R v. C [1993] QCA 344 (20 September 1993)

Court of Appeal (Qld)|1993-09-20|Before: Pincus J, Ambrose J, White J, Mr P, Before Pincus J

C appeals against his conviction in the District Court of four offences and seeks leave to appeal against sentence. The four counts were one of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years and three counts of unlawfully having carnal knowledge of a female child under the age of 16 years. As to the first count, it was alleged that in the course of maintaining the relationship the appellant unlawfully had carnal knowledge of a child under the age of 16 years when she was under his care. As to the other three counts, it was alleged that the child in question was under his care. The sentence in respect of the first conviction was 10 years, and as to the second, third and fourth, three years each.

The principal ground of attack on the convictions was that they were unsafe because the complainant contradicted herself in a number of important respects. Although the counts all alleged offences committed on or after 15 September 1990, when the complainant was 14 years of age, the evidence included allegations of misconduct towards her from the age of 6; the last allegation related to sexual intercourse on or about 27 January 1992, when the complainant was 15. There was thus a considerable span of years covered by the evidence, making mistakes and lapses of memory more likely, but the argument of Mr Long for the appellant concentrated on discrepancies in the complainant's evidence about recent events.

The complainant was born on 28 March 1976. Her mother, M, had two children mentioned in the evidence: the appellant and a son D, some 19 months younger than the complainant. After the complainant's birth (according to the appellant, late in 1976) the appellant and M began to live together and they did so until November 1990 when the complainant was 14 years of age and D 13. The complainant was regarded as the step-daughter of the appellant and called him "Dad"; the appellant says D is his son.

In 1989, while the appellant and M were still living together, the complainant was sent to board at a school in Townsville. She used to come home at school holidays and it was the Crown case that most of the incidents complained of occurred during those school holidays. It was common ground that relations between M and the appellant were very bad after they separated and, it appears, not necessarily very good before that. After the separation the appellant and M became engaged in legal proceedings against each other concerning property and custody. The case was therefore one in which M admitted animosity towards the appellant might have been argued to have induced her to promote the making of false accusations against the appellant. However, it was not suggested to M when she gave evidence that she had caused the complainant to accuse the appellant of sexual misconduct. Nor did M give any evidence directly in support of the Crown case, although she said she was worried about her children and had told the police that there "could be some sort of sexual abuse going on, but I wasn't really sure". She did not claim to have seen any manifestation of the appellant's alleged sexual interference with her daughter. That absence of any relevant observation by M was it appears relied on by the defence, as a factor tending to show that the complainant's story of sexual interference by the appellant, even at times when the appellant and complainant were living together, was untrue.

Evidence was led, as we have said, of incidents beginning when the complainant was only 6 years of age, well before the dates charged; that was not complained of, here or below, on behalf of the appellant. In outline, the complainant's story was that from about the age of 6, at the appellant's request, she performed acts of oral sex on him, that when she was only 10 or 11 he had anal intercourse with her; that while she was still in primary school he put his penis into her vagina a little, without having full intercourse; that during school holidays, from September 1990, he frequently had vaginal intercourse with her, in various places and that continued until Australia Day 1992.

It is proposed now to deal with the various criticisms of the Crown case.

The complainant did not mention the allegations of sexual misconduct when, according to the argument for the appellant, she would surely have done so if they were true. On 20 December 1990, after the date on which, according to the complainant sexual intercourse began, she was interviewed at home by a welfare officer and a policewoman. The policewoman, Const. Hamilton, gave evidence that on that occasion the complainant was asked "just about things that there were, you know, general things", but not directly asked if "anything" was happening. The constable said "she didn't disclose anything to us...". When cross-examined about this incident, the complainant gave evidence to the effect that the appellant "said if anything went wrong he told us to ring up straight away". The cross-examiner then proceeded on the basis that the complainant's evidence was that the appellant told her to "keep quiet and mind your own business or something". It does not appear that the complainant in fact gave evidence to that effect; however, she seemed to accept the suggestion and a subsequent suggestion that "he threatened you or told you not to say anything to the police before the first interview on 20 December 1990". In fact, before that question was asked the complainant had said nothing about any threat.

It is, with respect, difficult to extract much from this cross-examination other than the notion that the complainant was willing to acquiesce in questions which assumed, erroneously, that her previous evidence had a certain content. But the point made by Mr Long was that the complainant's evidence was inconsistent with that of Const. Hamilton, in that the former implied that the appellant could have known of the impending visit before it occurred, whereas the latter's evidence was inconsistent with that. All Const. Hamilton said on that subject was in the following evidence:

"And there was no forewarning of your trip, was there?-- No. We were only notified within days of flying up there.

And you - did you speak to the informant at that stage?-- No, I wasn't aware of who the informant was because Family Services don't disclose that information to us".

Constable Hamilton seems to have interpreted the question about forewarning as being related to her own knowledge of the impending trip. Neither her answer to that question, nor the subsequent one, discloses whether the complainant knew or could have known of the visit of Const. Hamilton and the welfare officer before it occurred, so as to have a conversation with the appellant about it. Although the evidence of failure to complain on that occasion has some weight, on the appellant's side, it does not appear to us to be of any great significance. There was no special reason for the jury to disbelieve the complainant's evidence that the appellant had warned her not to talk about his misconduct, and it appears that no question was asked of her by Const. Hamilton designed explicitly to elicit information on that subject.

The second incident relied on by Mr Long was a visit by a Family Court counsellor in December 1991. There was no evidence from the counsellor and one has to rely on the accuracy of the following question and answer, in cross-examination of the complainant:

"Well, at that time you described C as an understanding, kind, good person who cared. You could not think of anything bad about him. Is that right?-- Yes."

It has to be said that as noted above, the complainant appeared to be inclined to accept questions asked on the basis that she had previously made a statement to a certain effect, even if she had not. Further, it is unclear whether the whole of what counsel was putting purported to be a quotation rather than an attempted paraphrase of the complainant's words.

With that reservation, it appears to us that the jury should have accepted that on the occasion in question, towards the end of the period of sexual misconduct complained of, the complainant made or accepted laudatory statements about the appellant and made no criticism of him. Again, she explained her conduct by saying that "he told me to keep my mouth shut".

The third incident relied on by Mr Long was a visit by two police officers on 14 January 1992 - a fortnight before the final act of intercourse between the complainant and the appellant, on the Crown case. The evidence of one of the police officers, Const. Lavell, was such as to make one doubt the weight of this point. Constable Lavell agreed that when told of a complaint about the appellant sexually assaulting her the complainant shook her head from side to side vigorously and started crying. She agreed that the complainant said she did not want to go to Cairns and did not want to go for a medical examination. The constable was asked whether the complainant's appearance changed when the appellant came to the house and answered:

"Yes, she did. She became more upset and she looked very frightened to me".

Read as a whole, the evidence about that incident does not necessarily help damage the Crown case. Further, a factor detracting from the weight of the evidence of absence of complaint and denial of misconduct on that occasion was that not long afterwards, in February 1992, the complainant made allegations to the police of the kind to which she swore at the trial.

There was evidence from a school friend of the complainant that she was told by the complainant about August 1991 that the appellant had been sexually abusing her since she was 6. That evidence was let in, it appears, to rebut a suggestion that was said to have been put to the complainant that for specified reasons she had invented her complaint in February 1992. No complaint was made before us with respect to the admission of the school friend's evidence and if accepted it must have weakened whatever impact might have been made on the jury's mind by the evidence of the complainant's prolonged failure to raise her allegations on an official plane. It does not appear to us on the whole, that that failure gives much assistance to the appellant, on the question of whether the verdict was unsafe.

The complainant said that during her school holidays in September 1990 the appellant "would take my clothes off and have sexual intercourse with me". She said the first time that happened was "about when my Mum left". There was a difficulty about dates, as it appeared from M's evidence that she left the appellant on 8 November 1990. The complainant's evidence as to the date seems improbable. She claimed her recollection was that during her holidays intercourse would occur every second day. Specifically with respect to the September 1990 holidays she said of the appellant:

"He would tell me to go to his bedroom and he - he would take my clothes off and have sexual intercourse with me".

Even on the face of the complainant's evidence, there is at least some confusion, because as we have pointed out she dates the beginning of the sexual intercourse about the time when her mother left which was, it appears, two months after the September 1990 holidays. It seems impossible to accept that during those holidays, when her mother was still living at home, the appellant adopted the practice of requiring the complainant to go to his bedroom for the purpose of sexual intercourse.

It appears to us that regular sexual intercourse in the appellant's bedroom could hardly have begun in those school holidays, of September 1990, although it is possible that occasional intercourse then occurred; the complainant's version, as we have mentioned, was that at times the appellant had intercourse with her at places other than her home.

That is not the end of the Crown's difficulty about that aspect of the matter. The complainant's evidence at the committal was it appears, to the effect that the appellant had sexual intercourse with her before she menstruated; she said she first menstruated in 1989.

In our opinion there were contradictions in the Crown case on the question of when sexual intercourse first occurred, of such a kind as to require careful consideration by any reasonable jury. It should be added that some other, lesser, matters were argued by Mr Long to throw doubt on the consistency of the complainant. It was said that one would have expected her mother, or her young brother, to have noticed something irregular happening. But this was a matter for the jury, rather than raising any inconsistency; it would have been difficult, but not impossible for the appellant often to interfere with the complainant sexually, before the couple separated, without M noticing. Some reliance was also placed on alleged inconsistencies in the complainant's evidence as to the frequency with which the appellant ejaculated inside her vagina; but the latter point is not of sufficient weight to require a discussion of the evidence about it.

The medical evidence appears to have been consistent with the Crown case. Some attempt was made to suggest the complainant had a relationship with a schoolboy at relevant times, but the evidence on that subject, read as a whole, did not appear to assist the appellant. The doctor said that when he examined the complainant (then aged 15) her vaginal entrance was dilated:

"Well, it was what you might describe as flaccid and instead of the muscles being tight at the entrance they were - well, the tissues were dilated and more lax than they would have been in the natural state."

The hymen was torn in a way consistent with being caused by intercourse; the tear was not recent. The doctor recorded no evidence of anal penetration; the complainant gave evidence of some degree of such penetration when she was 10 or 11. There was no evidence to the effect that such penetration would necessarily have produced changes in the anus observable some years later.

Further, there was evidence from I who worked for the appellant in his shop about Christmas 1990. It is unnecessary to explain I's story in full detail; it is enough to say that she visited the appellant's house to get eggs for the appellant's shop, in which she worked, and saw girl's underwear and clothes scattered on the floor of the main bedroom. That was the bedroom in which the appellant slept. There was also girl's clothing in another bedroom and I set up three matches in a position in which she thought they would be disturbed if anyone slept in the bed. Three days later she came back and the matches were in the same position as she had left them.

This reconciled, speaking generally, with evidence of the complainant as to sexual activities about that time. It appears that I's observations were the reason for the visit on 20 December 1990 by a welfare officer and the policewoman, referred to above.

If I's evidence was accepted it was very difficult, if not impossible, to reconcile it with the appellant's account of events. The appellant's evidence involved the denial of any wrongdoing at all and he also gave evidence inconsistent with I's alleged observations.

A complaint was made of the judge's directions with respect to corroboration. Mr Long said that the judge should have told the jury to be very careful about drawing an inference from I's evidence, because it was imprecise. It is true that I did not give a detailed description of the clothes she observed, but in our opinion that was of no real consequence. The question about I was whether to accept or reject her. If she were accepted then the jury could hardly avoid the conclusion that the evidence about her two visits supported the Crown case; no innocent explanation of her observations was suggested.

There is also criticism of a passage in which the judge referred to a Crown submission to the effect that there were glaring inconsistencies in the appellant's evidence, which might lead the jury to conclude that he had told some lies - an example being given - which might then be taken into account in deciding whether or not the appellant had lied about the critical issue.

That passage was preceded by an exhortation to treat the appellant as simply one other witness. Mr Long said that any lies told by the appellant were not relied on, and could not be relied on, as consciousness of guilt. Mr Callaghan, for the respondent, said that the judge's remark about lies should be read in its context; immediately after referring to the Crown's submission, the judge reminded the jury of defence submissions to similar effect with respect to the complainant. It was also pointed out for the respondent that no redirection was sought concerning that passage.

In our opinion, reading the discussion as a whole, it amounted to this, that the Crown had argued that there were inconsistencies in the appellant's evidence, that the defence had made a similar argument about the complainant's evidence and that each side relied on those alleged inconsistencies as affecting the witness's credit on the crucial issues. Mr Long complained that the judge should have directed the jury not to find the appellant to be guilty simply because they did not believe him.

The passage to which we have referred occurred immediately before the judge reminded the jury that the critical question was whether or not they were satisfied beyond reasonable doubt of the truth of the complainant's story. After more remarks about that the judge said in effect that if the jury did not know who to believe "you might think that the only verdict open to you is one of not guilty". In our opinion the jury could not have been left with the impression that they should convict if they did not find the appellant to be a credible witness.

Another criticism of the judge's directions related to a passage dealing with the question of a unanimous verdict. During the jury's consideration of the case they returned and told the judge, among other things, that they were having difficulty reaching agreement. A part of the evidence was read to them, at the foreman's request. On the subject of unanimity, the judge said in effect that the trial involved considerable expense and "the time has not yet come where I can even start to consider the prospects of the absence of agreement". The judge told the jury to consider the matter further and made arrangements for them to send notification, through the bailiff, that they might be delayed. The judge said that "...I will give you another hour to consider that evidence to discuss that as you wish, give you time to make further efforts to reach a verdict and then give some consideration as to where we go from there."

The judge, having been told the jury was having difficulty reaching agreement, gave them in our view, some encouragement to try to agree. The question is whether he did so in a proper way, and that necessitates some reference to authority. In Challinger [1989] 2 Qd.R. 352, a majority of the Court of Criminal Appeal, (Kelly SPJ and Shepherdson J) held a direction with respect to this subject, that is unanimity, to be defective. There, being told by the foreman that the jury had "run into a brick wall", the judge gave a direction based on the English decision in Walhein (1952) 36 Cr.App.R. 167, but omitted the last sentence of a direction in that case: "If you disagree in your verdict in relation to one or other of these men you must say so". Shepherdson J said that he was:

"...left with the view that...the jury might well have relaxed the requirement of unanimity because of the unfortunate omission of words to the effect of the final sentence from the Walhein direction".

Kelly SPJ agreed, but Macrossan CJ, dissenting, was of opinion that:

"...there is no single formula which must inflexibly be used...We are not required in the present case to decide how much of a formula previously approved in one case can be omitted in another without invalidating the use of the formula".

With respect, while it is unnecessary to decide in this case whether the precise language used by the trial judge in Challinger was adequate, the expression of view in the reasons of the dissenting judge has weight.

In Brown [1990] 1 Qd.R. 370 the judge's remarks about unanimity were disapproved. They included statements to the effect that, while each juror had taken an oath to return a true verdict and while "that is your individual responsibility to your own conscience, it is a responsibility that you exercise within the group of the 12 of you". There followed exhortation not too rigidly to adhere to a view formed at an early stage, but to listen to the other members of the jury's views. The direction continued with a fairly strong suggestion that a failure to reach a verdict would be quite undesirable. It was held that there should have been a direction to the effect that a juror should not abandon a view which he or she could not honestly change.

Particularly if the case seems to the judge to be one not requiring lengthy deliberation, for example because of the judge's view of the merits, there may be a temptation for the judge to use language which could possibly induce one or more members of the jury to vote less than honestly - to support a verdict which the juror believes not to be justified by the evidence. But as the law stands there is, in our opinion, no objection to a judge's encouraging a jury, using moderate language, to try to reach a common view and pointing to the disadvantages of failing to do so. Mr Long's objection to what the judge did here was not so much to what was said as to what was not. The submission was to the effect that, albeit the judge had earlier told the jury that there were no majority verdicts and that "before a final verdict may be given you must each reach a conclusion and your individual conclusions must be unanimous", it was necessary to repeat that, or say something to the same effect, when referring to the same subject during the jury's deliberations.

Our opinion, considering what the judge said against the background of his Honour's earlier directions, is that the statement about unanimity which was made did not go beyond the bounds of propriety. There was a mild rather than oppressive degree of encouragement given; the absence of any "balancing statement" to the effect that no member of the jury should ultimately support a view which he or she did not truly accept did not make the direction an unlawful one.

It is necessary to return to the subject of the safety of the verdict. Although the complainant's evidence was undoubtedly flawed and in some respects inconsistent, principally as to the date of commencement of sexual intercourse, we have come to the conclusion that the Crown case as a whole was one on which a verdict of guilty might properly be come to. A perusal of the record gives the impression of a version of events of a kind unlikely to be the product of suggestion or coaching by others. As we have pointed out, the cross-examination of the complainant's mother did not include an attempt to show that she had been the origin of the complainant's accusations. It appeared that, if the complainant's story was in substance false it was likely to have been devised by the complainant herself and that she must have enlisted the help of I, whose motive for lying about the matter would seem to be unclear. Further, the complainant must have either persuaded her school mate to fabricate a story about her complaint, made in 1991, or else made that complaint falsely, as preparation for taking the matter to the police in the following year. On these points, the jury might well have thought that the probabilities were against the appellant. But in the end the question is whether the record as a whole, taking into account the inconsistencies in the complainant's story and such help as is afforded by the lateness of her complaint to the police, constitutes a defensible basis for the jury's verdict. The answer to that must, in our view, be in the affirmative. We have already given our reasons for concluding that the arguments advanced concerning the judge's directions to the jury should be rejected. The result is that the appeal against conviction must be dismissed.

We have mentioned that the sentence imposed on count 1 was 10 years imprisonment, and 3 years in respect of each of the other counts.

Mr Callaghan, for the respondent, informed us that he was not prepared to support the view that the 10 year sentence was within the proper range; he submitted that up to 8 years imprisonment could have been justified. The appellant has no previous convictions and is a middle-aged man who migrated to this country. For 30 years, he had worked hard and built up a significant business.

The learned primary judge was faced with the difficulty that the offences of which the appellant was convicted were committed in a period from 15 September 1990 to 28 January 1992; at the earlier date the appellant was about 14½ and at the later nearly 16. However, the evidence submitted contained allegations of offences when the complainant was much younger: specifically, oral intercourse from the age of 6, and some degree of anal intercourse when she was only 10 or 11; these were, obviously, very serious offences. The way in which the judge dealt with them was as follows:

"It is my view that in all likelihood [the jury] substantially accepted the truth of [the complainant's] evidence so far as it related to the early part of the relationship between the two of you and other incidents of a sexual nature between the two of you, although not strictly part of the offences alleged against you...I make it clear that I sentence you only for the offences of which you have been convicted."

It is not absolutely clear what effect the judge's consideration of the earlier offences, i.e. those before 15 September 1990, had upon the sentence. The fact that his Honour troubled to state his view that the jury in all likelihood accepted the complainant's evidence about the earlier offences suggests that his Honour took them into account in some sense; doing so could hardly have favoured the appellant. In Cooksley [1982] Qd.R. 405 evidence of that kind was treated as having been properly received as showing the "real relationship between the accused and the complainant" (418). That case and others were considered in Jobson [1989] 2 Qd.R. 464, an incest case where there was a plea of guilty. Ryan J, with whom Connolly J agreed, was of opinion that the judge was entitled to take into account "the circumstances in which the offence was committed in order to determine what is an appropriate sentence" and it appears that his Honour was of the view that other offences similar to those of which he was convicted could be considered for this purpose (473). However, his Honour said:

"It would be wrong, after thus ascertaining those circumstances, to impose a higher sentence than was warranted for the offence charged, since that would amount to the imposition of a greater sentence by reason of the commission of other offences than the one charged".

"The borderlines of such evidence, and its basis, are not authoritatively laid out...It has never been suggested that a sentence should reflect the criminality of prior acts...The implications of a sexual act are always more intelligible in the light of the sexual relationship of the persons concerned. More importantly, it will commonly occur that blame for performance of a sexual act cannot satisfactorily be cast unless the history of the sexual relationship of those two persons is properly understood. On this basis such evidence has a distinct but limited relevance upon sentence..." (467)

In Reiner (1974) 8 S.A.S.R. 102, Bray CJ approached the same problem in a way rather similar, in our opinion, to that adopted in this State. Here, the principal offence was that of maintaining an unlawful sexual relationship between the dates mentioned - 15 September 1990 and 28 January 1992. In theory the earlier sexual acts might have been relevant as putting those in context, e.g. by showing that the complainant did nothing to incite or encourage the appellant to have sexual intercourse with her, but that he abused his authority over her to cause her to submit. But there was no suggestion in the case that the complainant had in any real sense consented to what was done to her; the issue was whether or not intercourse occurred.

In those circumstances, it does not appear to us that the evidence of the earlier acts, going back to the age of 6 years could, according to any proper principle, have had relevance to the sentencing process. It was a case in which, considered as background, it threw no light upon the seriousness of the sexual relationship charged, beginning when the girl was 14. It was of course a matter for the Crown whether to charge offences occurring over the previous 8 years; it did not do so and, in the circumstances of the present case, the evidence of those earlier offences is of no significant help in determining the proper sentence for the later offences.

In G (Court of Appeal, unreported, 15 July 1992) a sentence of 7 years imprisonment was imposed for a conviction under the same section as that which founded the first count here: s. 229B of the Code. There, the applicant for leave to appeal against sentence had pleaded guilty. G was the complainant's father and she was 15 years of age when the applicant had intercourse with her, on four occasions. There was some evidence of remorse. Taking into account the plea of guilty the Court reduced the sentence to 4 years and 6 months. Comparing that with the present case the complainant here was younger when the relationship began; it continued over a longer period, there were more acts of intercourse; there was no plea of guilty; on the other hand, the applicant here is not the complainant's father.

We were referred to some earlier cases, but are inclined to think they may be of limited assistance, since the Court's attitude towards offences of this kind has perhaps become stricter recently: see for example H, Court of Appeal, 23 June 1993, unreported, at p. 9; the reasons there given contain a useful table at p. 7.

It is necessary to keep in mind that the earlier and very reprehensible conduct alleged, over a period of years before the offences charged, cannot be punished under the guise of imposing sentence for the offences charged. Considering the latter in isolation, as in the circumstances of the present case one must do, it is our opinion that the application for leave to appeal against sentence should be granted, the appeal allowed and the sentence on count 1 reduced to 6 years. No complaint is made of the other sentences.

Appeal against conviction dismissed.
Application for leave to appeal against sentence granted.
Appeal allowed to the extent of reducing the sentence on count 1 to 6 years; otherwise sentences confirmed.

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Judgment (59 paragraphs)