R v BEC

This case was a successful appeal against conviction. Acting Justice Livesey (with whom Callaghan J agreed; but with Mullins P dissenting) held that a miscarriage of justice had occurred. This was on two bases: first, the trial judge failed to direct the jury in relation to the appellant remaining silent and walking away after he was said to have been “confronted” by the complainant’s mother with what she believed to be evidence of sexual abuse; and second, the trial judge failed withhold from the jury room a written statement admitted under s 93A Evidence Act 1977 and did not give a specific warning to guard against placing disproportionate weight upon it. The appeal was allowed, the convictions were set aside, and a new trial was ordered.

Mullins P and Livesey AJA and Callaghan J

1 August 2023

Background

BEC (the “appellant”) was found guilty of a number of sexual offences in relation to a child (the “complainant”). [23]. The sexual offences for which the appellant was convicted relevantly included: maintaining a sexual relationship with a child (Count 1); and three counts of rape (Counts 3, 7 and 10). [23]. The prosecution case in relation to Counts 3, 7 and 10 was that the appellant vaginally raped the complainant on two evenings spent on his boat on or about 13 and 14 September 2020. [22]. There was no dispute that the complainant was alone with the appellant on his boat on or about these days, however, the appellant denied raping, or ejaculating on or near, the complainant. [34], cf. [49]. The appellant advanced two grounds of appeal against conviction:

• the trial judge erred in failing to give directions about the appellant’s reaction (i.e. silence and walking away) when the complainant’s mother was said to have “confronted” him with evidence of what she believed was sexual abuse (the “implied admission”); and
• the trial judge erred in failing to direct the jury not to place disproportionate weight upon a statement admitted under s 93A Evidence Act 1977 which had not been withheld from the jury room (the “impugned statement”). [25].

Whether the trial judge erred in failing to direct the jury about the implied admission

The complainant’s mother had given evidence that she had picked up clothes that the complainant had brought back when she had returned from her time on the boat with the appellant. [45]. She observed that some of the underwear was covered in “white stuff” which she described as having the appearance of male ejaculate.  [45]. She became angry and said to the appellant: “If I didn’t know any better, I would swear [the complainant] was getting abused”. [45]. Without any objection from defence counsel, the complainant’s mother then said that the appellant “just looked at [her] oddly and walked out of the house”. [46]. Defence counsel did not challenge this evidence in cross-examination. [47]. 

The appellant elected to give evidence and gave a different account of what occurred despite defence counsel not having challenged the recollection of the complaint’s mother about what had occurred while she was under cross-examination. [47]–[50]. The appellant recalled that the complainant’s mother approached him and said “[l]ook at this festy underwear” which she showed him and said “have a look at this”. [50]. The appellant recalled the complainant’s mother saying: “if I didn’t know better, [the complainant was] having sex”. [50]. The trial judge did not direct the jury about the potential use of this evidence as an implied admission upon which a consciousness of guilt might be inferred. [59].

The prosecutor did not rely on the evidence as an implied admission and defence avoided this evidence altogether in their closing address. [82]. Be that as it may, where there is a failure to respond to an allegation put to an accused by a prosecution witness who is not a person in authority, a jury may attach great significance to their reaction. [87]. This was evident in the circumstances of this case. [96]. If the jury accepted the evidence of the complainant’s mother about what was said to the appellant and his reaction, there was a risk that the jury may have expected the appellant to have made an immediate denial and impermissibly jumped to a conclusion of guilt without turning their minds to:

• whether the appellant’s recollection remained a reasonable possibility or whether they had a doubt about what precisely had been said or seen;
• whether the appellant heard and understood what had been said and in the circumstances it was reasonable for him to be expected to deny any inculpatory implication conveyed; and
• whether there were any innocent explanations for the appellant’s reaction (i.e. remaining silent and walking away). [96], [99].

Acting Justice Livesey considered the authorities in relation to the use of silence and other conduct as an implied admission and held that a direction was necessary: see [65]–[81]. Acting Justice Livesey also suggested the form of direction that would have been appropriate: see [99].  Justice Callaghan agreed that a direction was necessary observing that the jury’s attention would not have been isolated to the evidence about the underwear itself. [158]. It could not have been divorced from the evidence about the appellant’s reaction. [158]. Any consideration of the underwear would have inevitably led to reference to the latter. [158]. The President disagreed. [15]–[22]. The statement of the complainant’s mother was equivocal; and it was not relied on as an implied admission: see [16]–[17], [20].

Whether the trial judge failed to direct the jury about the use of the impugned statement

An email had been sent to police by the complainant with the assistance of her psychologist (the “impugned statement”). [39]. The impugned statement had been prepared by the psychologist from what had been related to them by the complainant during a consultation. [39]. Justice Livesey observed that the impugned statement, which was received into evidence under s 93A Evidence Act 1977, was a “concise statement” of the complainant’s allegations about both: the appellant’s habitual sexual offending over a number of years which was the subject of Count 1; and the two evenings the complainant spent on his boat which were the subject of Counts 3, 7 and 10. [40]. The impugned statement was not withheld from the jury room and no specific directions were sought or given not to give it disproportionate weight. [26], [61]–[62], [143].

Acting Justice Livesey reviewed the line of authority that has followed R v H [1998] QCA 348; [1999] 2 Qd R 283 (“R v H”): see [124]–[134]. Whilst his Honour acknowledged there are points of distinction between a videotaped statement and a written statement, both forms of evidence give rise to similar risks if allowed to go into the jury room during deliberations. [141]–[142]. It was difficult to see why a written statement should be treated any differently to a videotaped statement in a case where they both record the account of the complainant. [146]. The President disagreed observing, inter alia, that the focus of R v H were the risks associated with videotaped statements as distinct from written statements. [12]. There was no application to withhold the impugned statement from the jury room, and in her Honour’s view, there were good forensic reasons for doing so. [4]–[14].

Whilst a trial judge retains a discretion whether or not to withhold from the jury room a statement admitted under s 93A Evidence Act 1977, written or otherwise, it was preferable in the circumstances of this case for the impugned statement to have been withheld. [146]–[147]. The impugned statement having gone into the jury room meant there was a risk that the jury gave it disproportionate weight and this risk was compounded by the absence of any specific directions from the trial judge of the kind contemplated in R v H. [150]. Justice Callaghan agreed observing that in the circumstances of this case the jury may have been attracted to the clarity of the impugned statement and dwelt upon it to the exclusion of other evidence that was not in the jury room. [159]–[161].

Disposition

The appeal was allowed, the convictions were set aside, and a new trial was ordered. [153] (per Livesey AJA); [162] (per Callaghan J agreeing in the result); cf. [14], [22] (per Mullins P dissenting in the result).

D Kerr