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PROCEEDING: Application for Extension (Conviction)

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 10 December 2002

DELIVERED AT: Brisbane

HEARING DATE: 27 November 2002

JUDGES: McPherson and Williams JJA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application to extend time dismissed.

CATCHWORDS: APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – crown did not oppose grant of extension – whether appeal must have prospects of success to proceed / CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – maintaining sexual relationship with a child – whether uncharged acts admissible as evidence of relationship / Criminal Code (Qld), s 229B / KBT v The Queen (1997) 191 CLR 417, followed / S v The Queen (1989) 168 CLR 266, applied

COUNSEL: The applicant appeared on his own behalf / BG Campbell for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: This is an application for an extension of time within which to appeal against conviction following a verdict of guilty at a trial in the District Court at Townsville on 22 August 2002. The applicant was convicted of count 1: maintaining a sexual relationship with a child, with a circumstance of aggravation; count 2: unlawful and indecent dealing with a child under 16 years; count 3: attempted rape; and count 4: rape. As to count 4, the applicant had denied rape but at the trial admitted through his counsel having had sexual intercourse, as a result of which a child was born to the complainant. His admission to that effect followed DNA testing which showed he was the father of the child.

2. There is no dispute that the need for an extension of time has arisen from an oversight on the part of the applicant’s legal representative, and the Crown would not oppose an extension of time on that ground. If that were the only condition to be satisfied the extension would be granted. It is, however, also necessary to examine the prospects of success of an appeal if it were to be allowed to proceed.

3. Grounds 1 and 2 of the proposed notice of appeal are as follows:

“1.The learned trial judge erred in directing the jury that uncharged acts could be relied upon as acts of a sexual nature in determining whether the appellant was guilty of maintaining a sexual relationship.

2.The learned trial judge erred in directing the jury that they could find the appellant guilty of maintaining a sexual relationship if they were satisfied beyond reasonable doubt of the same three or more uncharged acts of a sexual nature.”

4. The background to these two grounds can be explained by saying that at the trial the complainant gave evidence of the incidents that were the subjects of the specific charges in counts 2 to 4. In support of count 1, she also gave evidence of various other sexual acts by the applicant of similar kinds that were not charged against him because she was unable to assign particular dates to the acts in question. For example, when they were staying at Aitkenvale Hostel, what happened, she said, was that the accused lay down beside her, pulled his penis out and asked her to touch it and play with it. The complainant said this happened whenever the complainant’s foster mother Betty went to the casino, which she did on many occasions; and that that type of indecent dealing took place during the day time and at night. It represented part of the evidence relied on to establish the charge of maintaining a sexual relationship in count 1. So also were other incidents of that kind which occurred when they were living at another address that was specified, and so on.

5. When the trial judge came to sum up on this count, he referred the jury to s 229B of the Criminal Code. Section 229B(1) provides that an adult who maintains a sexual relationship with a child is guilty of a crime. Section 229B(2) then goes on to say that a person shall not be convicted of the offence in s 229B(1):

“… unless it is shown that the accused person .. has … done an act defined to constitute an offence of a sexual nature in relation to the child … on three or more occasions …”.

Section 229B(2) then proceeds to add:

“… 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.”

6. The learned trial judge read these provisions, or extracts from them, to the jury and explained how they operated. In accordance with the decision of the High Court in KBT v The Queen (1997) 191 CLR 417, he also directed them that, before convicting of the offence under s 229B charged in count 1, it was necessary for them to be unanimous about the same three sexual acts; that is, for all of them to be satisfied that the same three sexual acts had taken place, saying amongst other things:

“You all have to be satisfied about the same three.”

7. It does not appear from the material before us that at the trial there was any objection to the adduction of evidence about other sexual acts; that is, other than those charged in counts 2, 3 and 4. Nevertheless, when redirections were invited, counsel for the defence questioned his Honour’s direction to the jury on this matter in relation to count 1. The issue, counsel submitted, was his Honour’s direction to the effect that if the jury were satisfied:

“that, for example, three offences of indecent dealing occurred at Stamford, and they were unanimous as to the same three offences, that would be capable of sustaining … a charge under count 1. In my submission KBT [v The Queen] goes further than that to the extent that not only would they need to be satisfied of more particularised incidents such as those alleged by the Crown in counts 2, 3 and 4 …

The remainder of the submission trailed off into an observation that the incidents at a place called Stamford and at other locations were fairly general and vague. The point nevertheless seems to have been raised that, properly interpreted, s 229B permitted the charge against the applicant in count 1 of maintaining a sexual relationship with the complainant to be sustained only by those sexual acts that were specifically charged in counts 2, 3 and 4 of the indictment. That appears clearly enough to be the tenor or effect of ground 1 of the projected notice of appeal, of which ground 2 is simply an alternative version.

8. When one returns to the specific provisions of s 229B(2) it seems to me that any such interpretation of s 229B is untenable. Subsection (2) speaks generally of doing “an act defined to constitute an offence of a sexual nature … on more than three occasions…”. It says nothing to the effect that the act or offence in question must be one that is charged as having been committed by the accused. Indeed, to read it as doing so would not be consistent as a matter of principle with the final sentence of s 229B(2) which makes evidence of such an act admissible and probative of the maintenance of the sexual relationship despite its failure to disclose dates or circumstances of the occasions of such acts. If s 229B(2) applied only to sexual acts that were specifically charged, it would also mean that s 229B(2) permitted and authorised the accused to be charged with and tried for a particular act of a sexual nature even though the evidence in support of it was not sufficient to identify either the date or the circumstance of the occasion on which that act was committed. That would be contrary to the principles of procedural fairness recognised and given effect in S v The Queen (1989) 168 CLR 266 concerning the accused’s right to particulars of an offence charged.

9. There is nothing in KBT v The Queen that lends support to the submission at trial. In discussing the provision in what is now s 229B(2), Kirby J said in that case (191 CLR 417, 418):

“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 (Johnson v Miller (1937) 59 CLR 467 at 489) happening upon a special 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.”

This, with respect, accurately states the purpose of the provision, which was formerly contained in s 229(1A). It is confined to sexual acts that go to constitute the maintaining of a sexual relationship, which are not charged against the accused as specific offences in the indictment. In the case of those acts, but not of others which are specifically charged, precise identification of dates and circumstances is not essential; but evidence of the doing of such an act may be given if otherwise admissible and probative of the relationship alleged. See, generally, R v S [1999] 2 Qd R 89, the reasons in which are determinative of the point sought to be raised here.

10. In my view, the proposed grounds of appeal are not well founded and cannot succeed. The applicant, who appeared in person at a video hearing before this Court, complained that the jury should not have reached a verdict of guilty against him. He claimed that on some of the occasions when he was alleged to have carried out sexual acts upon the complainant, he would have been at work or otherwise absent from the place where those acts were said to have been performed. He also suggested that it was not he but another man in the house who might have been the perpetrator. In addition, he said that the complainant had, in effect, thrown herself upon him in the first place, and that she had continued to pursue him even after his relationship with Betty had come to an end and he had gone elsewhere.

11. If relevant, these were all matters for the jury to consider at the trial. On the material now presented to this Court, they would not justify an order setting aside the verdict. It is noteworthy that in the draft notice of appeal none of these matters is raised as a ground for appealing.

12. The application to extend time for appealing must be dismissed.

13. WILLIAMS JA: I agree with the reasons for judgment of McPherson JA and with the order therein proposed.

14. PHILIPPIDES J: I agree with the reasons of McPherson JA and with the order proposed.