KBT v The Queen

High Court of Australia|1997-12-09|Before: Brennan CJ, Kirby JJ, Gummow JJ

High Court of Australia Brennan CJ Toohey, Gaudron, Gummow and Kirby JJ KBT v The Queen [1997] HCA 54

Set aside the orders of the Court of Appeal so far as they relate to count 2 in the indictment and in lieu thereof order that:

(b) the conviction on count 2 in the indictment be quashed; and

The following written reasons for judgment were published: -

9 December 1997 Brennan CJ, Toohey, Gaudron and Gummow JJ.

The appellant, KBT, appealed to this Court from a decision of the Court of Appeal of the Supreme Court of Queensland. So far as is presently relevant, that Court dismissed his appeal against a conviction for maintaining a sexual relationship with a child under sixteen contrary to s 229B(1) of the Criminal Code Q (the Code) [1] . At the conclusion of the hearing of his appeal to this Court, the appeal was allowed and orders were made setting aside the orders of the Court of Appeal as they related to the offence under s 229B(1) of the Code (count 2 in the indictment), allowing his appeal to that Court in part, quashing his conviction for that offence and ordering a new trial. The following are our reasons for joining in those orders.

R v Thompson (1996) 90 A Crim R 416. The appellant also appealed unsuccessfully against his conviction on two other charges, namely, indecent dealing with a girl under the age of fourteen (then s 216, see now s 210(1)(a)) and indecent assault (s 337(1)), and unsuccessfully sought leave to appeal against the severity of his sentence. Those matters were not the subject of appeal to this Court.

Section 229B(1) of the Code creates an offence of maintaining a sexual relationship with a child. Prior to the amendment of s 229B in 1997 [2] , sub-s (1) was in these terms:

Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years. [3] The offence was elaborated by sub-s (1A) which provided: A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions. The offences defined in s 210(1)(e) and (f) relate, respectively, to the exposure of a child under sixteen to indecent material [4] and the taking of indecent photographs or films of a child under sixteen [5] . 1. See s 33 of the Criminal Law Amendment Act 1997 Q which took effect on 1 July 1997. 2. Sub-sections (1B) and (1C) provided for higher maximum penalties if, in the course of the relationship, the offender committed an offence of a sexual nature punishable, respectively, by at least five years and at least fourteen years imprisonment. 3. In the terms of s 210(1)(e), "without legitimate reason, wilfully expos[ing] a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter". 4. In the terms of s 210(1)(f), "without legitimate reason tak[ing] any indecent photograph or record[ing] any indecent visual image of a child under the age of 16 years".

The conviction in issue in this appeal was for maintaining an unlawful sexual relationship between 3 July 1989 and 30 January 1991 with M, a child who had been raised by the appellant and his wife as their daughter. M was aged fourteen in 1989 and turned sixteen in April 1991. So far as concerns the offence in question [6] , M gave evidence of various incidents which occurred on the tropical fruit farm on which she lived with the appellant and his wife. In the main, she gave evidence of a course of sexual misconduct or a pattern of sexual misbehaviour by the appellant, rather than specific sexual acts.

The other offences in respect of which the appellant was convicted occurred outside the period of the relationship alleged under s 229B(1).

The behaviour of which M gave evidence fell into six broad categories. The first related to incidents which were said to have occurred while M was riding the farm motorcycle with the appellant riding as pillion passenger. They involved the stroking of her breasts and pubic area, with the appellant putting his hands inside her pants. The second group related to afternoon rests when, according to M's evidence, the appellant would make her lie down with him on a bean bag. These incidents also involved the stroking of her pubic area under her clothing, sometimes with digital penetration of her vagina, and playing with her breasts.

The third category of behaviour of which M gave evidence involved the appellant grabbing her bottom or breast when walking past her during fruit picking. The fourth category related to morning tea breaks when, according to her evidence, the appellant would put her on his lap and stroke her breasts and pubic area under her clothing, sometimes penetrating her vagina with his finger.

The fifth and sixth categories of behaviour related to sexual conduct of the kind already described, occurring, respectively, on mornings when the appellant came into M's bedroom before she had risen and on evenings when the appellant would get her to sit on his lap on a lounge chair to watch television. On the latter occasions, according to M's evidence, the appellant's wife was present but was not aware of what was happening as M and the appellant were covered by a blanket.

M gave evidence to the effect that, in 1989, the incidents of which she complained, except those which she said took place in her room of a morning and while she and the appellant were watching television, occurred only on weekends and during school holidays, they being the occasions when she worked on the farm. M was at boarding school in 1990 and 1991 and the incidents which occurred in those years were said to have occurred during school holidays. She gave evidence that the motorcycle incidents occurred "on and off on a regular basis, whenever we'd go [fruit] picking" - "[n]ot every time, but some times". The morning tea incidents were said to involve "most of the morning teas" but "not all of them", while the television incidents were said to have occurred a minimum of two times per week, perhaps "five times one week and twice the next week". There was no evidence as to the frequency of the other incidents of which she complained.

The trial judge, Judge Dodds, instructed the jury that, to convict the appellant of maintaining a sexual relationship contrary to s 229B(1) of the Code, they "must be satisfied beyond a reasonable doubt that on at least three occasions within the time frame charged, the [appellant had], for instance, unlawfully and indecently dealt with the child". He did not, however, instruct them that they had to be satisfied of the same three offences on the same three occasions. The Court of Appeal held that there should have been a direction to that effect but dismissed the appeal as it related to the offence under s 229B(1) because, in its view, there was no substantial miscarriage of justice.

The respondent now concedes that the trial judge should have directed the jury that they were required to be satisfied as to the commission of the same three acts constituting offences of a sexual nature before they could convict the appellant of the offence charged under s 229B(1) of the Code. It is necessary to examine that concession because, unless correct, the appeal to this Court could not succeed.

The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.

Before turning to the precise issue in this appeal, it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of "an act [which] constitute[s] an offence of a sexual nature on 3 or more occasions", albeit that it does not require proof of "the dates or the exact circumstances of [the] occasions" on which the acts were committed. The sub-section's dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.

It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of "an act defined to constitute an offence of a sexual nature on 3 or more occasions" for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A).

The Court of Appeal's decision that there was no substantial miscarriage of justice in relation to the offence created by s 229B(1) of the Code was based on two considerations. First, no complaint was made at the trial with respect to the failure of the trial judge to direct the jury regarding the need to agree as to the commission of the same three acts. The second was that "the trial was conducted as an "all-or-nothing" contest between [M's] testimony and the evidence of the appellant" and, once the jury had accepted M's evidence, there was "no rational basis upon which different members of the jury might have doubted some, different, portions of her account." [7]

In dismissing the appellant's appeal as it related to his conviction for the offence created by s 229B(1), the Court of Appeal was acting pursuant to s 668E(1A) of the Code. That sub-section allows that an appeal may be dismissed, notwithstanding that the issues in the appeal might be decided in favour of the appellant, if "no substantial miscarriage of justice has actually occurred". It is well settled that the failure to take a point at trial will not necessarily warrant application of a provision such as s 668E(1A) of the Code [8] .

See, eg, Stirland v Director of Public Prosecutions [1944] AC 315 at 327-328; De Jesus v The Queen (1986) 61 ALJR 1 at 3; 68 ALR 1 at 5, per Gibbs CJ; at 6; 10, per Mason and Deane JJ; Bahri Kural v The Queen (1987) 162 CLR 502 at 512, per Toohey and Gaudron JJ.

There are occasions when a provision such as s 668E(1A) of the Code is properly applied where a point was not taken at the trial because, for example, it was not in issue or there was some forensic advantage to be gained by not raising it. In cases of that kind, the provision is applied because, having regard to the defence case, the accused was not deprived of a chance of acquittal that was fairly open, that being the accepted test for the application of a provision of that kind [9] . Thus, if the appellant was deprived of a chance of that kind, the fact that no complaint was made at trial is irrelevant.

See Mraz v The Queen (1955) 93 CLR 493 at 514, per Fullagar J; Wilde v The Queen (1988) 164 CLR 365 at 371-372, per Brennan, Dawson and Toohey JJ; at 381, per Gaudron J; Glennon v The Queen (1994) 179 CLR 1 at 9, per Mason CJ, Brennan and Toohey JJ; at 12-13, per Deane and Gaudron JJ.

The question whether, in this case, the appellant was deprived of a chance of acquittal that was fairly open is not answered by describing the trial as an "all-or-nothing" contest. To the extent that it was a contest of that kind, that was in large part the result of the evidence which, as already indicated, dealt with general patterns of sexual misconduct rather than specific sexual acts. But more importantly, the trial cannot properly be described as an "all-or-nothing" contest in which there was "no rational basis upon which different members of the jury might have doubted some, different, portions of [M's] account." [10]

As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others. And given the nature of the offence, which is established by proof of acts of a sexual nature on three occasions, there is no basis on which it can be concluded that the jury did accept all her evidence. Moreover, the evidence in the defence case differed according to the different categories of incident to which M deposed. So far as concerned the incidents which, according to M, occurred on the motorcycle and during fruit picking, the defence evidence consisted, in the main, of the appellant's denial that they occurred. However, in the case of incidents which, according to M, occurred of a morning in her bedroom, after morning tea, during afternoon rests and while watching television, the appellant's wife gave evidence which was to the effect that it was improbable, if not impossible, that those events occurred.

Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts [11] . Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open.

See S v The Queen (1989) 168 CLR 266 at 287-288, where this problem was considered in relation to the application of the proviso to s 689(1) of the Criminal Code WA, a provision not materially different from s 668E(1A) of the Code.

Instead of applying s 668E(1A) of the Code, the Court of Appeal should have allowed the appeal to that Court, so far as it concerned the appellant's conviction for the offence created by s 229B(1), and should have quashed his conviction for that offence and ordered a new trial.

At the conclusion of argument in this appeal the Court announced its decision allowing the appeal and setting aside the orders of the Court of Appeal of Queensland [12] so far as they related to count 2 of the indictment. In lieu of those orders, it was ordered that the appeal to the Court of Appeal be allowed, the conviction on count 2 be quashed and there be an order for a retrial. This Court indicated that its reasons would follow in due course. I now state my reasons.

The appeal concerns the need for accuracy and particularity in the directions given to a jury with respect to a count charging sexual misconduct where that count appears with others relating to separate sexual offences. There are two particular elements which attracted the attention of this Court. The first concerns the judicial warnings necessary with respect to a new offence provided by the Criminal Code Q (the Code), s 229B [13] . That section creates an offence of maintaining an unlawful relationship of a sexual nature with a child under the age of sixteen years. The second arises from the decision of the Court of Appeal, having found an error of law in the directions to the jury of the trial judge as to the elements of this new offence, to excuse the error on the basis that no substantial miscarriage of justice had occurred in the result [14] .

The offence was inserted in the Code by the Criminal Code, Evidence Act and other Acts Amendment Act 1989 Q. It commenced on a date appointed by proclamation, namely 3 July 1989. There is a like offence in Tasmania, where the child is under the age of seventeen years. See Criminal Code Tas, s 125A. 2. Code, s 668E(1A).

The complainant in this case is a young woman who was born in April 1975. When she was aged about two years she came under the care of KBT (the appellant) and his wife. Thereafter, she was effectively treated as their daughter. She was their only child. They lived on a property which the couple owned at Woombye in Queensland. The complainant regarded the appellant and his wife as her father and mother, although she knew that they were not her natural parents.

The first event giving rise to these proceedings was found to have occurred between 1 February 1988 and 3 April 1988, just prior to the complainant's thirteenth birthday. She gave evidence that she was in a shed on the parent's farm with her back to the appellant. He was leaning against a four-wheel motorcycle. She was leaning against him. He then touched and stroked her on the inside of her sports briefs in the pubic area. The complainant said that she was upset and confused and cried as a result of this conduct. However, at that stage she made no complaint to anyone. This incident gave rise to the first count of the indictment by which the appellant was charged with indecent dealing with a girl under the age of fourteen years [15] . The appellant denied that the event or anything like it had occurred. However, upon this count he was convicted by the jury. Although the conviction was originally challenged, the challenge was not prosecuted in the Court of Appeal. It has not concerned this Court.

Under what was then s 216 of the Code. Such conduct is now dealt with by s 210.

It is count 2 which concerns the charge of maintaining an unlawful relationship of a sexual nature with a child. In support of this charge, the Crown relied upon the evidence of the complainant. The count referred to the period between 3 July 1989 and 30 January 1991. The commencement date was fixed not by reference to any incident described by the complainant but by the date upon which the amendment to the Code, inserting the offence, took effect. The complainant's testimony was not specific as to dates. However, it was clear as to six separate and identifiable circumstances in which, she claimed, the appellant had subjected her to acts constituting offences of a sexual nature. These were:

(a) Motor bike incidents: The complainant stated that sometimes at fruit-picking time she rode her motorbike with the appellant riding as a pillion passenger. She claimed that, on such occasions, the appellant would stroke the inside of her shorts in the pubic area. Sometimes he would also stroke her breasts.

(b) Lunch rest time: These incidents allegedly occurred when the complainant was helping the appellant to pick fruit on the farm. In the hot part of the day, after lunch, he would allegedly call the complainant to lie beside him on a beanbag to rest. He would then place his hands inside her pants, stroke her pubic area, digitally penetrate her vagina and play with her breasts.

(c) Fruit picking: The complainant also gave evidence that whilst she was helping with the harvesting of fruit the appellant would pinch her bottom and grab her breast as he walked past her.

(d) Morning-tea incidents: According to the complainant when she would return home from school in a neighbouring town at weekends she would be subjected to similar conduct after morning tea. The appellant's wife would resume work picking fruit before her husband. He would remain behind and repeat the offences comprising stroking and touching of the complainant's vagina and breasts.

(e) Morning call: The complainant also stated that the appellant would come into her bedroom to wake her up. He would there stroke, touch and digitally penetrate her vagina and play with her breasts. In an attempt to avoid this conduct, the complainant said that she endeavoured to rise early so that she would be out of bed before the appellant called.

(f) Evening television: The complainant also stated that whilst watching television in the evenings, the appellant would get her to sit on his lap whilst he was seated on a lounge. He would then put a blanket over both of them and proceed to the same conduct of feeling, stroking and digitally penetrating the complainant's vagina. The complainant said that, in an endeavour to prevent this she began wearing a jumpsuit, even in hot weather. She conceded that sometime later the family began to watch television from chairs in the kitchen where such activity could not occur.

The jury found the appellant guilty of the maintenance of an unlawful sexual relationship with the complainant. She was aged fourteen and fifteen years at the time of the offences alleged in this count. Following the jury's verdict the appellant was convicted. It is against that conviction that he appealed to this Court.

There was a third count by which the appellant was charged with indecent assault of the complainant [16] . This offence was alleged to have occurred on a date somewhere between 7 June 1991 and 2 July 1991, when the complainant was sixteen years of age. This period was fixed by reference to a time when the appellant, his wife and the complainant were staying with relatives for a family wedding which took place in June 1991. The complainant said that, on this occasion, the appellant grabbed her from behind in the vicinity of the crotch whilst she was using a vacuum cleaner. She stated that the appellant touched her on the outside of her shorts and desisted when she protested. The incident was denied by the appellant. He stated that he had never seen the complainant with a vacuum cleaner during the family holiday. The appellant's wife gave evidence that she did not see the complainant using a vacuum cleaner and that she did not use a vacuum cleaner at all. This evidence was substantially confirmed by the appellant's sister-in-law who owned the house where the incident allegedly occurred. Nevertheless, the jury found the appellant guilty of the charge contained in the third count. The appellant was convicted. As with the first count, this Court has not been concerned with that conviction.

Following the trial of the appellant, which took place at Maroochydore, the jury verdicts and the convictions which followed, the appellant was sentenced by the trial judge (Judge Dodds). The judge imposed concurrent terms of imprisonment for one year in respect of each of the offences of indecent dealing and indecent assault and three years imprisonment for the offence of maintaining an unlawful sexual relationship with a child. By the time the hearing of the appeal to this Court took place, the appellant had completed serving the sentences imposed in respect of counts 1 and 3. In respect of count 2, he would have completed the non-parole period of that sentence in September 1997. He would then have been eligible to apply for parole [17] .

Corrective Services Act 1988 Q, s 166(1)(b) which provides that a prisoner is eligible to apply for parole after serving half of the term of imprisonment to which the prisoner was sentenced.

An application for leave to appeal against the severity of his sentence was refused by the Court of Appeal. That question has also not troubled this Court.

It is useful at this point to set out the provisions of the Code which were relevant to the decision by the Court of Appeal. Count 2, which is in issue, was based upon s 229B [18] of the Code which read as follows:

(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years.

(1a) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

This provision was amended by the Criminal Law Amendment Act 1997 Q, s 33, which took effect on 1 July 1997.

It will be observed that the offence provided by s 229B(1) is of a somewhat unusual character. It relates not to a particular act, matter or thing [19] happening upon a specified date at an identified place. It is inherent in the nature of a "relationship" that it will extend over a period of time and be of a continuous nature. The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship.

As will appear, the Court of Appeal found that the trial judge had erred in his directions to the jury. But it held that the case was one appropriate for the application of the "proviso". Under the Code, the relevant provision in this regard is found in s 668E of the Code. It is similar to provisions in the legislation of other States [20] . It reads:

(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice

(1a) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Criminal Appeal Act 1912 NSW, s 6(1); Crimes Act 1958 Vict, s 568(1); Criminal Law Consolidation Act 1935 SA, s 353(1); Criminal Code WA, s 689(1); Criminal Code Tas, s 402(2).

The original notice of appeal to the Court of Appeal raised three grounds for the appeal against the convictions. The first concerned a complaint that the trial judge should have ordered further particulars of the matters which constituted the evidence in respect of count 2. That ground took that Court to an examination of the requirements of particularity in the pleading and prosecution of criminal offences. Reference was made to the line of authority of this Court up to and including Walsh v Tattersall [21] . The Court of Appeal recognised the particular dangers which general allegations of sexual dealings, lacking in detail, could present for the fair trial of a person accused of an offence against s 229B of the Code [22] . It accepted the over-riding obligation of a trial judge to warn the jury about the dangers inherent in imprecise evidence [23] . It therefore determined that the appellant was entitled to particulars of the offence against s 229B(1) of the Code [24] , although having regard to the terms of s 229B(1A), he was not entitled to have specific dates or exact circumstances. The Court of Appeal concluded [25] :

Although s 229B of the Code was undoubtedly intended to avoid the degree of specificity which might otherwise have been required, necessitating a number of separate, fully detailed allegations, it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials. Nevertheless, the Court of Appeal determined that the failure to provide proper particulars had not occasioned a substantial miscarriage of justice. That determination was not re-agitated in this Court. Nor was the second ground of appeal pressed which concerned the refusal of the trial judge to order the production to the Court, for inspection by the defence, of a diary kept by the complainant. That issue, likewise, has not been agitated. 1. (1996) 188 CLR 77. The Court of Appeal also referred to Johnson v Miller (1937) 59 CLR 467 and S v The Queen (1989) 168 CLR 266. 2. R v Thompson (1996) 90 A Crim R 416 at 431. 3. R v Thompson (1996) 90 A Crim R 416 at 432. 4. R v Thompson (1996) 90 A Crim R 416 at 433 citing R v Kemp [1977] 1 Qd R 383 at 397-398. 5. R v Thompson (1996) 90 A Crim R 416 at 433-434.

The sole remaining ground was a complaint that the verdict on count 2 was unsafe and unsatisfactory. It was upon this basis that, before the Court of Appeal, the appellant was permitted to argue his submissions about the suggested misdirection of the jury on one of the elements of s 229B(1).

The issue was whether the trial judge had erred in failing to instruct the jury that it was necessary for them to be satisfied beyond reasonable doubt that at least three of the acts alleged to constitute the offences of a sexual nature had been established and to reach unanimous verdicts upon the same three offences. The Court expressed the issue thus [26] :

To establish an offence against s 229B, even if it proves a course of sexual conduct, the prosecution must prove that the accused person "as an adult, has done an act defined to constitute an offence of a sexual nature in relation to the child, on three or more occasions ". That requirement raises the question whether the section can be only satisfied by proof that the accused did an act of the kind described on at least three specific occasions, or whether proof of a course of conduct from which it can be concluded that the accused did such an act at least three times is sufficient, even though the jury might not be unanimous with respect to the occasions of the material acts. 1. R v Thompson (1996) 90 A Crim R 416 at 430-431.

By reference to an earlier decision of the Court of Appeal in R v Kemp [27] , the Court held that the jury ought to have been informed that they were required to be of the unanimous opinion that the accused had "done the same three acts, each constituting an offence of a sexual nature against the complainant" [28] . No such instruction had been given to the jury in this case. Accordingly, the Court of Appeal concluded that an error had occurred at the trial in this respect. That error enlivened consideration of the provisions of s 668E.

[1977] 1 Qd R 383. 2. R v Thompson (1996) 90 A Crim R 416 at 434.

The Court of Appeal disposed of the appeal, invoking sub-s (1A) of that section in the following passage [29] :

The inadequacy in the trial judge's directions raises the question whether a different verdict might have resulted but for the error. In considering this issue, two related matters seem to us of particular importance. One is the failure of the appellant to raise the present complaint at his trial. The other is that there was no significant attempt by the appellant at his trial to differentiate between the various aspects of the complainant's testimony concerning the sexual misconduct she alleged against him; the trial was conducted as an "all-or-nothing" contest between the complainant's testimony and the evidence of the appellant. It is plain that the jury believed the complainant, and there is no rational basis upon which different members of the jury might have doubted some, different, portions of her account. In the circumstances, we cannot identify a foundation for a conclusion that there is a possibility that an innocent person might have been convicted by reason of error by the trial judge.

Accordingly, despite error at the trial, we would dismiss the appeal.

It is from the orders of the Court of Appeal which followed this conclusion that the appeal came to this Court. 1. R v Thompson (1996) 90 A Crim R 416 at 434.

The principles of law which govern the outcome of this appeal are clear enough. They relate both to the operation of s 229B and to the application of s 668E(1A) of the Code.

It is unnecessary to elaborate the principles at great length. So far as s 229B is concerned, before this Court the Crown did not dispute the correctness of the Court of Appeal's holding that it was necessary, in order to constitute the offence, for the jury to be agreed that the prosecution had established offences of a sexual nature on three or more occasions. Where more than three occasions were alleged, it was necessary for the jury to be unanimously agreed that the same three occasions had been proved beyond reasonable doubt. That being an ingredient of the offence, it was a matter upon which the judge should have given directions to the jury. The failure to do so had established an error in the conduct of the trial.

These concessions, which I consider to have been rightly made, render it unnecessary to elaborate in this appeal in much detail the requirements of s 229B of the Code. However, it will be useful, in approaching the Court of Appeal's ultimate decision, to make further reference to the section and its ingredients. They are relevant to the consideration of the basis which finally led the Court of Appeal, notwithstanding the established error, to dismiss the appeal for want of a demonstrated miscarriage of justice in the circumstances.

As was recognised by the Court of Appeal, an accused facing a charge under the novel provisions of s 229B of the Code necessarily confronts a number of difficulties. They include the danger that generalised evidence, tendered by the prosecution to establish a s 229B "relationship", will be used by the jury as propensity evidence. There is a risk that, once satisfied that a single "act" has been committed, a jury might conclude that an accused has a propensity to guilt of the type of crime charged, and hence is guilty of an offence under s 229B [30] . The terms of s 229B(1) are inherently broad and imprecise in so far as they refer to the concept of a "relationship" of the given character [31] . To that extent, the offence created by the section involves a departure from the offences of particularity found elsewhere in the Code with which our criminal law is more familiar. Nevertheless, Parliament has provided the new offence. Clearly, it has done so to respond to community concern about the problem of child sexual abuse. It is the duty of courts to give effect to the will of Parliament. But they must do so in a trial process which ensures, so far as they can, fairness to the accused. The obligation of the courts to ensure that a fair trial is had imposes upon judges the duty of explaining the elements of the offence created by s 229B of the Code with precision and accuracy. The greater the danger of prejudice contaminating a fair trial, the greater must be the vigilance of appellate courts to ensure that the trial is had strictly as the law requires.

There is a special danger of unfairness where, as here, a crime which permits imprecise and general evidence to be proved is coupled in the indictment with other sexual offences specified with particularity. This Court has noted the special risks of unfairness where a number of sexual offences are charged together [32] . Although, as a matter of procedure, that course is permitted by the Code [33] , the dangers inherent in the possibility that a jury may infer guilt of several offences from the proof of guilt of one or some, requires care in the joinder of counts, attention to the possible need to order separate trials [34] , appropriate judicial warnings against the dangers of propensity reasoning and vigilant consideration of complaints of unfairness when these are brought on appeal following conviction.

Section 229B(1A) provides that the prosecution must prove that the offender has done an act constituting an offence of a sexual nature on three or more occasions. This statutory prerequisite must be given full effect. This is because it amounts to a parliamentary recognition of the risks involved in the offence. Those risks include the exposure of a person to conviction upon generalised evidence which it may be difficult or impossible to disprove, which need not be confirmed by testimony other than that of the complainant and which may result in a trial involving little more than accusation and denial. These risks provide reasons, quite apart from the general rule of construction ordinarily applied to a criminal statute, for adopting an approach to the preconditions laid down by Parliament which is rigorous and defensive of the fair trial of the accused. It is in this context that the previous holding of the Court of Appeal [35] and its holding in this case [36] must be understood. The jury may find offences of a sexual nature in relation to the child on more than three occasions. But to warrant a verdict of guilty of an offence against the section, the jurors must identify to themselves at least three occasions, reach unanimous agreement that the offences on those occasions are of a sexual nature, that they relate to the child and are such as to show the maintenance of the relationship charged and have been proved beyond reasonable doubt. All of these elements must be made out. It is the duty of the judge to explain to the jury the need for each one of them to be proved to their unanimous satisfaction. In default of such an explanation there will have been an error in the conduct of the trial.

Provisions such as s 668E of the Code have the purpose of recognising the imperfections which arise in any system for the trial of criminal charges. Some errors are purely formal. They do not involve a matter which was truly in issue at the trial [37] . They do not bear upon proof by the prosecution of the guilt of the accused. They do not raise, as a reasonable possibility, a risk that the error might have cost the accused a real chance of acquittal [38] . As with any statutory provision, it is the duty of courts to give effect to the terms of the "proviso" or equivalent provision such as s 668E. In doing so, it is appropriate to have regard to the strengths and weaknesses of the prosecution case and of the defence case in order to assess the significance (if any) of the error which has been demonstrated [39] . This Court has repeatedly insisted that such statutory provisions invoke no mechanical formula or rigid test [40] . Each case turns upon its own facts and circumstances. The error must be considered in the context of the conduct of the trial as a whole.

Nevertheless, the provisions of statutory powers to excuse demonstrated errors in the conduct of a criminal trial must themselves be applied having regard to the ordinary presumption that an accused person is entitled to have a trial which conforms to the law, to have a jury properly instructed on the elements of the offences charged, to have fair procedures followed and not to suffer the stigma of conviction and the burden of punishment where these basic requirements are unfulfilled. Where error is shown, it is for the Crown to establish that no substantial miscarriage of justice has occurred [41] . It must satisfy the appellate court that it can safely eliminate the possibility that the accused has thereby lost a real chance of acquittal [42] . The emphatic language of s 668E(1) of the Code makes it plain, as does the long tradition of an insistence upon accuracy and fairness in the conduct of criminal trials, that ordinarily proof of an error of law will require that the Court "shall allow the appeal". This is all the more so where the error in question has involved a failure on the part of the judge to direct the jury, accurately or at all, upon a relevant element of the offence. An accused person is entitled to have all such elements explained, and correctly explained, to the jury. Otherwise there is no means of knowing whether the jury properly understood their task and approached that task with a correct understanding of the applicable law [43] . Because an appellate court (special verdicts apart) has no real means of knowing the reasoning of a jury, it will often be inappropriate, where misdirection is shown, to invoke a provision such as s 668E(1A) of the Code, even in a strong prosecution case [44] . For all the appellate court knows, the jury might have been unimpressed with the strengths of the case that attract the appellate court. They might have been affected in their conclusion by the misdirection. This possibility, which cannot be excluded logically, has led courts of criminal appeal to remark that the application of the "proviso", to sustain criminal convictions notwithstanding judicial misdirection, is less common now than it was in the past [45] .

Where the irregularity in the conduct of the trial [46] or the misdirection can be described as fundamental, such as to go to the root of the proceedings, the question of the hypothetical verdict of a jury, properly directed, does not arise. In Wilde v The Queen [47] , Brennan, Dawson and Toohey JJ said: The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

S v The Queen (1989) 168 CLR 266 at 282; BRS v The Queen (1997) 191 CLR 275 at 291-292, 302-303, 304-306, 326-332. 2. cf R v Kemp [1997] 1 Qd R 383 at 396, per Fitzgerald P. 3. De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1; cf R v B [1989] 2 Qd R 343. 4. Code, s 567(2). 5. See Code, s 597A(1). 6. R v Kemp [1997] 1 Qd R 383 at 401, per Davies JA; cf at 395-397, per Fitzgerald P. 7. R v Thompson (1996) 90 A Crim R 416 at 433-434. 8. Wilde v The Queen (1988) 164 CLR 365 at 384. 9. R v Storey (1978) 140 CLR 364 at 376; Simic v The Queen (1980) 144 CLR 319 at 332; cf Davis v The Queen (1990) 5 WAR 269 at 282-283. 10. Glennon v The Queen (1994) 179 CLR 1 at 8; cf R v Jones (1995) 38 NSWLR 652 at 659. 11. Glennon v The Queen (1994) 179 CLR 1 at 8; cf Wilde v The Queen (1988) 164 CLR 365 at 373. 12. Mraz v The Queen (1955) 93 CLR 493 at 514, per Fullagar J. His Honour was considering the Criminal Appeal Act 1912 NSW, s 6(1) but the same principles apply to the present case. 13. cf R v Jones (1995) 38 NSWLR 652 at 659. 14. Mraz v The Queen (1955) 93 CLR 493 at 514. 15. Domican v The Queen (1992) 173 CLR 555 at 570-571; cf Wilson v The Queen (1992) 174 CLR 313 at 334-335. 16. Whittaker v The Queen (1993) 68 A Crim R 476 at 484. 17. Quartermaine v The Queen (1980) 143 CLR 595 at 600-601. 18. (1988) 164 CLR 365 at 373 (citations omitted); cf Glennon v The Queen (1994) 179 CLR 1 at 8; Green v The Queen (1997) 191 CLR 334 at 346-347.

A failure to explain to the jury, or explain accurately, the elements of the offence may sometimes constitute such a fundamental irregularity. There have been cases where such omissions have been held not to undermine the integrity of the trial [48] . Nevertheless, in such cases the proviso may not be applicable both because of the importance to the accused of having the jury's attention directed to the ingredients of the offence charged and the equal importance of satisfying the community that the trial has been conducted with legal accuracy and manifest fairness.

Holland v The Queen (1993) 67 ALJR 946 at 950-953; 117 ALR 193 at 199-202, per Mason CJ, Brennan, Deane and Toohey JJ But see Holland v The Queen (1993) 67 ALJR 946 at 954; 117 ALR 193 at 204-205, per Dawson, Gaudron and McHugh JJ dissenting.

When the foregoing principles are applied to the facts of this case it is clear, with respect, that it was not one proper for the application of s 668E(1A) of the Code. The Court of Appeal correctly recognised the dangers of unfairness which s 229B of the Code presented for the trial of the appellant. It correctly accepted the need to adopt a strict approach to the preconditions for a conviction laid down by s 229B(1A). And it correctly held that one of those preconditions was that the jury should be satisfied that the prosecution had proved that an offence of a sexual nature had occurred on three or more occasions and that they were unanimous as to the acts constituting such offences and as to the three occasions, at least, which they accepted to ground conviction for the offences. The Court of Appeal was also right to discern the distinction between this case and the circumstances in R v Kemp [49] . There, by reason of separate guilty verdicts taken on more than three specific sexual offences, it could safely be concluded that the jury had unanimously agreed that the accused had committed at least three specific acts each constituting the same offence of a sexual nature.

Two reasons were nominated by the Court of Appeal to justify the application of s 668E(1A) in this case. The first was the failure of counsel to seek a redirection at the trial. Clearly, that was a consideration relevant to the exercise of the discretion provided by s 668E(1A). But it has never been treated as a conclusive consideration [50] . If a miscarriage of justice is shown, the obligation of the judge who has charge of the trial to ensure that accurate and complete directions of the law are given to the jury is not removed because counsel, appearing for the accused, failed to assist the judge to avoid error [51] .

Stirland v Director of Public Prosecutions [1944] AC 315 at 327-328. 2. Giannarelli v The Queen (1983) 154 CLR 212 at 230; De Jesus v The Queen (1986) 61 ALJR 1 at 3; 68 ALR 1 at 5; Bahri Kural v The Queen (1987) 162 CLR 502 at 512-513; cf R v Lovet [1986] 1 Qd R 52 at 56-58; Robinson v The Queen (1991) 180 CLR 531 noted Criminal Law Journal, vol 16 (1992) 59, at p 60 (where the point was not raised either at trial or in the Queensland Court of Criminal Appeal); Towner v The Queen (1991) 56 A Crim R 221 at 227-228.

The second ground mentioned by the Court of Appeal was that this was an "all-or-nothing" trial. The appellant's defence was one of absolute denial. It was therefore submitted that no significant attempt had been made to differentiate between the various aspects of the complainant's testimony. Accordingly, it was reasoned, the proper inference to be drawn from the juror's verdicts, understood in the light of the trial, was that the complainant was wholly accepted and the appellant's denials wholly rejected. For the Crown it was argued that, in the light of the conduct of the trial, it would have been perverse for the jury to have rejected particular incidents alleged to involve sexual offences constituting the unlawful relationship whilst still convicting the appellant on that charge. It was common ground that the judge had given proper instructions on the onus of proof and on the need for unanimity as well as on their right to accept or reject the testimony of each witness in whole or in part.

The difficulty with these submissions (as with the conclusion of the Court of Appeal) is that the only way that it was open to the appellant to meet the accusations made against him was such a denial. If he be presumed innocent, as the law requires, that was his appropriate defence. Where possible, he could seek support from the evidence of his wife. In this latter respect, there were important differentiations between the evidence which the appellant's wife gave on the particular offences which were relied upon to constitute the precondition for a conviction of the offence against s 229B of the Code.

Thus, in relation to the alleged motorbike incidents or fruit-picking incidents, the wife could give no relevant evidence as she was not present, or alleged to be present, when they occurred. But in respect of the lunch rest-time incidents, morning-tea incidents, morning wake-up incidents, and evening television incidents, the wife was present or close nearby. She gave apparently honest and measured evidence which it would have been open to the jury, or particular jurors, to accept.

Thus, in relation to the lunch rest-time incidents, there was a dispute concerning how long the appellant typically slept and whether he did so on the beanbag as alleged by the complainant. The wife gave evidence that she ordinarily slept upstairs and did not know where the complainant went at lunch-time. She stated her impression that her husband did not take a nap on the beanbag but could go no further. In relation to the morning-tea incidents, the appellant's evidence was that he and his wife returned to work together and that she never returned to work before he did. The wife confirmed that this was ordinarily so. She conceded that he "rarely" stayed back after she had resumed work. So far as the morning call, the appellant's wife stated that the appellant never went into the complainant's room early in the mornings. She affirmed the appellant's evidence in that regard. So far as the evening television incidents were concerned, the appellant's wife stated that the family rarely watched television and then only from the kitchen. On infrequent occasions when the appellant and the complainant had sat together on the lounge, they had never, so far as she could recall, shared a blanket. She stated that the complainant had rarely worn a jumpsuit.

The foregoing evidence presented distinct conflicts of testimony which it was the jury's province to unravel. If the jury, or members of the jury, were impressed with the wife's evidence, it is possible that they, or some of them, may have had doubts about the lunch rest-time incidents, the morning-tea incidents, the wake-up call and evening television incidents. The possibilities of various combinations of juror resolution of the accusations and denials about such incidents are such that it cannot be affirmatively determined that upon any of the categories of incident, the requisite juror unanimity was obtained. Logically, it is equally possible that particular jurors were convinced of some, but not all, of the categories of incident. Each one of them may have been convinced as to three offences. They were properly instructed that three were required. But not having been instructed that the same three were required, it cannot be denied that the jurors may have severally reached their conclusions upon the basis of different offences. If they did so, that would not have conformed to the correct application of s 229B(1A) of the Code. Because the juror's verdicts in this case give no clue as to their reasoning, it is impossible to say either that they settled upon the same three or more offences or that their conclusions, reflected in their verdicts on count 2, necessarily implied unanimous agreement about the same three or more offences so as to sustain the verdicts, notwithstanding the error in the judicial direction.

The fact that the main issue at the trial was the complainant's veracity did not relieve the prosecution of the obligation to make out all of the ingredients of the offence. On the contrary, the terms of the Code and the risks of injustice to the accused made it essential that the elements of the offence be accurately explained by the trial judge. This did not occur. Whether this was a fundamental irregularity in the conduct of the trial or not, it was certainly a very important defect. The possibility that it affected the jury's reasoning cannot be eliminated. Upon that footing the appellant lost a chance, fairly open to him, of acquittal.

It was for these reasons that I joined in the orders made by the Court on 25 June 1997. Having regard to the fact that any retrial would subject the complainant, as well as the appellant, to a significant further ordeal and to the fact that the appellant had almost completed serving the non-parole part of his sentence, it may not be appropriate for the retrial which was ordered to take place. However, that is a matter which the Court left to the Director of Public Prosecutions to determine [52] . An order for costs was sought by the appellant but this was not a case where such an order would have been appropriate [53] . Accordingly, no cost order was made.

Crofts v The Queen (1996) 186 CLR 427 at 452, citing McHugh J's closing comment in Longman v The Queen (1989) 168 CLR 79 at 109. 2. cf R v Whitworth (1988) 164 CLR 500 at 501.

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Cases Cited (23)