R v CDI[2024] QCA 232

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Henry J.
2. [2]
   BROWN JA:  I agree with the reasons of Henry J and the order proposed by his Honour.
3. [3]
   HENRY J:  The appellant stood trial for an array of sex offences allegedly committed against his stepdaughter over many years.  He was convicted of one count of maintaining a sexual relationship with a child.  He was also convicted of 13 individual sex offences committed while maintaining that relationship, 12 of them in the complainant’s bedroom.
4. [4]
   He appeals his conviction on the sole ground the learned trial judge ‘erred and misdirected the jury in relation to what was termed preliminary complaint evidence and how that evidence could be used’.
5. [5]
   That ground relates to the evidence of the complainant’s school friend, CN.  That evidence was contained within a police interview of CN, which was consensually edited before it was received into evidence.  The appellant now complains a piece which was not edited out, or sought to be excluded by his counsel below, should not have been led, because it was not a disclosure of sex offending.  That piece of evidence was the complainant’s disclosure to CN that the appellant used to enter the complainant’s bedroom forcefully, through her closed bedroom door.
6. [6]
   The ground raises these issues:

• What range of evidentiary content comes within a ‘preliminary complaint’?
• Was the evidence about forceful entry of the bedroom legitimately before the jury as part of the evidence of ‘how’ the preliminary complaint was made?
• Did the learned trial judge err in his direction to the jury regarding the preliminary complaint evidence?

7. [7]
   The appeal should be dismissed.  What the complainant said of the appellant’s forced bedroom entries, formed part of the evidence of how the preliminary complaint was made.  There was no error in its receipt as evidence and no consequential error in the ensuing direction to the jury.

What range of evidentiary content comes within a ‘preliminary complaint’?

8. [8]
   It was once the law that the evidence of a complaint to others of the alleged commission of a sex offence by its alleged victim was only admissible if the complaint was made soon after the alleged offence.  Such evidence was known as evidence of ‘fresh’ or ‘recent’ complaint.  The requirement of recency was changed in 2003 when s 4A was included in the Criminal Law (Sexual Offences) Act 1978,^[1] making any such complaints admissible if made preliminary to the complainant’s first formal statement to police.
9. [9]
   It is well settled the purpose of such evidence is not as evidence of the truth of its content but as evidence of consistency or inconsistency with the complainant’s evidence, to be considered in assessing the credibility of the complainant’s evidence.^[2]  The present issue relates to the breadth of the admissible content of a ‘preliminary complaint’ under s 4A.
10. [10]
    Section 4A (recently replaced by s 94A Evidence Act 1977 (Qld)) relevantly provided:

“4A Evidence of complaint generally admissible

1. This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.

2. Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

3. Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.

…

6. In this section––

complaint includes a disclosure.

preliminary complaint means any complaint other than––

1. the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

2. a complaint made after the complaint mentioned in paragraph (a).”

11. [11]
    The effect of s 4A, is that in a trial in relation to a sexual offence, evidence of ‘how and when’ any preliminary complaint, which ‘includes a disclosure’, was made about the alleged commission of the offence, is admissible if the complaint preceded the complainant’s first formal witness statement to police. 
12. [12]
    It warrants emphasis that s 4A(6) defines a ‘complaint’ not as a disclosure but as including a disclosure.  In other words, a preliminary complaint about the alleged commission of a sexual offence is not confined to the bare words disclosing the alleged commission of the offence.^[3]  Further, s 4A(2) contemplates the admission into evidence ‘of how and when any preliminary complaint was made’.  The ‘how’ part of how a preliminary complaint was made logically includes not just the circumstances under which the complaint was made but the content of the complaint.
13. [13]
    None of this is surprising.  As long ago as 1896 in R v Lillyman,^[4] it was observed of a fresh complaint of sexual offending that ‘the whole statement of a woman containing her alleged complaint should, so far as it relates to the charge against the accused, be submitted to the jury’.  More recently, in respect of s 4A, McMurdo P observed in R v AW,^[5] the legislature ‘plainly intended that the jury have the full context of any preliminary complaint or disclosure so as to most accurately assess the credibility (or lack of credibility) of the complainant and the complaint’.
14. [14]
    The admissible content of how a preliminary complaint was made may go beyond words directly disclosing the alleged offending.  Its subject matter may be ‘about’ the alleged commission of the offence by reason of a less direct connection with it.  The connection may derive from contextual content, which may be probative of the meaning of what was disclosed.  It may derive from factual content, about some aspect of the circumstances of the alleged commission of the offence, which may be probative of consistency or inconsistency in what was disclosed when compared with the complainant’s evidence.
15. [15]
    The boundary between whether such contextual or factual content does or does not relate to the commission of the alleged offending by the defendant will not always be clear.  As Fryberg J observed in R v NM,^[6] whether there is a connection of subject matter, demonstrated by commonality of time, place, event or conduct, will depend upon the circumstances of each case.
16. [16]
    In that assessment, as with many issues in a criminal trial, the trial judge will be informed by the position the parties take regarding the bounds of admissibility of the contextual or factual content.
17. [17]
    It is to also be borne in mind, particularly where such content falls towards the outer bounds of admissibility, and its prejudicial effect may outweigh its probative value, that the protection of a charged citizen is assured by s 4A(3).  That provision expressly preserves the trial judge’s power, per s 130 Evidence Act, to exclude evidence if satisfied it would be unfair to the defendant to admit it.  Again though, whether that sub-section ought be deployed will depend upon the position taken by the parties at trial.
18. [18]
    The evidence now complained of by the appellant is said to have been both inadmissible and prejudicial.  It does not bode well for that complaint that, at trial, the appellant did not argue the evidence was inadmissible and, was evidently so unconcerned about its prejudicial effect, no application for exclusion per s 4A(3) was made.

Was the evidence about forceful entry of the bedroom legitimately before the jury as part of the evidence of ‘how’ the preliminary complaint was made?

19. [19]
    Consideration of whether the content now complained of was admissible as part of CN’s evidence of preliminary complaint requires some appreciation of the facts of the case.
20. [20]
    The complainant’s mother entered into a relationship with the appellant when the complainant and the appellant’s own two daughters were still young children.  They lived at several homes together in the ensuing years before the end of their relationship, in the wake of the alleged offending against the complainant becoming known.
21. [21]
    The complainant testified the appellant used to touch her breasts, backside and vagina and rape her by penile penetration of her mouth, vagina and anus and digital penetration of her vagina.  She recalled some of the occasions on which such acts occurred sufficiently for them to attract specific counts on the indictment, additionally to the count of maintaining a sexual relationship with a child.  Most of those counts related to offending against the complainant in her bedroom.  Other alleged locations were the garage, lounge and bathroom of their home.
22. [22]
    The jury acquitted the appellant of some individual counts.  Of the 13 individual sex offences the appellant was convicted of, 12 were allegedly committed in the complainant’s bedroom.
23. [23]
    The evidence of sex offending in the complainant’s bedroom was corroborated in a general sense by the detection of staining, which tested positive in a presumptive test for semen, on locations in the bedroom at or near where the complainant described the appellant ejaculating after penetrating her.  The stains matched the appellant’s DNA to a high degree of probability.  The appellant attempted to explain away that evidence by testifying he sometimes had sex with the complainant’s mother in the complainant’s bedroom.  This was denied by the complainant’s mother.  The prosecution case, that the appellant had maintained a sexual relationship with his stepdaughter during which he had sometimes ejaculated in her bedroom, was obviously strong in light of the DNA evidence.
24. [24]
    Some evidence of the appellant’s domestic violence in the family home was adduced at trial, apparently to explain the complainant’s acquiescence and hesitation to complain.  The appellant denied the occurrence of such violence.  The complainant’s mother testified the appellant was volatile, would call her names and hit her if she did not give the right emotional response or questioned things in an argument.  She testified her relationship with the appellant worsened, both verbally and with physical violence, including an occasion when the appellant strangled her and she grabbed a pair of scissors to defend herself.  She said there were occasions when the children would see bruises on her arms, legs and face.  She also testified the complainant saw a fight between the appellant and her, during which he kicked her in the face, causing her face to split open under her eye and leaving a scar.  The complainant said the appellant would hit and abuse her mother and that if her mother said anything there would be a big argument and she would get hurt or kicked out on the street.  She said the appellant’s usual reaction when he would get angry was to hit people.
25. [25]
    No issue arises in this appeal about the admissibility of that evidence.
26. [26]
    The complainant’s allegations, or at least some of them, first came to light after an anonymous caller, claiming to be a parent of a student in the complainant’s class at school, rang the school, saying the complainant had made comments in class about being sexually abused by the appellant.  This prompted a police investigation in which it emerged the complainant had made disclosures about the appellant offending against her sexually to some of her fellow students.  Evidence was adduced at trial from three of those students about what the complainant had told them, on the basis it was evidence of ‘preliminary complaint’ per s 4A.
27. [27]
    Of those students, the student to whom the complainant disclosed the most was CN.  CN’s account of her conversations with the complainant was contained in a recorded police interview with CN, exhibited at trial.  It will be recalled the exhibit had been edited to remove content which the parties had agreed should not be included.
28. [28]
    That it had been consensually edited highlights that trial counsel considered and made choices about the parts of CN’s interview which should be left out at trial.  The appellant’s trial counsel evidently chose to leave in a part which his appeal counsel now argues should have been edited out.
29. [29]
    In the exhibited version of CN’s interview with police, CN described a series of conversations with the complainant at school in which the complainant progressively disclosed what the appellant had been doing to her.  As the interview continued, CN gradually recalled additional factual detail.  It was not always clear in which of her conversations with the complainant the detail had been disclosed.
30. [30]
    Early in the interview, CN was asked what she had come to talk to police about and responded it was  ‘about my friend [the complainant], how she was raped by her like, stepdad’.  She then described a conversation when the complainant said the appellant would ‘come in at night, at maybe twelve’ and would put hands ‘in her like, touch her’.  The police asked if there was anything else she knew about what had happened and she responded that the complainant had said the appellant used to ‘kick down the door’ or ‘break into her room’, ‘if she had the door shut’, ‘like an invasion of privacy’.
31. [31]
    It is that reference to the appellant’s forceful method of entering the complainant’s bedroom which the appeal ground is concerned with.
32. [32]
    There then followed more questions and answers in which CN elaborated further upon what the complainant had disclosed to her.  CN said the complainant disclosed  the appellant would touch her in a lot of places ‘like, her chest, her pants’.  She said the complainant eventually ‘snapped’ in speaking of what occurred and ‘kept saying that he raped her over and over and over and over again’.
33. [33]
    She went on to explain she told the complainant she had ‘to tell somebody’, but the complainant did not want to because she was scared her mother would get hurt.
34. [34]
    The police then asked CN what the complainant had said about the appellant coming in at night.  She responded:

‘She would say that he would just come in at night while everyone’s asleep.’

35. [35]
    In response to further questioning on what the complainant had told her about the appellant putting his hands in her, she responded the complainant had described it getting worse and eventually that he started performing anal sex on her.
36. [36]
    Later in the interview, the police returned to the topic of the appellant’s forceful entries of the bedroom in the following exchange:

‘POLICE:  [C]an you tell me more about um, [the appellant] breaking down [the complainant’s] door for her room?

CN:  He would, so she would shut the door for like, privacy like to get changed. … And he would like bang on the door, or like open the door and, or just like find a way to unlock it, and he’d like break down the door, and she, she just barely felt like she could ever be like, have privacy.’

37. [37]
    Ensuing questioning moved to when the complainant had first mentioned anal sex occurring.  The topic of the appellant’s forceful entry into the complainant’s bedroom  was not returned to in the interview.  Nor was it the subject of questioning by either counsel in evidence in chief or cross-examination during the pre-recording of CN’s evidence for the trial.  The result is that CN was never asked whether the complainant had specifically connected the appellant’s forceful method of entering her bedroom to the occasions when he had offended against her sexually.
38. [38]
    It will be recalled CN explained at the start of the interview that she was there to talk about how the complainant was raped by the appellant.  That is minor support for an inference of connection.  However, more material support derives from the fact the complainant’s disclosures to CN of the appellant offending against her sexually were of offending committed against her in her bedroom.
39. [39]
    As already explained, the content of a preliminary complaint will not always be confined to bare words disclosing the alleged commission of the offences.  It may include factual content about some aspect of the circumstances of the alleged commission of the offences, which may be probative of consistency or inconsistency in what was disclosed when compared with the complainant’s evidence.  One such aspect here is the appellant’s pattern of forceful entry into the complainant’s bedroom, because a circumstance of the alleged commission of the offences was the location they occurred in, namely the complainant’s bedroom.
40. [40]
    It may be accepted that connection falls towards the outer bounds of factual content relating to the alleged commission of the charged offending.  However, it falls within those bounds.  That the complainant told CN the appellant used to enter her bedroom forcefully was part of ‘how’ the complaint of the alleged commission of the offences in her bedroom was made to CN.
41. [41]
    For those reasons the complainant’s description to CN of the appellant’s pattern of forceful bedroom entry was admissible in evidence as part of CN’s evidence of preliminary complaint per s 4A.
42. [42]
    Some additional observations may assist in exposing how distant the reality of the equation at trial below was from the construct now urged on appeal.
43. [43]
    These reasons have acknowledged CN’s account of what the complainant said of the appellant’s pattern of forced entry was within, but towards the outer bounds of, connection with the circumstances of the offending.  A contrary argument might have been run below.  In summary that argument would have been that the complainant may have used her conversations with CN to vent about other aspects of the appellant’s behaviour she did not like, such as forcing his way into her room on occasions possibly unrelated to the occasions when he would enter her room to touch or rape her.  However, there had been no exploration of the possible factual foundation for that argument in questioning of CN in the pre-recording of her evidence at trial.  Nor did the argument emerge so obviously from CN’s interview with police as to suggest the learned presiding judge should have thought of it independently of any argument raised by one of the parties.  Put differently there were not such obvious problems with the evidence that the learned trial judge erred in not intervening of his own volition.
44. [44]
    Perhaps the above argument may have shaped as better to run in support of discretionary exclusion on the basis the evidence was potentially ambiguous in its connection to the alleged offending and thus less probative than it was prejudicial.  But such an argument was not run.  Why would the defence have wanted to run it?  The complainant did not assert in her evidence that the appellant used to enter her bedroom forcefully.  To the contrary, she described him entering quietly, sometimes so quietly his entry would not wake her up and she would only wake up on feeling his touch at her bed.  Why seek the exclusion of a piece of evidence which was probative of inconsistency in what was disclosed when compared with the complainant’s evidence? 
45. [45]
    The evidence about the appellant’s alleged forced entries was, in an isolated sense, of unfavourable conduct, but this was a trial where the appellant was alleged to have engaged in much worse conduct.  The evidence was scarcely likely to have had a material prejudicial effect.  On the other hand, it was likely to provide helpful oxygen to the defence argument that the complainant had given historically inconsistent descriptions of the appellant’s alleged misconduct.  The preponderance of tactical advantage to the defence favoured the evidence remaining in the recording of CN’s interview played to the jury.
46. [46]
    These realities well demonstrate the implausibility of the contention now advanced that the evidence should not have been adduced.

Did the learned trial judge err in his direction to the jury regarding the preliminary complaint evidence?

47. [47]
    An essential premise of the complaint on appeal of a misdirection about the preliminary complaint evidence is that CN’s evidence of what the complainant said of the appellant’s pattern of forced entry was inadmissible under s 4A.  The conclusion above that the evidence was admissible under s 4A is fatal to that premise.
48. [48]
    It is, nonetheless, helpful to briefly canvass what occurred during addresses and directions, for it reinforces the conclusion there was no misdirection.
49. [49]
    Prior to addresses when prospective jury directions were being discussed, submissions were made in connection with the preliminary complaint evidence, though not in relation to the point raised in the present appeal.  That the parties turned their minds to the topic of preliminary complaint related directions, but the point now raised was not mentioned, shows it was not perceived as concerning.
50. [50]
    That perception is likewise exposed by the fact that when counsel addressed in connection with the preliminary complainant evidence, neither specifically alluded to what CN had been told about the appellant’s forced entries of the bedroom.
51. [51]
    A major theme of defence counsel’s address was the variable way in which the complainant’s account had evolved and changed over time, indicating its unreliability.  It was submitted the complainant had been unhappy at home and unhappy at school, and her friends had noticed but not taken much interest.  It was submitted the complainant then started to make allegations about her stepfather abusing her without going into significant detail, with the result that her friends were ‘somewhat more interested’ and pressed her for more detail.  It was submitted she was unable to give any because it was not true and that then she worked herself up emotionally and impulsively made more serious allegations with the result that her friends rallied around, she became the focus of concern, and for weeks they pressed her to come forward but she refused because, defence counsel submitted, it was not true.  While defence counsel did not allude in any detail to the content of the various preliminary complaint conversations, his submissions encouraged the jury to regard them as an accumulating process in which, because the complainant was getting the attention of her friends, she made progressively more serious allegations about what her stepfather had done.  Inconsistency between the preliminary complaint evidence and the evidence of the complainant therefore helped the defence theme that the variable way the complainant’s account had emerged showed her evidence was unreliable.
52. [52]
    In directing the jury about preliminary complaint evidence, the learned trial judge alluded to CN’s evidence, summarising some of the progressively disclosed content of what the complainant told CN.  That included a reference to CN having said the complainant told her the appellant would ‘kick down the door, break into her room’.  That was a singular, passing reference to the topic, again consistent with it having attracted no specific attention in the conduct of the trial.  His Honour also touched briefly on the other two preliminary complaint witnesses.
53. [53]
    His Honour directed the jury the evidence of the preliminary complaint witnesses was only relevant to their assessment of the credibility or reliability of the complainant’s evidence.  It was explained, in that assessment, they could have regard to whether the preliminary evidence was consistent or inconsistent with the complainant’s evidence of what happened and any such consistency or inconsistency could be considered as potentially enhancing or detracting from the credibility of the complainant’s evidence.  His Honour specifically directed the jury they could not use the evidence of what the complainant told the preliminary complainant witnesses as evidence of the truth of what she said.  He emphasised such evidence was not and could not be used as evidence of the alleged offending and reiterated it could only be used as evidence of consistency or inconsistency in weighing the credibility of the complainant’s evidence.
54. [54]
    Those were orthodox directions.  They involved no misdirection.  In relation to the specific piece of evidence now complained of by the appellant, they were unambiguously helpful to the defence case because that evidence was inconsistent with the evidence of the complainant.
55. [55]
    However, the appellant’s counsel emphasises that straight after the learned trial judge directed the jury about preliminary complaint, he next directed them about the domestic violence evidence.  In the latter direction his Honour told the jury the evidence of the complainant and her mother of the appellant’s alleged domestic violence could only be used for the limited purpose of weighing the likelihood of whether, as the complainant claimed, she would have submitted to the offences against her and not made a complaint about them.  His Honour directed the jury that if they accepted the evidence of the complainant and her mother of the appellant’s domestic violence, they could not use that evidence to reason he was therefore more likely to have committed the charged offences.
56. [56]
    The appellant submits CN’s evidence that the complainant told her of the appellant’s forceful entries into her bedroom described behaviour which is a form of domestic violence.  Accordingly, it was submitted, the alleged misdirection about preliminary complaint gave rise to a consequential risk, occasioning a miscarriage of justice, of the jury impermissibly using that evidence as enhancing the likelihood that the evidence of the appellant being domestically violent was true.
57. [57]
    But the alleged misdirection was part of the preliminary complaint direction about the evidence of CN of what the complainant told her.  It was not about the evidence of the complainant or her mother.  That immediately exposes how tenuous the assertion of consequential risk is.  It becomes even more tenuous when it is recalled the jury were instructed the evidence of what CN was told by the complainant could not be used as evidence of the truth of what the complainant told her.  A third blow to the tenuous complaint of consequential risk is that the jury were told they could only use that evidence to weigh the credibility of the complainant’s evidence by reference to its consistency or inconsistency with the complainant’s evidence.  CN’s evidence of what the complainant told her of the appellant’s forced entry into her bedroom was inconsistent with the evidence of the complainant, who described no such forceful entry and, to the contrary, alleged the appellant used to enter her room quietly, sometimes without waking her.  That inconsistency, on an application both of the judge’s directions and of commonsense, inevitably meant the evidence of what CN had been told of forceful entry tended to harm, not enhance, the credibility of the complainant’s evidence.
58. [58]
    There is no substance to the complaint of consequential risk, let alone that the risk occasioned a miscarriage of justice.  Further, no re-direction was sought in respect of it at trial.
59. [59]
    The absence of any expression of concern below by a party about an issue the party complains of on appeal is a consideration which may fortify the conclusion there was no error.^[7]  It does here.  The evidence at issue may have been towards the outer bounds of admissibility under s 4A but it was, on the face of it, within those bounds.  There was no argument advanced below contending otherwise.  Further, it appeared to be evidence of inconsistency and thus favourable to the defence.  Given it was not apparent on the face of it that the evidence was inadmissible or prejudicial, the absence of any argument that it was inadmissible or should be excluded on fairness grounds, and the absence of any request for a special direction or a redirection about it, all tell strongly against an inference that the learned trial judge erred in the orthodox way he dealt with the evidence.

Order

60. [60]
    There was no error or misdirection in relation to CN’s preliminary complaint evidence and how it could be used.
61. [61]
    The sole ground of appeal having failed, I would order:

Appeal dismissed.