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[2000] QCA 385
Court of Appeal (Qld)
2000-09-22
McPherson and Thomas JJA, Ambrose JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Original judgment source is linked above.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - no necessary inconsistencies as the circumstances of the alleged offences were different
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - STRIKING OUT AND WARNING THE JURY TO DISREGARD EVIDENCE - improper question by Crown Prosecutor - s 15(2)(a) Evidence Act
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - improper questioning by Crown Prosecutor whether could be corrected by direction of Trial Judge
CRIMINAL LAW - EVIDENCE - CONFESSION AND ADMISSIONS - COMPLAINTS - FIRST REASONABLE OPPORTUNITY
CRIMINAL LAW - EVIDENCE - CONFESSION AND ADMISSIONS - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT - whether complaint was of a sexual act
CRIMINAL LAW - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDER - co-offender convicted of more counts but sentenced to lesser term of imprisonment
Drugs Misuse Act 1986 (Qld)
Chidiac & Asfour v R [1991] HCA 4; (1991) 171 CLR 432, considered
Lowe v R [1984] HCA 46; (1984) 154 CLR 606, considered
M v R [1994] HCA 63; (1994) 181 CLR 487, considered
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, discussed
R v Campbell [1933] St R Qd 123, discussed
R v Ireland [1970] HCA 21; (1970) 126 CLR 321, discussed
R v Lovett [1986] 1 Qd R 52, discussed
R v Stoddart (1909) 2 Cr App R 217, discussed
R v Strassberger & Strassberger (CA Nos 456 & 457 of 1998; [1999] QCA 80), discussed
Director of Public Prosecutions (Queensland) for respondent
**[1] McPHERSON JA: I have read and agree with the reasons of Ambrose J. The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be allowed and the sentence varied in the terms proposed by Ambrose J.
[2] THOMAS JA: I have the advantage of having read the reasons of Ambrose J with whose conclusions I am generally in agreement.
1. There is no necessary inconsistency between the jury's verdicts. They are rationally explicable consistently with the evidence.
2. The questions by the Crown prosecutor suggesting impropriety with both girls were in breach of the requirements of s 15(2) of the Evidence Act 1977. Any potential damage from the error was immediately and appropriately dealt with by his Honour, and in the absence of any complaint by defence counsel or request for further action by his Honour, I do not think it can be said that any miscarriage of justice resulted from the incident. On this point the proviso should, if necessary, be applied.
3. No error was involved in the admission of the fresh complaint evidence, or in his Honour's directions in respect of such evidence. As is often the case with evidence of this kind, competing submissions were open as to whether the complaint was in the circumstances made at the first reasonable opportunity. Whether in the end that evidence supported or diminished the credibility of the complainant was entirely a matter for the jury.
4. There was sufficient particularisation of the Crown case concerning the respective acts of W and the appellant on which the Crown relied. Counsel for the appellant submitted that the learned trial judge failed to identify sufficiently to the jury the respective acts by those persons which constituted count 2 and that he failed to identify to the jury the various possible bases of guilt either as the person who committed the act or as an aider. During trial all necessary particulars were supplied to the defence including:**
"the accused, having taken his hands, put them on top of W's hands, guided them on to the complainant's breasts, fondling them and then guided them elsewhere on her body.
Count 2 is an allegation that W is the principal offender and that C is aiding her in this fondling exercise."
**The evidence of the complainant in relation to this count was clearly stated to the jury in the course of the summing up. In such a situation it seems to me that the appellant would be liable to conviction under s 7(1)(a) as the person who actually did the act as well as under s 7(1)(c) as a person who aids another person in committing the offence. It was not necessary to complicate the matter by describing all the various possibilities open under s 7, or to describe all the various routes to conviction. It is impossible to see how the defence could have been assisted by such directions, and it is not surprising that such directions were not sought at trial.
5. Neither individually nor collectively do these points give any reason to think that the convictions were unsafe or unsatisfactory.
[4] I agree with the reasons of Ambrose J for concluding that parity is lacking in the sentences imposed respectively on W and the appellant. In all the circumstances the imposition of a greater term upon the appellant than upon W is such as to give rise to a legitimate sense of grievance on the part of the appellant (Lowe v R [1984] HCA 46; (1984) 154 CLR 606; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 301). I agree with the orders proposed by Ambrose J.
[5] AMBROSE J: In April 2000 the appellant was convicted upon three (3) counts of indecent dealing with a child under the age of 16 years with circumstances of aggravation - either that the child was under his care or was his lineal descendant. His co-offender, W was also convicted upon those three counts; as well she was convicted upon three other counts of indecent dealing with a circumstance of aggravation.
[6] In respect of the first count the appellant was sentenced to imprisonment for 18 months and in respect of the other two counts imprisonment for 3 years was imposed, all sentences to be served concurrently.
[7] He appeals against conviction upon those three counts on the ground that in the circumstances the convictions were unsafe and unsatisfactory and dangerous and ought to be set aside pursuant to s 668E of the Criminal Code.
[8] He also seeks leave to appeal against the sentences imposed not on the ground that the sentences were outside the range appropriate for the offences of which he was convicted but on the ground that having regard to sentences imposed on his co-offender in respect of twice as many offences of the same kind parity requires that his concurrent sentences be reduced at least to the level of the sentences imposed upon his co-offender - his de facto wife.
[9] I will state briefly the factual background and matters relevant to both the appellant's conviction and sentences.
[10] The appellant and his de facto wife, W, had prior to May 1997 lived together in or near Maryborough. They had living with them two children of their union then aged about four years and six years.
[11] The appellant had two daughters of a previous marriage whom he had not seen since he separated from their mother 15 or 16 years prior to the elder of those daughters, T, making contact with him in May 1997. She wished to establish a relationship with her natural father and travelled to Maryborough where she stayed for a week in an effort to do this. Eventually she came to reside permanently with the appellant and his de facto wife in August 1997.
[12] At the time she joined the appellant and W and their children, T, although just under 16 years of age was experienced in sexual activity. She made it plain that she was of lesbian orientation.
[13] During the couple of months prior to her 16th birthday, she and W engaged in various forms of consensual sexual activity. It is unnecessary to analyse that activity. It clearly amounted to indecent dealing with T by W.
[14] In about August 1998 the appellant's second daughter, the complainant, made contact with the appellant and arrangements were made for her also to join the appellant and W in Maryborough. It was arranged that the appellant and the complainant's elder sister, T would together travel to Leura in New South Wales and bring the complainant back to Maryborough to live with the appellant, W, their two young children and T.
[15] It emerged in the evidence that the appellant, having collected the complainant, drove her to see his mother some distance from Leura. The evidence of the girls was that from the outset they developed a sexual relationship with each other - commencing while in the back of the car being driven by the appellant from Leura to his mother's residence and continuing on for a night or two in a bedroom in his mother's residence.
[16] It emerged clearly in the evidence that each of the girls was of lesbian orientation and it would seem looking at the evidence experienced in engaging in sexual activity with other females of similar orientation.
[17] In any event the appellant eventually brought both girls to his house in Maryborough.
[18] It emerges from the evidence that thereafter the girls engaged in various sexual activities with each other openly expressing their delight and satisfaction with them.
[19] The complainant also engaged in sexual activities with W and to some extent with the appellant - although it would seem that those activities were to a lesser degree and of lesser number than the activities in which she engaged with W. Upon the evidence it would seem that on occasions the complainant was both aggressive and persistent with her sexual advances to W.
[20] Eventually in about November 1997 the complainant made a complaint to her mother. Thereafter the mother related the complainant's complaint to the police and then took both the complainant and T back to New South Wales with her. Thereafter long statements were apparently taken from both girls by police officers in New South Wales. Then copies of those statements were sent to police officers in Maryborough and W was interviewed on the content of those statements. That interview was video-recorded. It was tendered upon the trial.
[21] Eventually it appears that proceedings were commenced against both the appellant and W with respect to their alleged sexual activities with T. W pleaded guilty to three counts of indecent dealing based (I presume) upon the consensual lesbian activities in which she and T engaged over the two month period that T lived with the appellant and W preceding her 16th birthday. The appellant was also charged apparently with participating in or being involved in some way with indecent dealing with his daughter T. He pleaded not guilty and was acquitted of those charges.
[22] W, who pleaded guilty to three charges of indecently dealing with T, was sentenced on 2 March 2000 to imprisonment in respect of those charges for a period of 18 months with a recommendation for parole after serving 2 months.
[23] Proceedings were then instituted against both the appellant and W upon eight counts of indecent dealing with circumstances of aggravation in respect of the appellant's younger daughter, the complainant. The charges may be stated briefly as follows -
2. Counts 2, 3, 4 and 5 against both the appellant and W jointly;
[24] The appellant gave evidence denying guilt and contradicting the inculpatory evidence of both the complainant and T. W did not give or call evidence.
[25] The jury returned verdicts of guilty upon counts 1, 6 and 7.
[26] A verdict of acquittal was directed on count 3.
[27] There was a verdict of not guilty returned against the appellant on count 8.
[28] There were verdicts of guilty against the appellant and W on counts 2, 4 and 5.
[29] Upon appeal it was contended for the appellant that the verdicts against him on counts 2, 4 and 5 were unsafe and unsatisfactory or dangerous on the following grounds:-
The evidence on counts 2, 4 and 5 was essentially of the same character as the evidence on count 8 (upon which the appellant was acquitted) in that his conviction on counts 2, 4 and 5 required that the jury accept as reliable witnesses the complainant and her sister. It was contended that had those witnesses been accepted as reliable then the acquittal of the appellant on count 8 is inexplicable. It must be that the jury had reservations as to the truthfulness - reliability of the complainant and T in respect of the evidence given on that count and consequently ought also to have had reservations as to their truthfulness - reliability with respect to the evidence on the other three counts upon which they convicted the appellant.
2. Improper Cross-examination in breach of s 15(2) of The Evidence Act
In the course of cross-examining the appellant who gave evidence essentially denying that there was any truth in any of the allegations made by either the complainant or his daughter, T, the Crown Prosecutor suggested to him that he had provided marijuana to both daughters to assist in their seduction and that both he and W and particularly the appellant thought that any inhibitions they may have had to engaging in sexual activities with the appellant and W, who knew that they were of lesbian disposition, might be lessened by the effect of marijuana and he took the opportunity to overcome such inhibitions by encouraging them to use marijuana.
The objection taken on behalf of the appellant was not to any suggestion that he may have used marijuana only to overcome the inhibitions of the complainant (the only daughter the subject of the charges against him) but to the question asked of him whether he had adopted this course of supplying each girl with marijuana with a view to seducing her.
The point was made that prior to this cross-examination of course the appellant had been acquitted of involvement in any indecent dealing with his daughter, T.
Evidence of "fresh complaint" was wrongly admitted - because in the circumstances it could not be said to be "fresh" and further the evidence admitted as a complaint was elicited by the complainant's mother asking her daughter over the telephone a leading question -**
to which according to the complainant she replied that she was. The only evidence to this effect was given by the mother of the complainant. The complainant herself gave evidence to the effect that she had made a telephone call to her mother and had "disclosed to her that there was bad things happening at the house". It was not sought by the Crown Prosecutor to have the complainant elaborate on what if anything concerning those "bad things" she may have said to her mother. The complainant's evidence of course did not purport to record in direct speech anything she said to her mother over the telephone and did not purport even to relate the substance of what she said which might be characterised as a fresh or recent complaint of indecent dealing with her by the appellant. She was of course upon her evidence also at that time being indecently dealt with by both her sister, T and W.
**4. Failure to Sufficiently Direct on Facts with Respect to s 7(1) of the Code
The failure of the learned Trial Judge in his summing up to analyse in more detail the evidence as to what precisely were the appellant's acts which could support a conviction on counts 2, 4 and 5. It was essentially the Crown case that with respect to those counts each of W and the appellant was involved with the other in activities amounting to an indecent dealing with the complainant. It was contended however that in some respects the jury may have regarded either the appellant or W or both as coming within one of the four categories of person contemplated by s 7(1)(a), (b), (c) and (d) of the Criminal Code.
It was contended that it was insufficient for the trial judge to direct the jury merely as to the effect of s 7(1) of the Code which constitutes each category of persons under 1(a), (b), (c) and (d) principal offenders and merely to leave it to the jury to look at the evidence given in respect of each of the three counts of which both the appellant and W were convicted and then to determine whether upon that evidence they were satisfied that the appellant's acts brought him in within any one or more than one of the four categories of person dealt with under s 7(1) of the Code.
[30] As I understood the argument for the appellant, while considered singly each of the four matters of complaint might not in itself justify setting aside the convictions and perhaps directing a new trial, nevertheless when considered together the conduct of the trial and the summing up were so unsatisfactory as to make it unsafe to allow these convictions to stand.
[31] Whether a verdict is unsafe or unsatisfactory is a question of fact which must be decided by an appellate court upon its own independent assessment of the evidence. The court must determine whether upon the evidence properly before the jury it was open to it to be satisfied beyond reasonable doubt that the accused person was guilty. In M v R [1994] HCA 63; (1994) 181 CLR 487 it was held that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought to have experienced. Of course in a case where the reliability of witnesses is critical to support a verdict of guilty an appellate court will be deprived of the advantage which the jury had in assessing that reliability. There may be some cases where upon the record it is clear that there are such serious inconsistencies in the evidence of witnesses whose reliability is essential to support a conviction, that an appellate court will be persuaded that to allow a verdict to stand based upon the acceptance of such evidence would indeed be unsafe. In this respect I refer only to Chidiac & Asfour v R [1991] HCA 4; (1991) 171 CLR 432.
[32] It will seldom be the case if no objection is taken to the admissibility of evidence or where Counsel elects perhaps for tactical reasons not to apply to have the jury discharged if in the course of a trial something occurs which might arguably justify its discharge but perhaps for tactical reasons, elects to proceed with the trial relying upon directions of the trial judge to overcome any perceived prejudice that might result from that event, that such matters upon appeal may then be relied upon to upset a verdict on the ground that it is unsafe and unsatisfactory.
[33] Again where in the course of a summing up a trial judge deals with matters of fact or law in a manner exhibiting no clear error or undue emphasis upon or disregard of matters thought important to the defence case, and no application is made on behalf of an accused person for specific redirections designed more clearly to bring to the attention of the jury matters relevant to their determination of facts in issue, failure by the trial judge to give directions of the kind which may arguably have been obtained by way of redirection, will seldom result in a conclusion that the resulting verdict is unsafe and unsatisfactory by reason of failure to make such application.
[34] This court will be loath to conclude that a guilty verdict is unsafe and unsatisfactory on the basis only, or mainly, that in the course of the trial steps could have been taken by Counsel for the accused, but were not, which may have led either to a mis-trial or to a different body of evidence being adduced which may have resulted in slightly different directions being given upon which the jury would consider its verdict.
[35] There is no suggestion in this case that Counsel appearing for the appellant was not both experienced and competent. No complaint is made on behalf of the appellant as to the manner in which his counsel conducted the trial or as to the adversarial strategy he adopted in the conduct of his case.
[36] A good deal of evidence was admitted which in my view had but slight relevance to the issues upon the appellant's trial - particularly much of the evidence of relating to T's sexual activities with W and with her sister, the complainant. However, Counsel for the appellant and W may have sought to achieve some forensic advantage with the jury by highlighting the fact that both T and the complainant were sexually active before they invited themselves to join the appellant and W and both (albeit under 16 years of age at material times) had been willing if indeed not aggressive, participants in the various sexual activities in which they engaged with each other and with W. Indeed this evidence was led initially by the Crown without any objection from Counsel for the appellant and W who then cross-examined in respect of it.
[37] Their consent to sexual activities with the appellant and W was of course irrelevant upon the charges of indecent dealing except as background to explain the circumstances in which the offences were committed. Their consent to sexual activities with each other seems irrelevant on any basis. It does not follow however that in the circumstances to which I have referred Counsel for the appellant and W may not have sought to derive some advantage by appealing to the sympathy of the jury for their clients who had been persuaded by the appellant's daughters who were both practicing lesbians to receive them into the family home with the consequences which ensued.
[38] It will sometimes be the case that experience and adversial technique will lead to objections not being taken or redirections not being sought in the circumstances of a particular trial. It will be seldom that a verdict in such a case will be held to amount to a miscarriage of justice under s 668E of the Criminal Code on the basis that "an aggregate of faults none of which if it were the only fault would afford a justification for making an order for a new trial may properly lead to the conclusion that the trial as a whole had miscarried so that there should be an order for a new trial" (R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331 per Barwick CJ). It is not the object of that section to transform a number of minor irregularities none of which considered alone having regard to the way the case was conducted for the defence, could justify setting aside a verdict, into an amalgam of discontent sufficient to justify setting that verdict aside as a "miscarriage of justice".
[39] These principles are amply supported by observations in the Court of Criminal Appeal in R v Campbell [1933] St R Qd 123 and R v Lovett [1986] 1 Qd R 52 adopting those in R v Stoddart (1909) 2 Cr App R 217 at p246 -**
"To quote Lord Esher's words in Abrath v The North-Eastern Rail Co (above, p233):-"It is no misdirection not to tell the jury everything which might have been told them. Again, there is no misdirection unless the judge has told them something wrong or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood." Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument."
**[40] I will deal with each of the four grounds debated before this court said to render the appellant's conviction on counts 2, 4 and 5 unsafe and unsatisfactory.
[41] In Mackenzie v R (1996) 190 CLR 348 at 366 it was observed -**
"3. Where as is ordinarily the case the inconsistency arises in jury verdicts upon different counts of the originating process in a criminal trial the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
'(The appellant) must satisfy the court that the two verdicts cannot stand together thereby meaning that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion and once one assumes that they are an unreasonable jury or they could not have reasonably come to the conclusion then the convictions cannot stand.'
**[42] In R v Strassberger & Strassberger (CA No 456 and 457 of 1998, 23 March 1999, (unreported, BC 9901015)) this court held that in determining whether verdicts can "rationally" stand together the test was a very wide one which recognises that sometimes a jury's innate sense of fairness and justice may lead to verdicts which are not strictly reconcilable on legal principles.
[43] Stated baldly it is the appellant's contention that because the jury had a reasonable doubt as to his guilt on count 8 they should therefore have had a reasonable doubt as to his guilt on counts 2, 4 and 5 because on all counts the direct evidence as to his guilt came from the same two Crown witnesses.
[44] The jury were directed that they must consider the evidence called to establish each of the counts separately and that they might convict of some and acquit of others.
[45] There were certain inconsistencies between the evidence of the complainant and T concerning the length of time the complainant absented herself from the tent in which the offence in count 8 was alleged to have been committed. There was also some question as to the absence of light in the tent and consequent difficulty with respect to visibility etc.
[46] In his summing up the learned trial judge dealt very briefly indeed with the evidence against the appellant on this count. There is no record of submissions made by counsel for the appellant in respect of the offence the subject of this count and it is fruitless to speculate on matters that occurred in the course of evidence which may have been canvassed in addresses.
[47] At the end of the day I am unpersuaded that there is any necessary inconsistency in the verdicts upon counts 2, 4 and 5 and that upon count 8. The circumstances of the alleged offences were different. The only unifying aspect of the case was that in respect of each of the offences the only direct evidence implicating the appellant was given by T and the complainant. Their reliability as well as their honesty was critical to the proof of the Crown case in respect of each of the offences. I am unpersuaded that because the jury were not satisfied beyond reasonable doubt of the appellant's guilt on count 8, the convictions on counts 2, 4 and 5 are necessarily explicable on the ground only that they found the evidence of T and the complainant on count 8 dishonest rather than unpersuasive in the circumstances. Slight discrepancies in the evidence of the girls and possible reservations about visibility within the tent may explain them giving the benefit of any doubt they had with respect to count 8 to the appellant while the evidence they accepted involving both the appellant and W on counts 2, 4 and 5 may have left them entertaining no reasonable doubt as to the reliability of the direct evidence of the complainant supported by her sister on those counts.
2. Improper Cross-examination in Breach of s 15(2) of The Evidence Act
[48] As I have indicated the Crown led evidence from both the complainant and T that each smoked cannabis and that each had engaged in lesbian activities with the other and W prior to the commission of the offences alleged against the appellant. No objection was taken to this course and indeed counsel for the appellant cross-examined the complainant and indeed T in respect of these matters.
[49] In the course of cross-examination of the appellant it was elicited from him that at the time the complainant arrived at the appellant's house she was smoking a couple of grams of marijuana per night. In the course of that cross-examination he was cross-examined about W inhaling smoke from marijuana ignited in a utensil and then in the course of kissing T exhaling it into her mouth. Eventually this interchange took place in cross-examination -**
"Q: I'm suggesting to you that it was used as a process of seduction of these girls.
Q: To drop their guard, to make - to get away any inhibitions that they might have and that you and W - this is directed specifically at you had your way with them as they say.
Q: I suggest to you that when you found out that they were lesbian you took this opportunity --"
Then there was an objection on behalf of the appellant the basis of which was that it was improper to suggest in the complainant's case that the appellant had used marijuana "as a process of seduction of" both the complainant and T.
**[50] The Crown Prosecutor intimated that it was as a matter of oversight that he had mentioned T and that he would henceforth confine his cross-examination to the appellant's involvement only with the complainant.
[51] The learned trial judge pointed out to the jury -**
"We're not here to deal with any matters between this accused and T. We're here solely dealing with matters alleged between this accused and the complainant and I ruled in your absence that that was an improper question."
The Crown Prosecutor then repeated his question in these terms -
"Q: What I meant to put to you was that in relation to the complainant - I should say both girls were smoking marijuana.
Q: Is that right? In relation to the complainant I'm suggesting to you that there was this introduction of marijuana by you and that its purpose was designed to drop her guard so that you could have or W could have sexual relations with her.
**[52] The first matter to observe is that at the time the complainant was living with the appellant, W and T, T was over the age of 16. Consequently at that time it would not have been a criminal offence for either the appellant or W to deal with her sexually - whether or not her inhibitions had been lowered by her consumption of cannabis.
[53] On the other hand of course the supply of cannabis to any person in the circumstances by the appellant or W was an offence against the Drugs Misuse Act. Section 15(2) forbade the cross-examination of the appellant by asking any question tending to show that he had committed "any offence other than that with which he was charged before the jury" .... unless -
1. The question was directed to prove a matter which was logically relevant to prove the appellant guilty of the offence with which he was charged with respect to the complainant or;
2. That the appellant by his counsel conducted the defence in such a way as to involve imputations on the character of the complainant and T.
[54] These matters however were never raised before the learned trial judge by counsel for the appellant at the time objection was taken. The objection was taken apparently on the assumption that it was permissible for the prosecution to cross-examine the appellant with a view to showing that he had supplied the complainant with cannabis to effect more readily her sexual seduction and doubtless it was arguable that under s 15(2)(a) the cross-examination was admissible for this purpose.
[55] It was not contended on behalf of the Crown that indeed the conduct of the defence on behalf of the appellant had involved casting imputations on the complainant and T both with respect to their habit of smoking cannabis (which of course also involved inevitably offences of possession etc under the Drugs Misuse Act) and as well their lesbian orientations and activities which also of course involved the commission of indecent dealings by T with the complainant.
[56] None of these matters however were canvassed and the whole episode was treated by counsel and the trial judge alike as an improper question put by oversight really of the Crown Prosecutor.
[57] In the course of his summing up the learned trial judge advised the jury that reference to the consumption of marijuana and to the lesbian behaviour between the complainant and T were only background matters to assist the jury to consider the matters in issue upon the appellant's trial - which was really whether he and W had together indecently dealt with the complainant - albeit perhaps with her consent or even upon her instigation.
[58] The evidence showed that indeed it was the appellant who if not growing the marijuana used by the complainant and T was at least harvesting that material from where it grew some distance from the family home. The evidence was that initially in any event T was affected by marijuana when W in fact exhaled marijuana fumes into T's mouth.
[59] In my view the question put in cross-examination to the appellant ought not to have been put; although the oversight of the prosecutor in referring to the use of marijuana to seduce "the girls" rather than just with a view to seducing the complainant may be understandable having regard to the extensive consideration of the supply of cannabis to T and the possibility that it made her even more inclined to engage in sexual activities with W than might otherwise have been the case. No objection whatever however was taken to this aspect of the conduct of the case.
[60] In the context of the manner in which the case had been conducted up until the time the offending question was asked in my view its content was insufficient to render the ultimate verdict so unsafe and unsatisfactory as to warrant setting it aside as a miscarriage of justice - whether that question be considered alone or in the light of the other grounds.
[61] In any event had an application been made for discharge of the jury I am far from persuaded having regard to the manner in which the trial had been conducted up to that time without objection on behalf of the appellant that the learned trial judge ought to have declared a mis-trial. However, no such application was made and in my view it would be inappropriate for this court upon appeal to set aside the verdict on this ground.
3. Wrongful Admission Of Recent Complaint Evidence
[62] There were two bases argued in support of this ground.
[63] The first was that the complaint was not in fact recent. Some months had passed from the time at least when some of the activities between the complainant and the appellant occurred. The complaint seems to have been first made to the complainant's mother in about November 1997 - perhaps three months after some of the events involving sexual activity between the complainant and the appellant had occurred.
[64] The complainant was extensively cross-examined as to various other persons to whom she had managed to speak by telephone over the relevant period. She said that she did not make complaint to them. She said that it was difficult for her to find the opportunity to make a private complaint because other members of the household were able to hear her talking on the telephone. She was cross-examined with a view to showing that there would have been occasions when she and T could have made a complaint but at the end of the day she steadfastly maintained that when she did finally make contact with her mother that was the first occasion on which she felt able to do so. At that stage the complainant was 15 years of age and although one might think experienced in the ways of lesbian activity she may not have been so experienced in having any sexual encounter with a male. The evidence indicates that she said she "preferred" female sexual encounters to those with males.
[65] In my view it was open to the jury if they accepted the evidence of the complainant having regard to her age to find that she did take the first opportunity she believed available to her to make a complaint to the only person to whom she felt able to do so - her mother - when she finally made contact with her in November 1997.
[66] The second complaint about the recent complaint evidence was that the complainant really did not give evidence capable of amounting to a complaint that the appellant had indecently dealt with her.
[67] Forgetting all about the leading nature of the question asked by the complainant's mother which led the complainant to affirm that she was "being sexually abused" there was no suggestion that she ever told her mother that it was the appellant who was sexually abusing her or indecently dealing with her. Indeed accepting the mother's evidence - as the jury were entitled to do - at the time the complainant agreed that she was being sexually abused and was upset about it she was being indecently dealt with by both W and her sister, T, as well as by the appellant. The offences being committed upon her by T were of precisely the same kind as those alleged against the appellant - without however the circumstance of aggravation.
[68] The Crown Prosecutor in the course of arguing about the admissibility of recent complaint evidence made it clear that he did not propose to rely upon it to any extent. Unfortunately the Crown submissions to the jury were not recorded but having regard to the terms of the summing up one assumes that the jury were not pressed to seek confirmation of the complainant's credibility with respect to evidence she gave implicating the appellant having regard to the alleged conversation between her and her mother concerning sexual abuse in November 1997.
[69] No complaint is made on behalf of the appellant about the directions given to the jury as to the use which they could make of recent complaint evidence. Unsurprisingly having regard to the content of the conversation with the mother given by the complainant and the content of the conversation given by the mother His Honour directed the jury that whatever the content of the complaint it went only to "the complainant's consistency or inconsistency".
No application was made for a redirection on this point.
4. Failure to Sufficiently Direct With Respect to s 7(1) of the Code
[70] My perusal of the record indicates that the complainant gave evidence of sexual activity between the appellant, W and her which if accepted by the jury - who were warned about the desirability of corroborative evidence in cases of this sort - clearly supported the convictions. In the course of his directions the learned trial judge read to the jury the content of s 7(1)(b) and (c) of the Code and observed -**
"So in those situations if you find that either or both of these persons in the joint counts that are on this indictment did an act for the purpose of enabling or aiding the other person to commit the offence or actually aided that other person in committing the offence then under this section they are considered to be guilty of the offence itself and can be charged with the offence itself as they have been."
His Honour later took the jury to the precise evidence given by the complainant as to the acts of each of the appellant and W. He observed that there were some suggestions that in some of the counts W was the party performing the act which constituted the offence and the appellant was aiding her either physically or by encouragement. He pointed out that in some instances it was suggested that it was the appellant who was the "principal offender" and was being aided or encouraged by W. He observed -
"Now you might find in some of these instances that depending on what view you take of the facts of course they are both guilty because they both performed the acts as principal offenders. They might be guilty in both categories. They might be guilty in the sense that they performed actions themselves which constitute the offence and they also aided the other person in committing the offence so they perhaps could fall under both categories ....."
His Honour seems to have used the term "principal offender" to describe the person who actually does the act which s 7(1)(a) contemplates.
[72] The content of this direction however in my view is not a matter of significance on this appeal.
[73] It is unnecessary to analyse count by count the evidence upon which the appellant and W were jointly indicted and convicted. It suffices to say that looking at the matter broadly W and the appellant and the complainant formed a menage à trois and engaged in various sexual activities with each other.
[74] Similarly in count 1 W and T and the complainant constituted a menage à trois in which each engaged in various sexual activities with the other over a period of time in the main bedroom of the house.
[75] It is clear that on that occasion both W and T were committing offences on the complainant. It seems however that T was never charged but was treated as one of two victims of W's dealings rather than as a joint offender with W of offences of which the complainant was the victim.
[76] There was no direction given in this case on count 1 relating to T being an accomplice with respect at least to that offence however no complaint was made by W on this point and it is not a matter raised by the appellant.
[77] Again, no application was made for any redirection upon the failure of the trial judge to deal more specifically with respect to the acts proved against the appellant and W and the categories of principal offenders as defined in s 7(1) of the Code in which they might be included. Obviously having regard to the verdicts on counts 2, 4 and 5 each of the appellant and W was found to be a principal offender - whether that finding was based upon an act that each did or the assistance that each gave to the other in doing an act - or perhaps both. Reference to the evidence indicates that the jury had ample evidence if they accepted the truthfulness and reliability of the complainant to return the verdicts which they did. In my view any further directions concerning the possible application of various parts of s 7(1) to the evidence in the case would have served simply to distract the jury.
[78] Essentially it was the jury's evaluation of the credibility - reliability of the complainant and T on the one hand and of the appellant on the other which was the foundation of the challenged verdict. I am unpersuaded that that evaluation has been shown to be insupportable.
[79] In my view the appellant has failed to show that the verdicts which he challenges are unsafe and unsatisfactory. He has failed therefore to show that there has been a miscarriage of justice justifying setting aside his convictions pursuant to s 668E of the Criminal Code.
[80] I will turn next to the application for leave to appeal against sentence.
[81] With respect to the sentence passed on the appellant, prima facie in my view, it lacks parity with the sentence imposed on his co-offender, W. As I have already indicated, she was convicted of six offences of indecent dealing with a circumstance of aggravation whereas the appellant was convicted of only three.
[82] It is necessary therefore to analyse the sentencing remarks of the learned sentencing judge to see on what basis there was such a striking difference between the sentences passed - not merely in respect of the indecent dealings upon which the appellant and W were jointly indicted and convicted but keeping also in mind that W was convicted of three other offences of a similar kind with respect to the complainant and indeed in February 2000 had pleaded guilty to three indecent dealings with respect to T committed over a two-month period about twelve months before the offences were committed upon the complainant.
[83] The evidence upon the appellant's trial (without objection on the part of anybody) was that T had informed the appellant that she was a lesbian. In the course of the appellant's trial T gave evidence that the appellant had informed her when she first came to Queensland that W "had a crush upon" her. There is no evidence to suggest that the appellant ever informed the complainant in similar terms. While there is no evidence that T informed the complainant of the sexual activity in which she had engaged for a couple of months prior to her 16th birthday with W, in the circumstances, I think the passing of that information might be safely inferred; it is quite clear that the complainant did not to attempt to hide her lesbian orientation nor did either T or the complainant make any endeavour to conceal their sexual activities together.
[84] When imposing sentence on the appellant upon counts 2, 4 and 5 (committed jointly with W) after having referred to the fact that the appellant had initially informed T of W's attraction to her his Honour observed -**
"These are matters of some significance because the first count on the indictment which involved the two girls, the complainant and T, and also W occurred when on the evidence which I accept you suggested that the three women sleep together while you slept in T's bedroom. Now you are not charged under count 1 but it would seem to me that I am entitled to take into account that action on your part because it has been suggested in front of me that really you were the instigator of this series of offences. I believe that that was indeed so."
[85] In dealing with count 2 which related to an indecent dealings between the appellant, W and the complainant, after pointing out that the appellant and W had had sexual relations in the presence of the complainant his Honour observed that the appellant had taken W's hands and guided them over the complainant's body in an intimate fashion. He observed "now again that action can only be construed on your part as fomenting the sexual behaviour of a lesbian kind between W and the complainant". He observed -
"Of course counts 4 and 5 followed rather soon afterwards and were of a similar nature with the further event that you performed oral sex upon the complainant."
[86] In imposing sentences upon W upon counts 6 and 7, his Honour observed -
"There were two further episodes involving yourself and the complainant, one in the lounge room and one in the bathroom. It would seem from what I have heard, particularly in respect of the bathroom incident that the complainant girl was the instigator of that particular event. However, the fact that the complainant had a lesbian orientation and may have been a willing participant in some of these events does not excuse you. You were an adult in charge of a child and it was your task of course not to take advantage of a child's inclinations in the way you did.
Of course I regard your actions Mr appellant as being far far more reprehensible. You were this girl's natural father. She was obviously a very vulnerable young woman. The fact of her lesbianism has really got nothing to do with it in a sense. If instead of having two girls there had been a son and a daughter and they had recently come back to the knowledge that they had a father and the two children proceeded almost immediately to engage in sexual intimacies one would have expected a responsible father to offer them some very careful advice and certainly not take advantage of their activity by proceeding to involve himself and his de facto wife in such activity."
**[87] His Honour observed in imposing the sentence of two years imprisonment upon W in respect of the six offences of which she had been convicted that she was already then serving a sentence of 18 months imprisonment in respect of the three offences against T to which she pleaded guilty and that she would be eligible for parole after two months of the imposition of that sentence on 2 March 2000. Sentences were imposed on both the appellant and W on 13 April 2000. W had not been admitted to parole under the sentence imposed in March. There was therefore an existing recommendation in relation to the earlier sentences when W was sentenced on 13 April 2000. However, neither the prosecutor nor counsel for W appear to have drawn to his Honour's attention the requirements of s 157(3)(a) of the Penalties and Sentences Act.
[88] In imposing the head sentence of three years imprisonment on the appellant it was declared that seven days spent in pre-sentence custody between date of conviction on 7 April 2000 and date of sentence on 13 April 2000 was to be deemed time already served under the sentence.
[89] In imposing sentence on W his Honour observed inter alia -**
"Having regard to the totality principle and having regard to the fact that you were not the prime instigator in these offence a head sentence is called for here of two years. I take the view that if your husband had not fomented this situation that in all likelihood these events might not have occurred at all."
[90] His Honour then imposed a sentence of two years imprisonment with respect to each of the six convictions and observed that -
"Having regard to the fact that on this occasion the matter proceeded to trial and involved cross-examination of both complainants I make no recommendation for consideration for parole."
**[91] Looking at the sentencing remarks of the learned sentencing judge however it seems clear that he intended to make the sentences of two years to be served concurrently with those of eighteen months imposed approximately two months earlier. Perhaps it was the intention of his Honour that W should become eligible for parole upon the expiration of twelve months from the date of imposition of sentence. Whatever may be the consequence of his failure to make a recommendation for eligibility when sentence was passed on W (and it is unnecessary upon the appellant's appeal against sentence to deal with that matter) it seems likely that it was the intention of the sentencing judge that she should be eligible for parole upon the expiration of twelve months from the date of imposition of the two year sentence and that the earlier recommendation in March 2000 for eligibility after two months would have no operation.
[92] It was essential of course for the learned sentencing judge and indeed for this court to keep in mind that the appellant had been acquitted of any involvement with the commission by W of the indecent dealing offences on T.
[93] Perhaps it was as a result of the course taken upon the trial of the appellant and W with respect to the offences committed on the complainant that so much attention in the trial was given to the events involving T. Indeed in passing sentence upon W his Honour observed -**
"Having regard to the fact that on this occasion the matter proceeded to trial and involved cross-examination of both complainants I make no recommendation for consideration for parole."
**[94] He had previously observed in sentencing her that "having regard to the totality principle and having regard to the fact that you were not the prime instigator in these events that a head sentence is called for here of two years".
[95] If the learned sentencing judge did take the view that the appellant was in someway involved with W in the offences committed with respect to T - of which he was acquitted - then that of course could not conceivably justify the imposition of the sentence he imposed upon the appellant. T of course was not a complainant in the trial which led to the conviction of the appellant on the three charges of indecent dealing with the complainant although perhaps the learned trial judge might be excused for a slip of the tongue when he observed that W had proceeded to a trial which involved "cross-examination of both complainants". His Honour seems to have overlooked the fact that far from being a complainant upon the trial of either the appellant or W with respect to the indecent dealing charges involving the complainant, T was in fact an accomplice of W with respect to the offence committed in count 1.
[96] Having examined the evidence of T I can find no basis to infer that the sexual activity which took place between T and W for a couple of months before T achieved her 16th birthday was more likely motivated by the appellant's desire to have W indecently deal with T than it was by W's intimation to the appellant when he undoubtedly informed her shortly after he met T that she had advised him that she was of lesbian orientation, that she would be interested in engaging sexual activity with the girl. I would really have thought the at least equally probable explanation for the events that occurred between W and T was W's desire to indecently deal with T of which she informed the appellant, who then proceeded to facilitate that event by telling T - more probably than not at the suggestion of W - of W's sexual interest in her.
[97] Upon the whole of the material and particularly the evidence relating to count 1 upon which W was convicted - involving an indecent dealing by both T and W with the complainant - in my view the most probable explanation for this event was the desire of W to engage in tripartite lesbian activity with the two girls who openly expressed the pleasure which they derived from their lesbian activities. Undoubtedly the appellant made available the bed normally occupied by himself and W to the three of them for this purpose. Undoubtedly as his Honour indicated that was a reprehensible thing for a natural father to do for the purpose of facilitating an indecent dealing between two women and his 15 year old daughter - whatever her sexual orientation may have been.
[98] However I find it difficult to apportion culpability between the appellant and W in respect of the three counts upon which they were jointly tried and convicted on an other than equal basis - particularly having regard to the fact that there is no evidence that the appellant ever attempted to effect penile penetration of the complainant or indeed encouraged the complainant to make any sort of sexual advance to him.
[99] While undoubtedly the appellant's activities with the complainant which led to his conviction on counts 2, 4 and 5 amounted to a serious breach of the obligations which he owed to his daughter - albeit that he had not seen or had any contact with her for 15 years prior to her introducing herself and asking to be brought into his household, I am unable for that reason alone to differentiate between his culpability and that of W who agreed that she owed the duty of a stepmother to the complainant having regard to the positions each occupied in the appellant's family household.
[100] There is no evidence whatever to suggest that it was the appellant who suggested or determined that he should make the place in the bed normally occupied by himself with W available for a menage à trois between his de facto wife, his daughter, T and his daughter, the complainant rather than that matter having been suggested or determined by W. Similarly there is nothing to suggest that the activities that occurred which are the subject of counts 2, 4 and 5 were at the appellant's instigation rather than at the instigation of W.
[101] For all practical purposes T and the complainant were strangers to each other as well as to both the appellant and W before those girls arranged to shift from New South Wales and become members of the family household of the appellant and W near Maryborough. There never developed in the household the sort of relationship which one might expect to develop when children are reared from a very early age to one of 15 or 16 years in a household with natural or step parents. That is not to say of course that it is not a significant circumstance of aggravation that an offender under s 210 of the Criminal Code commits an offence with respect to a lineal descendant. However, s 210(4) does not distinguish between an offender indecently dealing with his or her lineal descendant and an offender indecently dealing with a child under his or her care
[102] At the end of the day it is my view that there is no basis upon which the difference in sentences imposed upon the appellant and W can be justified. If anything in my view having regard to the number of indecent dealing offences committed by W with respect to T and the complainant (nine) and the number of indecent dealings committed by the appellant (three) a heavier sentence could well have been imposed upon W. I do not however suggest that the two year sentence was inappropriate in the circumstances.
[103] In my view parity in sentencing requires that the appellant's application for leave to appeal against sentence be granted, and in lieu thereof a sentence of imprisonment for two years be imposed
[104] In the result then I would dismiss the appeal against conviction.
[105] I would grant application for leave to appeal against sentence, set aside the sentence of three years imprisonment and impose in lieu thereof a sentence of imprisonment for two years. I would declare that pre-sentence custody between 7 April 2000 and 13 April 2000 be deemed time already served under that sentence.**
R
C [2000] QCA 385
(1991) 171 CLR 432
(1984) 154 CLR 606
(1994) 181 CLR 487
(1996) 190 CLR 348
(1997) 189 CLR 295
(1970) 126 CLR 321