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[2010] QCA 343
Court of Appeal (Qld)
2010-12-10
Margaret McMurdo P and Holmes JA and Daubney, J, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
Original judgment source is linked above.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES - where appellant convicted of one count of indecent treatment of a child under 12 years - where evidence was admitted of tacit admissions made in the course of a pretext telephone conversation instigated by the complainant and recorded by police - whether complainant acted as an "agent of the State" - whether the pretext telephone conversation amounted to an interrogation of the appellant - whether there was anything in the relationship between the appellant and the complainant which would call for exclusion of the pretext conversation - whether the learned trial judge would have been bound to exclude the pretext call, had an application for exclusion been made at trial - whether a miscarriage of justice occurred
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE - where evidence admitted of a pretext conversation recorded between the complainant and appellant - where the learned trial judge directed the jury to consider whether statements made by the appellant amounted to an admission - where the learned trial judge directed the jury to consider whether the appellant's evidence made a difference or provided an innocent explanation for the conversation - whether the learned trial judge erred by not directing the jury that they had to be satisfied that the accused had by his speech, silence or conduct admitted the truth of the statements - whether the learned trial judge's direction to the jury to consider whether the appellant's evidence regarding the pretext conversation made a difference or provided an innocent explanation amounted to a reversal of the onus of proof - whether miscarriage of justice occurred
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP - where counsel for the appellant disavowed any need for a Longman direction - where it was agreed that the factor of delay should be incorporated generally into a Robinson-type direction - whether the learned trial judge erred by not giving the jury a Longman direction - whether miscarriage of justice occurred
Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, cited
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, applied
Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, applied
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v Broyles [1991] INSC 193; [1991] 3 SCR 595, applied
R v ON [2009] QCA 62, distinguished
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, applied
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
Director of Public Prosecutions (Queensland) for the respondent
[1] MARGARET McMURDO P: This appeal against conviction must be dismissed for the reasons given by Holmes JA.
[2] HOLMES JA: The appellant appeals against his conviction after a trial of one count of indecent treatment of a child under 12 years on the grounds that a recorded telephone conversation between him and the complainant (the "pretext call") ought not to have been admitted as evidence against him; or, alternatively, that the learned trial judge failed properly to direct the jury as to its use; and that the trial judge erred in failing to give a Longman[1] direction.
[3] The complainant, K, was 14 when she was interviewed by police officers, and 15 when she gave evidence at the pre-trial hearing. In the interview she said that when she was eight or nine years old, the appellant, who was a former work colleague of her mother's, had stayed at her house. She obeyed his instruction to meet him at night in his bedroom after her mother and her mother's de facto husband had gone to sleep. When she entered, he took her hand, pulled her onto the bed, removed her underpants and licked her vaginal area. Afterwards, he told her not to tell her mother because he would "get in lots of trouble".
[4] About a fortnight after being interviewed, K, at the instigation of the interviewing police officers, telephoned the appellant in a recorded call. Relevant portions of the conversation are as follows:
K Yeah, and you wanted to lick me out, which you did.
K Yeah but I just wanna know if it's gunna happen again?
CD You feel like all guys have to do stuff to a little girl?
[5] K said that she was not told what she should say to the appellant, and no-one communicated with her during the course of the call. One of the police officers who interviewed her and arranged the pretext call gave evidence that she and her fellow officer had gone through a "pretext explanation" with K. (What that entailed was not explored in evidence.) They had shown K how to use the equipment and then left the room, shutting the door and remaining outside until K emerged, having completed her call.
[6] K's mother said in evidence that in February 2009, her daughter disclosed some conduct by the mother's de facto husband which led her to contact the police. After she had done so, K went on to tell her that the appellant had told her to come to his room after her mother and her mother's de facto husband had gone to bed. Her mother asked what had happened. She responded,
[7] The appellant gave evidence at the trial. He said that on a visit to K's mother he had woken briefly one night to see someone with dark hair lying down beside him. Because he was sleepy and intoxicated, he took it to be his girlfriend who was, in fact, in Sydney. When K made the telephone call to him in February 2009, he did not know what to think. He understood her to be referring to that night and entertained the possibility that something untoward might have happened then. During the telephone call, he was trying to establish what K was talking about and why she was making the accusation. It was only after the telephone call was over, and he had the opportunity to collect his thoughts, that he was convinced what she had suggested was impossible. He had not performed oral sex on the girl.
[8] The appellant argued that the admission of the recording of the telephone conversation, although not objected to at trial, had led to a miscarriage of justice. K was an "agent of the State" in the expression adopted by the High Court in R v Swaffield,[2] and she had elicited the statements by the appellant said to constitute admissions. Reliance was placed on the considerations set out by the Supreme Court of Canada in Queen v Broyles,[3] which met with the approval of the High Court in Swaffield:[4]
"The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?"
[9] In the present case, the appellant said, the admissions were the result of specific questions and interrogation by K. She had set out, in a role she would not ordinarily have taken but for police urging, to get an admission from the appellant, who had previously made none. Because she did not reveal the purpose of her telephone call, using a ruse - that she was calling to investigate the possibility of a visit - the appellant was put at a disadvantage. The responses relied on by the Crown as admissions were the product of leading questions amounting to a functional interrogation. It should also be taken into account that the conversation had produced no explicit admission by the appellant; rather, it left open an inference of guilt because of his manner of responding.
[10] It may be accepted that K, acting as she was at the instigation of the police officers in making the telephone call, was an "agent of the State". This was not a case, however, in which the conversation was arranged in order to overcome a previously exercised right of silence by the appellant. In terms of the factors identified in Broyles, there was nothing in the relationship between the appellant and K which would call for exercise of the discretion in favour of exclusion; he was in no sense vulnerable to her. The conversation itself did not amount to an interrogation. There was very little by way of direct questioning by K. Rather, she gave prompts in her references to the events of the night in question, to which the appellant responded, apparently freely and at length; indeed, he said he was "really glad to talk about it". The appellant felt at liberty to question K on a number of occasions, taking something of a counselling role. It is clear, when one listens to the recording, that the appellant was not overborne or confused, although he was mildly wary at different points in the conversation.
[11] While the appellant made no explicit admissions, his responses, in the context of K having made the specific allegation that he had "lick[ed] [her] out",
"things just happened ... spur of the moment sort of thing ... ."
"I've sort of like looked back at that ... night as a ... dream, as if it didn't really happen like the next morning and that ... it was pretty, pretty, bizarre thing ... to happen".
"... that was so wrong ... I can't understand it, I mean I'm ... into adults ... kids have got nothing ... to offer me... ."
could plainly be regarded as tacit admissions to the conduct of which he was accused. I do not consider, had the learned trial judge been asked to exercise her discretion to exclude the evidence, that she would have been obliged, in these circumstances, to have done so. Its admission has not resulted in any miscarriage of justice.
The direction as to the use of the pretext call recording
[12] Neither counsel at trial sought any particular direction about the use of the pretext recording. The learned judge directed the jury as follows:
"So in relation to the phone call then, you have to decide exactly what was said, obviously, and whether it amounted to an admission that he did, in fact, indecently deal with her in the way that the complainant has described.
Remember, of course, that the accused has given evidence under oath, and he's given an explanation of why he spoke to the complainant and his comments to the complainant. Does that make a difference to you? Does that provide an innocent explanation for the conversation?"
The judge reprised parts of the conversation which the Crown relied on as admissions and then summarised the evidence that the appellant had given about it, with some references to the transcript. Having done so, her Honour reminded the jury that the accused was under no obligation to give evidence and had assumed no burden of proof.
[13] The appellant argued that the learned judge had wrongly shifted the onus to him by asking whether his evidence provided "an innocent explanation", an error which was not corrected by her later direction as to the absence of any burden on him. The jury ought also have been told that before acting on the parts of the recording relied on by the Crown as admissions, it was necessary that they be satisfied that they were truthful and accurate,[5] and more particularly, in accordance with Barca v The Queen,[6] that the appellant had, by his "speech, silence or conduct",[7] admitted the truth of what was said to him. As to the latter, it was not necessary merely to tell the jury what the law was, but to relate it to the facts of the case.[8]
[14] The phrase "amounted to an admission" would not, the appellant said, have the meaning for jurors that it did for lawyers; they should have been told specifically that they should act on the responses only if satisfied that they amounted to an acceptance of the truth of what was asserted. That was particularly so where it was possible that the appellant's responses indicated not agreement to K's specific allegations, but a more general acknowledgment of wrongdoing in bringing her into his bedroom; a consciousness of guilt of the kind relied on by the Crown in R v ON,[9] which might be referable to an awareness of inappropriate conduct rather than guilt of the offence charged.
[15] I do not think that the learned judge's reference to considering whether the appellant's evidence provided an innocent explanation for the conversation amounted to any shifting of the onus to the appellant. It was, in context, no more than a direction to the jury to consider the appellant's evidence which was, if accepted, capable of explaining the conversation. It was followed by a clear direction about where the onus lay, in which the trial judge pointed out that a rejection of the defence evidence would still leave the jury in the position of having to consider whether it was satisfied that the prosecution had proved the offence.
[16] This was not a case like R v ON in which the prosecutor relied on the conversation as evidence of consciousness of guilt without identifying statements constituting admissions. Nor was the jury in any doubt as to which statements the Crown was characterising as admissions; immediately after the directions set out at paragraph 11 above, the learned judge went on to remind them of those parts of the conversation.
[17] I do not accept that the members of the jury would have had any difficulty, having been reminded of the questions and answers relied on, in understanding what her Honour meant when she told them that they had to decide whether what was said amounted to an admission. It was a more succinct way of saying that they had to be satisfied
"that the accused has by his speech, silence or conduct admitted [the] truth [of the statements]."[10]
It was inherent in the direction that the jury must be satisfied that what was said was an acceptance, based in reality, of what K alleged. No error has been shown in her directions in this regard.
[18] Before summing up, the learned trial judge asked whether counsel for the appellant sought a Longman direction dealing with K's delay in complaining and its consequences. Counsel disavowed any need for such a direction, observing that both appellant and complainant were focussed on one incident, albeit giving different versions of it, and suggesting, instead, that a more general direction of the kind discussed in Robinson,[11] dealing with particular features of the case - the delay, K's age and a false allegation K had made that her mother had punched her - should be given.
[19] Having pointed out that the Crown case rested heavily on K, the learned judge gave the following direction:
"So your assessment of her is most important. You'll need to scrutinise her evidence with great care before you can arrive at a conclusion of guilt, and you need to look at a number of factors when you're scrutinising her evidence. For example, look at the delay between the alleged offence and the complaint, has it deprived the accused of an opportunity to properly examine the complainant about the circumstances of the offence? Has it affected her memory? Of course, that factor is tempered somewhat by the fact that the accused says that he knew the night of which she spoke. In fact, he remembered having this dream. Look at the age of the complainant, she was very young at the time that she says this thing happened, and there's some suggestion that she was having troubles with Ray as well, and Ray was living at the house around this time.
Look at her, I called it her troubles, around this time. The difficulties she was having at school and those sorts of things, does that make any difference to your assessment of her credibility or not? It's a matter for you.
Also look at this question of what the defence say are false allegations made to the counsellor about her mother. Now, in relation to that, you'll remember when she was cross-examined, she was asked whether she'd said anything to the counsellor about her mother, and she said that she had never said that her mother bashed her. That she might have said that her mother verbally abused her, but her mother had only ever slapped her twice in her whole life, and that was not without good cause, effectively."
Her Honour went on to remind the jury of some further aspects of the evidence concerning what K had said about her mother's behaviour to her.
[20] Counsel for the appellant here contended that a Longman direction was required. The trial judge should have warned the jury that it would be dangerous to convict on K's evidence alone because of the disadvantage arising from the delay in complaint, in diminishing the appellant's capacity to test K's evidence and to assemble any medical or DNA evidence in response.
[21] It should be noted immediately that K's evidence lacked corroboration only if the appellant's responses in the recorded telephone call were not accepted as admissions. In any event, the jury was reminded of the delay in complaint and told to consider whether it had deprived the appellant of the opportunity to properly examine K about the circumstances of the offence. There seems little prospect, given the nature of the assault, that had there been immediate complaint a medical examination of K would have yielded any evidence. DNA testing might have been productive, but that was not a suggestion raised at the trial; in those circumstances I do not think it was incumbent on the learned judge to raise the prospect. The appellant was able, as his counsel at trial conceded, to identify the night in question so there is no question of disadvantage in that sense.
[22] The direction given, it seems to me, properly addressed the issues which were actually raised as requiring caution when the jury considered K's evidence: the effects of the delay on memory (hers and that of the appellant), her age at the time, the domestic context in which she was living and the possible false allegations made by her about her mother. It was appropriate to the circumstances of the case and manifests no error.
[23] I would dismiss the appeal against conviction.
[24] DAUBNEY J: I respectfully agree with the reasons for judgment of Holmes JA and with the order she proposes.
[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
[2] (1998) 192 CLR 159 at 204.
[3] [1991] INSC 193; (1991) 3 SCR 595 at 611.
[5] Burns v The Queen (1975) 132 CLR 258.
[8] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466.
[10] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 107.
[11] Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 at 170-171.
R
Cavalli [2010] QCA 343
(1952) 85 CLR 437
(1975) 133 CLR 82
(1975) 132 CLR 258
(1989) 168 CLR 79
(1998) 192 CLR 159
(1999) 197 CLR 162