approached with caution. As the High Court observed in Davies v The King,^[27] allowing an admission that a witness has committed perjury as the sole ground for setting aside the result of a trial in which that witness has given evidence would tend to undermine the administration of criminal justice.”

46. [46]
    Here it was common ground that evidence of the retraction of the child’s evidence should be admitted on the appeal and that the evidence was such as to result in the setting aside of the conviction.
47. [47]
    The child retracted the allegations during a conversation with his mother on 6 April 2022.  His position was the same when he was interviewed 10 months later by police.  The child’s present version not only impugns the only evidence of commission of the alleged offence, but also undermines the evidence of the only other Crown witness, the child’s father.
48. [48]
    Any evidence of the counsellor could only possibly call into question the credibility of the child’s retraction.  That evidence is unlikely to be admissible on any retrial.
49. [49]
    No credible case can now be mounted by the Crown against the appellant.  It was appropriate to acquit him.