R v D [2001] QCA 256

The complainant identified counts (3) and (4) with events that took place on a particular date, namely 12 September 1999. Counts (1) and (2) charged incidents that had occurred on an earlier occasion. There was evidence from the complainant that, while her mother was out, the applicant took her to his bedroom, touched her vagina with his hand (count (1)) and on one possible view of it that is by no means clear, also put his penis in her mouth (count (2)).

Counts (3) and (4) referred to 12 September 1999 and were also said to have taken place when the complainant's mother was out of the house. On that occasion the complainant claimed that the appellant had put his penis in her mouth while she was in the bathroom washing her hands after she had gone to the toilet. It was then that it was said he had punched her in the stomach. The inference, as I interpret the evidence to be, is that he did so because he had, he thought, been unnecessarily asked by the complainant to bring her some toilet paper while she was on the toilet.

The uncharged acts about which complaint is now made on appeal were contained in a tape recorded statement made by the complainant in the course of a police interview that was admitted at the trial under Section 93A of the Evidence Act and which statement or statements were to some extent confirmed by evidence at the trial.

In the Section 93A statement the complainant said that the appellant, whom she called Tigger, "keeps on smacking us and he hit my little brother". She also said he "threw her little brother in the wall and he choked him with the chain". On the matter of the sexual assaults, the complainant said that the applicant put his penis in her mouth and that "he does it every time" by which she explained she meant that when she and her brothers were asleep the appellant woke her up and put his penis in her mouth. She said he had done it "many times" and, rather graphically, that it had happened "for about 60 years".

There were therefore statements in evidence before the jury which referred not only to sexual acts against the complainant on other occasions, which acts were not charged, but also to uncharged acts of assault, some it would seem of considerable force or violence perpetrated not only against her alone but also against her brother or brothers. According to R v. W [1997] QCA 415; [1998] 2 Qd R 531 in which the judgments in BRS v. The Queen [1997] HCA 47; (1998) 191 CLR 275 were carefully considered and analysed, that evidence was properly admissible as tending to show the relationship between the parties or as serving to place evidence of the offence charged "in a true and realistic context". In his summing-up in the present case his Honour directed the jury that they could make use of the evidence for that purpose. He was also emphatic about the need for the jury to determine each charge strictly on the evidence relating to it. What, however, he did not do was to warn or direct them expressly that they must not, from that evidence of other uncharged acts, reason that the appellant was a person who was prone to act in that kind of way and that therefore he must have done so on the occasions with which he was charged in the indictment.

There is, as Pincus JA and Muir J said in R v. W, a degree of artificiality in requiring that the jury should be directed that the evidence of uncharged acts was capable of being used to show the existence of a relationship between the appellant and the complainant, but not to show a propensity on his part to commit offences of the kind in question. Nevertheless, the passages from BRS v. The Queen, which are set out in the reasons in R v. W, make it to my mind clear that such a direction should have been given in the circumstances of this case.

Here such a direction was made necessary or perhaps more necessary because the uncharged acts had two features not always found in cases of this kind. One was that they related not only to sexual acts but to other non-sexual acts of violence as well. The other was that those acts of violence related to persons in addition to the complainant herself.

Counsel for the appellant at the trial did not object to the admission of the evidence of those other sexual acts or acts of violence. Not unnaturally one might think he sought to show that they simply represented a rather idiosyncratic method of disciplining the children. Curiously to my mind that may also, in fact, have been a feature on some occasions, or one of them, of the appellant's sexual abuse of the complainant, although, in the end, that I consider is not relevant for present purposes. The evidence was not inadmissible but it called for a clear direction or warning of the kind I have mentioned. Counsel did not request a redirection to that effect after the summing-up but as in BRS v. The Queen the absence of such a request for a redirection is not fatal to the appeal even if it should have been sought.

The result is that an error of law in the trial has been demonstrated. It is perhaps unlikely that, even if the direction had been given, it would have affected the verdict; but the appellant has been deprived of the chance of acquittal and it is not possible to apply the proviso. It may be a matter for regret because the summing-up in many ways was lucid and clear; but the omission appears to me to be fatal to the verdict and the ensuing convictions.

The appeals against conviction should in my view be allowed; the convictions and verdicts set aside; and a new trial ordered on all counts in the indictment.

DAVIES JA: The orders are as indicated by Mr Justice McPherson.