Court of Appeal (Qld)|2009-07-21|Before: Chief Justice, Keane JA and Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Chief Justice, Keane JA and Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
– MISDIRECTION
OR NON-DIRECTION – where jury given directions on corroboration –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE– PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE– MISDIRECTIONOR NON-DIRECTION – where jury given directions on corroboration –where no direction was soughtor given as to how a montage image of onecomplainant’s face superimposed on a nude body with a picture of a peniscould beused by the jury – where certain directions were not given inrelation to the appellant’s record of interview –where a searchwarrant was issued enabling the seizure of the appellant’s computer– whether a miscarriage of justiceoccurred due to the inadequate,erroneous or absent directions of the trial judgeCRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where convicted at trial of 1 count maintaining an unlawfulsexual relationship, 4 counts indecent
treatment of children under the age of
12, 3 counts possession of objectionable computer game, and 1 count making an
objectionable
computer game – where the appellant placed his penis in each
of the complainants’ mouths – where the appellant’s
computer
was seized and found to contain child pornography and offensive computer games
– whether the sentence imposed by the
trial judge was manifestly excessive
Police Powers and Responsibilities Act 2000 (Qld) s 69,
s 74(1)(b), s 74(1)(h)
Bunning v Cross (1978) 141 CLR 54
[1978] HCA 22,
considered
Dobbs v Ward [2003] 1 Qd R 158
[2002] QSC
109, considered
HML v The Queen (2008) 235 CLR 334
[2008]
HCA 16, cited
R v BBQ [2009] QCA
166, distinguished
R v D [1996] 1 Qd R 363
[1995] QCA
329, considered
R v Kerim [1988] 1 Qd R 426,
considered
R v TS [2008] QCA
370, considered
Judgment (85 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - where jury given directions on corroboration - where no direction was sought or given as to how a montage image of one complainant's face superimposed on a nude body with a picture of a penis could be used by the jury - where certain directions were not given in relation to the appellant's record of interview - where a search warrant was issued enabling the seizure of the appellant's computer - whether a miscarriage of justice occurred due to the inadequate, erroneous or absent directions of the trial judge
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL -APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where convicted at trial of 1 count maintaining an unlawful sexual relationship, 4 counts indecent treatment of children under the age of 12, 3 counts possession of objectionable computer game, and 1 count making an objectionable computer game - where the appellant placed his penis in each of the complainants' mouths - where the appellant's computer was seized and found to contain child pornography and offensive computer games - whether the sentence imposed by the trial judge was manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[12]
[1] CHIEF JUSTICE: The appellant was on 28 August 2007 convicted, at a trial, on four counts of the indecent treatment of two children under the age of 12 years, and one count of maintaining a sexual relationship with one of them. He then (on 25 September 2007) pleaded guilty to three additional charges, child abuse computer game offences.
[13]
[2] He was sentenced, for the maintaining offence to five years, 10 months and two weeks imprisonment (calculated as six years less 45 days already served), four years imprisonment on each of the counts of unlawful and indecent dealing, and nine months for the child abuse computer game offences. All sentences are to be served concurrently, with a recommendation for eligibility for parole after the serving of three years.
[14]
[3] The complainants were six year old girls at the time of the offences. S is the complainant in count one, and A in counts two to five. Count five, maintaining, depends on the conduct in relation to A comprised in counts two to four.
[15]
[4] The complainants resided with their mothers in the same unit complex as occupied by the appellant. With the acquiescence of their mothers, the girls would visit the appellant at his unit. The offending in relation to each of the girls followed a similar pattern. After grooming each child with a "tasting" game, the appellant deprived the child of the use of her sight (requiring S to keep her eyes closed, and A to wear a bandana or goggles with blacked out lenses), and put his penis into the mouth of each saying it was his thumb. The count involving S involved conduct in 1999, and each of the other counts (A), conduct between September 1997 and December 1999. The complainants did not disclose the offences until some years later: S in 2005 and A about seven years after the events. S could recall only one particular episode (count one), with an unspecified number of others; and A could recall only three in particular (counts two to four) of a range of about 10. The counts were joined in the indictment on the basis that the evidence of each child was admissible in the proof of the allegations of the other.
[16]
[5] Each complainant provided a s 93A statement, and pre-recorded evidence. In addition, the jury heard evidence from each of the complainant's mothers; from the investigating police officer Naomi Lockhart, who obtained the s 93A statements, formally interviewed the appellant and executed a search warrant during which two computers and a number of documents were seized (including a montage photo exhibit nine); and from Jason Wright, a police officer who forensically examined the appellant's computers and recovered exhibits 11 to 14 from them. Those exhibits refer in a fragmentary way to incidents related by each of the complainants.
[17]
[6] The appellant did not give or call evidence. He took part in one record of interview relating to the allegations of the complainant S only. He denied all wrong doing, but made a number of statements potentially against his interest. His record of interview was tendered as part of the prosecution case.
[18]
[7] The appellant presently suffers from a medical condition which inhibits his capacity to speak. He was represented at the hearing of the appeal on a pro bono basis by Mr P E Smith and Mr A M Hoare of Counsel, instructed by Mr T W George of Suthers Lawyers, who are to be commended for having appeared on that basis. The appellant observed the hearing of the appeal by video link to the correctional centre.
[19]
[8] In the notice of appeal filed on 17 October 2007, the specified ground is that "the verdict ... was unreasonable". The notice also referred to a covering letter, which mentions fresh evidence (none was however presented) and grounds to be set out in an outline of submissions. We have the benefit of the appellant's counsel's outline, from which further grounds may be gleaned. Mr Cummings, who appeared for the respondent, has conveniently summarized those grounds. The contention is that a miscarriage of justice occurred because of:
[20]
"Inadequate, erroneous or absent directions, namely:
[21]
the directions on corroboration
the composite image or montage (Ex 9)
the accused's interview
the wrongful admission of evidence, namely, portions of the appellant's record of interview, and evidence obtained pursuant to the search warrant."
[22]
[10] This concerns exhibits 11, 12, 13A and B and 14.
[23]
[11] Exhibit 11 comprises documents from a folder called A in the appellant's laptop computer. The documents are relatively nondescript in character: a note from A to her mother thanking her for getting things from a shop, a drawing by A, a reference to a programme for A to enjoy, a diary entry, a thank you note to A and B for watering the garden, a note about A and B moving, and note to B concerning gifts, a note about A getting wet etc.
[24]
[12] Exhibit 12 comprises letters relating to S and her mother.
[25]
[13] Exhibit 13A comprised extracts from card files maintained by the appellant. There was reference to a taste test involving custard and yoghurt, sugarcane, ice cream, Kit Kat and a thumb, although no reference to the sucking of any penis. There were other references, to cuddles with someone else and a taste test with A, and elsewhere, to abortions, hot kisses, naked breasts, sexy kiss etc. Exhibit 13 comprised screen captures of a card programme. Again, there was no reference to any sucking of a penis. Exhibit 14 comprised 1998 and 1999 calendar files, including reference to "angel" being orgasmic and extremely sexy, and her looking at a slide feeling sexy, licking and sucking.
[26]
[14] The trial Judge, choosing to give a direction on corroboration (cf s 632 Criminal Code), directed the jury that exhibits 11 and 12 were not capable of corroborating the evidence of the complainants. Particular complaint is, however, made of what the Judge said in relation to exhibits 13 and 14, in this passage:
[27]
"Now, when you consider this evidence (evidence from S as to the tasting episode) you might care to relate it to some of the statements which the accused has written in Exhibits 13A and B and 14 and see if you can marry any of those up, it's a matter for you."
[28]
[15] For example, the "not a thumb - no nail" in the "Extract from Card files" at p 510 of the record book could be 'married up' with A's evidence it was not a thumb inserted into her mouth.
[29]
[16] The complaint rests in the point of departure between prosecution and defence. As Counsel for the appellant say:
[30]
"... The battleline between the Crown and the defence was over whether there was a taste testing game (with innocent objects, including a thumb) and the complainants were untruthful or mistaken as to the nature of the insertion of a penis; or whether the appellant put his penis into the mouth of each of the complainants. The notes confirmed there was a taste testing game but that was exactly the defence. The notes did not distinctly confirm the complainants' accounts of the material particular, that is that a penis had been placed in the mouth."
[31]
[17] Counsel for the appellant referred to what was said in R v Kerim [1988] 1 Qd R 426, 432, to the effect that before evidence is capable of being corroborative, "it must show or tend to show that the complainant's evidence of the commission of the relevant offence was true as to a material particular and that the accused was implicated in the commission of the offence."
[32]
[18] It may be doubted whether the Judge was in the quoted passage in fact directing the jury on the potentially corroborative value of the evidence contained in those exhibits, but rather simply reminding the jury of the potential relevance of those exhibits in the context of other evidence. But nevertheless, the evidence was potentially corroborative, when one appreciates the distinction drawn in Kerim (pp 432-3, 447) between evidence "involving" an accused in the relevant conduct, and evidence "implicating" the accused; and it is presently significant that no objection to this aspect of the summing up was taken by the Defence Counsel, who in fact expressly acknowledged the potentially corroborative value of the evidence.
[33]
[19] Counsel for the appellant sought to equate the contents of these exhibits to confessional statements, so as to necessitate a direction about satisfaction that the confession was made and as to the truth of the matter in question. Such a direction was not necessary, bearing in mind the relevance of the evidence as supportive in that sense.
[34]
[20] Counsel also drew attention to this passage in the summing-up:
[35]
"The offences alleged here are said to be constituted by the accused placing his penis in the mouth of very young complainants, they were both aged about six at the time. In order to be corroborative evidence need not directly confirm or even relate to the circumstances of the offence described by the complainant or otherwise refer to a constituent element of the offence. What is required is evidence which corroborates a witness' evidence of a disputed matter. It's evidence which adds to the probability that the evidence of the complainants in this case of a particular matter is correct. Evidence which adds to the probability that the evidence of either complainant of a particular matter is correct might or might not add to the probability that the evidence of the witness of some other matter is correct."
[36]
[21] Now that a traditional direction on corroboration in such a case is not statutorily mandated, it suffices, in these cases of delay and limited evidence, to refer to other evidence which may tend to support relevant aspects of the complainant's evidence. Read as a whole, the passage set out above was adequate, in the context of the Judge's separate warning to the jury about danger in convicting on a complainant's evidence alone, absent scrutiny etc.
[37]
[22] Exhibit 9 was seized during the execution of a search warrant at the appellant's house. It is a photograph of A's face superimposed on a nude body with a picture of a penis.
[38]
[23] No particular direction was sought or given in relation to how the jury might use that evidence. Counsel for the appellant submit that the jury should have been directed that "they may only use the evidence if they accepted beyond reasonable doubt that the only reason for the exhibit's creation was the reason contended for by the prosecution".
[39]
[24] The prosecution case was that the image showed that at some stage (the date of the creation of the montage was not established) the appellant thought of A in terms of taking the penis into her mouth, in other words, that he felt sexually attracted towards A, and that the evidence was potentially corroborative.
[40]
[25] Counsel for the appellant concede that, but assert that a direction was required stipulating a need for proof beyond reasonable doubt in relation to that particular exhibit. This evidence amounted to a strand in what was essentially a circumstantial case. It was not evidence to establish an indispensable step in reasoning towards guilt. There was no need for a special direction in relation to the standard of proof concerning this particular evidence. See HML v R [2008] HCA 16; (2008) 235 CLR 334, 361.
[41]
[26] If a propensity warning was required, a sufficient warning was given, when the Judge said to the jury:
[42]
"A criminal trial is not a trial of the accused's character or propensity towards criminal conduct, it is a trial of whether he committed the offences charged against him."
[43]
and that is so notwithstanding it followed the similar fact direction.
[44]
[27] The appellant was interviewed by police officers on 31 March 2005, the same day as the search warrant was executed. Because there had by then been no complaint by A, the interview was confined to the allegations made by S.
[45]
[28] During the interview, the police officer told the appellant that it took S a long time to make her complaint because she had been too scared to do so earlier. A little later the police officer asked: "So, what - what are you saying? Are you calling - are you saying that S is lying or ... ?" That drew this response from the appellant: "What I'm saying is she's misrepresenting the things that she saw, that's all."
[46]
[29] Counsel for the appellant submit that "the trial Judge should have told the jury that it was not for the accused to prove his innocence. The question by the police officer tended to reverse the onus here."
[47]
[30] The statement about S being scared should be put in context. The appellant had just referred to the circumstances in which S came to his unit, "to play with the computer, just play around, do a little bit of this preliminary stuff that - that was - my idea is taste test. ... that was it." Then he added: "she never said anything to me about - if she said, 'I don't want to do this test. I don't want to do it.' ... then I would have stopped immediately." Then the police officer said: "She's also told police that she's been scared which is why it's taken her so long to disclose." That drew the response: "Look, she ... definitely never, ever left my house scared."
[48]
[31] Somewhat later in the interview these exchanges occurred:
[49]
"we're talking six months later; is that what you're saying? ... it's a long time down the track when she's put these things together? - What I'm saying is ... she's put these things together a long time - I mean, I'm not a child psychologist, but ...
[50]
And that's your reasoning behind it, is that right? - I'm ... saying that she's put a number of things together and ... certainly they weren't - they weren't the reality. And if I wanted - as I said, I would find nothing more frustrating than ... initiating oral sex and not having full satisfaction.
[51]
That - that's ... at that time? - I mean totally - totally. ...
[52]
So, what - what are you saying? Are you calling - are you saying that S is lying or ... ? - What I'm saying is she's misrepresenting the things that she saw, that's all.
[53]
and I'm just saying that during the time ... that she was there and she visited, there was absolutely no cause for concern and nothing that she put to me and nothing her mother put to me and nothing her father, when he arrived, put to me ... she was happy and she would just come over every now and again and do the things for as long as she was not bored."
[54]
[32] The question by the police officer to which exception is taken would have been interpreted by the jury, not as an attempt to reverse any onus of proof, but the police officer's attempt to come to some understanding of what Counsel for the respondent reasonably described as a "lengthy and almost unintelligible series of statements (previously) made by the appellant".
[55]
[33] The Judge gave orthodox directions about the onus of proof, and it is significant in this case that no redirection was sought.
[56]
[34] I note that the appellant's trial Counsel was specifically instructed not to take objection to that part of the interview.
[57]
[35] Counsel for the appellant additionally submitted that the jury should have been instructed that "even if they thought the accused's account was unconvincing, if they were left in a state of reasonable doubt after considering the interview, the verdicts would be not guilty". The appellant neither called nor gave evidence. Giving such a direction in this particular case may have operated adversely to the appellant, in highlighting a number of aspects of the appellant's record of interview about which the jury may well have been sceptical already. Again it is significant that Defence Counsel at the trial did not seek such a direction. There may well have been a forensic reason for that, consistently with the instruction not to take objection to that part of the interview.
[58]
[36] During the interview, the appellant spoke of experiencing fantasies, in relation to girls of 16 or 17, a nude fantasy, of having an image of a 15 or 16 year old girl, of oral sex fantasies, about young teens with a slender figure, and about being shaved and smaller breasts. The trial Judge at a pre-trial hearing had ruled against the exclusion of that evidence. A suggestion the appellant bore no sexual interest in younger girls did not sit well with the montage exhibit 9.
[59]
[37] Counsel for the appellant submitted that the evidence should have been excluded, or if included, that it should have drawn a direction as to how it should be approached. I accept it was not propensity evidence. The evidence was nevertheless relevant in potentially assisting the jury to an understanding of the appellant's attitude to sexual matters, notwithstanding it concerned teenage girls not younger girls. The references to nudity, oral sex, sexual relations with girls and fantasies were directly relevant to the conduct alleged against the appellant by the complainants. No specific direction was required, and again it is significant in this case that none was sought.
[60]
[38] Counsel for the appellant submitted a particular direction was required, in light of R v BBQ [2009] QCA 166, paras 57, 58, 61, 65. In BBQ, the accused admitted to discreditable conduct. Here, the relevant material went no further than to establish what Mr Cummings fairly described as the appellant's "mindset". BBQ would not have required a particular direction in this situation.
[61]
[39] At an earlier trial which was aborted, the appellant objected to the seizure of the image which later became exhibit 9. That is the montage of other images found among other material near the appellant's computer in his computer room during the search. When the trial to which this appeal relates commenced, the appellant simply adopted his previous approach to the search warrant.
[62]
[40] When the warrant was issued, the evidence available to the police comprised the section 93A statement of S. In that statement, S referred to using a computer at about the time of the offence, and the appellant drawing her something on the computer.
[63]
[41] No direct evidence was called in support of the application for exclusion, and the only materials placed before the trial Judge were a copy of the warrant, and a photocopy of the application for the warrant. While the nature of the charge was not specified in the photocopy of the application, it was correctly stated in the warrant itself.
[64]
[42] The warrant permitted the police to obtain "all storage media including hard discs, tapes and other removable media and any other device containing programmes of data relating to exposure to any type of adult or child pornography as well as media relating to computer chess and drawing games". The defence contention was that those items were irrelevant to the charge, which was of indecent dealing, and that the police were engaged in a "fishing" expedition. Counsel for the appellant in the outline go so far as to contend that the police "had consciously and intentionally tried to find other material for other offences", though Mr Smith appeared to retreat from that position somewhat at the oral hearing.
[65]
[43] The basis of the defence contention was that the justice who issued the warrant could not possibly have been satisfied that there were "reasonable grounds for suspecting evidence of the commission of an offence ... is at the place": s 69 Police Powers and Responsibilities Act 2000 (Qld). The trial Judge rejected that contention, and concluded that the relevant material could properly have been seized under the warrant, or at the least, that its seizure was permitted by s 74(1)(h) of the Act. (The Judge wrongly referred to ss 151 and 157(1)(h), but they are in identical terms to ss 69 and 74(1)(b) respectively.)
[66]
[44] As stated in Dobbs v Ward & Anor [2002] QSC 109 at para 19:
[67]
"The statutory requirement of 'reasonable grounds' for suspicion is a requirement of 'the existence of facts which are sufficient to induce that state of mind in a reasonable person'. Suspicion itself is 'a state of conjecture or surmise where proof is lacking'."
[68]
[45] The issuing justice could in this case have reached that level of satisfaction. The police officer was investigating an allegation that the appellant, while in the computer room, caused S to close her eyes, and that while her eyes were closed he placed his penis in her mouth. It was appropriate that that officer "conjecture or surmise" that in those circumstances the appellant's computer may have contained evidence in support of a charge of indecent treatment, some diary note, for example, or the picture S said he drew for her.
[69]
[46] Counsel for the appellant also submitted that the justice acted improperly in issuing the warrant, simply "rubber stamping" it. The primary Judge rejected that contention. It appears to have been based, in addition to the matter dealt with above, on the circumstances that although the warrant was dated 30 March 2005 on pages 1 and 2, it was dated 29 March on page 3, and that the nature of the charge was not specified in the photocopy of the application. There was in fact no evidence that the charge was absent from the actual application. That aside, these are mere irregularities which would not warrant a conclusion that the person issuing the warrant did not properly exercise the requisite discretion. Any flaws in the process of obtaining the issue of the warrant were of a distinctly technical character, and not the result of any bad faith on the part of any police officer. In those circumstances, it would be an appropriate case for the exercise of the Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 discretion in favour of the admission of the evidence seized under the authority of the warrant.
[70]
[47] The appellant furnished additional material in writing. A typed copy has been placed with the file. That material does not disclose any additional sustainable ground for overturning the convictions.
[71]
[48] The appeal against conviction should be dismissed.
[72]
Application for leave to appeal against sentence
[73]
[49] The appellant committed the offences when he was 45 to 46 years of age, and in the case of the possession of the child pornography, 52 years of age. He was 54 years of age at the time of sentence. As has been observed, he was imprisoned for five years, 10 months and two weeks with respect to the maintaining offence, for four years in relation to the indecent treatment offences, and nine months with respect to the child abuse computer game offences. All sentences are to be served concurrently, with parole eligibility recommended after the serving of three years.
[74]
[50] As to the child pornography offences, the applicant's computer contained 1,390 relevant images. Most of them depicted children in nude poses, although a small number displayed oral and vaginal sex, and one involved digital penetration and oral ejaculation into the mouth.
[75]
[51] The applicant had no prior criminal history. He had a good employment history, although he had lost his employment shortly before the offences were committed. Favourable character references were placed before the sentencing Judge.
[76]
[52] The Crown Prosecutor submitted for a head sentence in the range four to six years, while the defence contended for a head sentence of three years.
[77]
[53] The learned Judge observed that because of the conviction on the maintaining count, which related to a period of 7-8 months, the jury must have been satisfied there was an ongoing relationship of a sexual character between the applicant and A. The Judge mentioned in his sentencing remarks that A referred to similar acts "on at least 10 other occasions". The Judge was probably doing no more than saying the three particularized specified occasions were not isolated, which was relevant. See R v TS [2008] QCA 370, para 33, and R v D [1995] QCA 329; [1996] 1 Qd R 363, 403. The Judge noted that each of the complainants was six years of age at the time of the offending. He noted that the commission of the offences involved a gross breach of trust, and that there was no expression of contrition save in respect of the offences to which the applicant had pleaded guilty. He noted the victim impact statements, which show continuing adverse effect.
[78]
[54] Counsel for the applicant emphasized that "all counts involved the partial insertion of the penis into the mouth of the complainant. There was no digital or other penetration of the complainants' vaginas and it does not seem that the activity went on for terribly long with respect to each of the complainants. Additionally, there was a significant delay between the offending and the making of the complaints."
[79]
[55] Counsel have helpfully reviewed the authorities, and there is no need for any particular further analysis of them here.
[80]
[56] The cases referred to, for the respondent, were R v Myers [2009] QCA 14 (single complainant, and older - 12-14 years), R v MAM [2005] QCA 323 (where the complainant girls were, again, substantially older, 12-13 years) and R v T [2000] QCA 282; (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for the absence of rape or carnal knowledge.
[81]
[57] In my view, however, the sentences which were imposed were within an appropriate range, and it has not been demonstrated that they were manifestly excessive. Critical considerations are the very young age of the complainants, that the applicant went to lengths to avoid detection (the 'taste test' artifice, blindfolding, the 'coded' reference in the computer records etc), the breach of trust, and the residual adverse effect upon the complainants.
[82]
[58] The learned Judge declared a period of 26 days, from 30 August 2007 to 25 September 2007, to be time already served under the sentences imposed on the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship. The period of pre-sentence custody was in fact from 28 August 2007 to 25 September 2007, which is 28 days. There should therefore be an order that the declaration as to pre-sentence custody made by the primary Judge be set aside, and that there be a declaration that the period of pre-sentence custody from 28 August 2007 to 25 September 2007, namely 28 days, is time already served under the sentences imposed for the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship.
[83]
[59] The application for leave to appeal against sentence should otherwise be refused.
[84]
[60] KEANE JA: I agree with the reasons for judgment of the Chief Justice and with the orders proposed by his Honour.
[85]
[61] WILSON J: I agree with the orders proposed by the Chief Justice, and with his Honour's reasons for judgment.