R v DM [2006] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION: R v DM [2006] QCA 79

PARTIES: R v DM (appellant)

FILE NO/S: CA No 260 of 2005 / DC No 2554 of 2004

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 21 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 6 March 2006

JUDGES: Williams JA, Jerrard JA, McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal allowed / 2. Set aside the convictions on counts 2 to 8 inclusive on the indictment and order a re-trial on each of those counts

CATCHWORDS: CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- MISCARRIAGE OF JUSTICE -- PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath / CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath / CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- legal counsel are under an obligation to draw to the judge’s attention any relevant omission in directions given by the trial judge to the jury / Criminal Code 1899 (Qld), s 668E(1A), discussed / Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A, cited / Evidence Act 1977 (Qld), s 21AW(2), s 93A, discussed / R v T N [2005] QCA 160; 153 A Crim R 129, quoted / Weiss v The Queen [2005] HCA 81, M50 of 2005, 15 December 2005, followed

COUNSEL: H J C Cremin for the appellant / M J Copley for the respondent

SOLICITORS: No appearance for the appellant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: Section 21AW of the Evidence Act 1977 (Qld) is in mandatory terms; it applies, inter alia, whenever a child’s evidence is taken in a way provided for under sub-divisions 3 or 4 of Division 4A of the Act. The critical provision is sub-section (2) which is in terms:

“The judicial officer presiding at the proceeding must instruct the jury that –

the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

the probative value of the evidence is not increased or decreased because of the measure; and

the evidence is not to be given any greater or lesser weight because of the measure.”

In R v T N [2005] 153 A Crim R 129, Keane JA (with the concurrence of Williams JA and Helman J) said at 147 that a “failure on the part of the learned trial judge to comply with the terms of s 21AW(2) was an error of law.”

In certain cases there may be justification for a trial judge expanding upon what is said clearly and simply in s 21AW(2), but it is of critical importance that the mandatory directions be given. The words of the sub-section are clear and would be readily understood by any juror. There is no need, in the absence of some specific problem in a particular case, to do more than direct the jury in the terms of the section. The error of law resulting from the omission to give the mandatory directions will ordinarily result in a miscarriage of justice resulting in any convictions being set aside unless the proviso (s 668E(1A) of the Criminal Code 1899 (Qld)) can be invoked.

This Court in T N was persuaded that in that case the proviso could be applied, but it may be significant that it came before the decision of the High Court in Weiss v The Queen [2005] HCA 81. That decision makes it clear that in order to be able to apply the proviso the appeal court must make its own independent assessment of the evidence and be satisfied that guilt has been proved beyond reasonable doubt.

In the present case the appellant gave evidence denying any of the conduct alleged to have constituted the offences. That meant that essentially the case was to be determined upon credibility. Could the evidence of either or both of the complainant girls be accepted beyond reasonable doubt in light of the appellant’s evidence denying doing the acts in question? The appeal court would be able to view the video of the complainant girls giving evidence and therefore would be in much the same position as the jury when it came to evaluating their evidence. But the evidence of the appellant and other witnesses is only available in the written transcription of evidence. In those circumstances the appellant would effectively be denied a fair trial if this Court sought to evaluate the evidence of the appellant and the other witnesses as it appeared in the record book against the evidence of the complainant girls available on video. For that reason this Court is not able to embark upon the task set by Weiss in determining whether or not the proviso should be applied.

It follows that, there being an error of law constituting a miscarriage of justice, the convictions must be set aside and a new trial ordered.

Such a result highlights the importance of trial judges complying with the mandatory requirements of s 21AW. The matter is referred to in the bench book, and the direction is a simple one.

This is not the only case to have come before this Court recently where there has been a failure to comply with s 21AW. One other concerning feature is that in all of those cases neither counsel for the prosecution nor defence counsel drew the trial judge’s attention to the omission and sought a redirection. Where a statute requires a trial judge to give a particular direction then there is an obligation on each counsel to draw the judge’s attention to any relevant omission. It is a matter of law and counsel on both sides are obliged to give assistance to the judge on such issues.

Other facts and matters relevant to this appeal are fully set out in the reasons for judgment of McMurdo J which I have had the advantage of reading. I agree with what he has said therein.

The orders of the court should therefore be:

Appeal allowed; and

Set aside the convictions on counts 2 to 8 inclusive on the indictment and order a re-trial on each of those counts.

JERRARD JA: This appeal involves the consequences of a trial judge failing to direct a jury in accordance with s 21AW of the Evidence Act (1977) (Qld). The effect of that section is, inter alia, that when the evidence of a child witness is taken by a pre-recording – usually video-taping at a hearing presided over by a judge – then another judge who conducts a subsequent criminal trial must instruct the jury that:

that the measure (i.e. pre-recording the child’s evidence) is a routine practice of the court and that the jury should not draw any inference as to the defendant’s guilt from that; and

the probative value of the evidence is not increased or decreased because of the measure (pre-recording the evidence by video-tape); and

the evidence is not to be given any greater or lesser weight because of the measure (i.e. the evidence including cross-examination having been pre-recorded).

In the trial proceeding from which this appeal comes, the evidence of two complainant children was pre-recorded by video-tape, and consisted of both evidence in chief and quite extensive cross-examination. None of those mandatory warnings were given, although the Queensland Supreme and District Courts Benchbook does remind judges of the need to do that, at direction No 10.2. No complaint was made at the trial about the learned trial judge’s failure to direct as required.

DM was convicted by a jury on 9 September 2005 of one count of unlawfully and indecently dealing with J, a child under 12 years and in his care; four counts of digital rape of J; and two further counts of unlawfully and indecently dealing with T, a child under the age of 16 years and also under his care. He was acquitted of another count of having unlawfully and indecently dealt with J when under 12 years of age and under his care. On 26 October 2005 he was sentenced to three years imprisonment on each count of digital rape, and on all other offences imprisoned for 12 months, those sentences to be served concurrently; the learned judge recommended that DM be considered for post prison community based release after he had served 12 months of the three year term. The judge declared that the 47 days in custody between 9 September and 26 October 2005 was to be deemed time already served pursuant to the sentences imposed. DM has appealed against his convictions on six grounds.

The last one, ground 6, added by leave on the hearing of the appeal following the point being identified in the written outline of counsel for the respondent Director, Mr Copley, was that the learned trial judge had erred in law in failing to give the jury any of the three directions required by s 21AW of the Evidence Act 1977. Mr Copley, conceded that although no complaint had been made about the matter in DM’s original grounds of appeal, the judge’s failure to give those mandatory directions was an error of law.¹ Nevertheless, Mr Copley submitted that the proviso in s 668E(1A) of the Criminal Code 1899 (Qld) could safely be applied, because nothing had been said by the learned trial judge to suggest that the evidence of the two complainants had any better or enhanced probative value or weight because of the way in which it was presented to the jury.

To explain Mr Copley’s concession that the learned trial judge had erred in law, and Mr Copley’s submission that no substantial miscarriage of justice had occurred by reason of that error, it is necessary to describe the nature of the prosecution case. DM is the stepfather of the complainant child T, and the complainant J is a friend of T, who sometimes stayed with DM, his wife, her two daughters T and C, her son B, and the owner of the residence, a Mr JA, aged 82 at the relevant time.

J had decided she would like to stay overnight at T’s home on the night of 22 July 2003, and by their own choice both girls elected to sleep in the lower bunk of a double bunk bed. T had just turned 12, and J was a month over 10. The two girls went to bed at about 8.30pm, although not to sleep, and DM’s wife went to bed at around 9pm. DM was still up, and he and his wife had consumed between two to three bottles of red wine between them. When DM’s wife went to bed, JA was watching television and DM was asleep on the couch.

DM’s evidence was that JA woke him at about 9.15pm, and that then JA went to bed. DM stayed up and tidied up the kitchen, and then folded up some washing, before turning out the lights and going to bed. On his evidence he remained there.

The essence of the prosecution case against DM, in respect of the offences allegedly committed on J, were that on five separate occasions he entered and left the bedroom the girls occupied, and indecently dealt with J each time. The case against him in respect of T was that on two of those occasions he had also indecently dealt with her. Finally, it was alleged that on an occasion somewhere between two weeks to three months earlier, DM had indecently touched J when that child was visiting the home and sleeping in the bedroom usually occupied by C. The jury acquitted on that count. They must have accepted the essence of the Crown case in respect of both complainant children, because convictions were returned on all counts charging offences committed on or about 22 July 2003. Those were counts 2 to 8 inclusive. Counts 4 and 5 charged unlawful and indecent dealing with T, then a child under 16 and in DM’s care, count 2 charged unlawful and indecent dealing with J, when a child under 12 years and in his care, and the other counts were of digital rape of J, allegedly constituted by digital penetration of her vagina.

The two girls made what in past years would have been put before the jury as timely and fresh complaints of sexual abuse, although s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) now prohibits a judge from suggesting to a jury that the law regards a complainant’s evidence to be more reliable only because of the promptitude with which a complaint is made. That section does not prevent the Crown making an argument to a jury as to the significance, in support of a complainant’s credibility, that a prompt complaint was made.

The complaint was made to DM’s wife the next morning, at about 7.30am. As a result of it, the two girls were then separated and questioned separately by DM’s wife, and the complaints she heard appeared generally consistent with the accounts the two girls gave later that day to investigating police officers, and then repeated in video-taped evidence recorded respectively in November 2004 in J’s case, and in January 2005 in T’s. Both girls had given evidence as well in a committal hearing, and the pre-recorded cross-examination (in November 2004 and January 2005) did not suggest any significant contradiction between what was said in the Magistrates Court and what was said in evidence before the District Court judge presiding over the proceeding in which the video-taped pre-recording was occurring, pursuant to Subdivision 3 of Division 4A of the Evidence Act 1977.

Division 4A was inserted in 2003², and its purposes included requiring that an affected child’s evidence (the evidence of a child who is a witness and not a defendant) be taken in an environment that limited to the greatest extent practicable the stress and trauma that might otherwise be experienced by a child when giving evidence. To achieve that purpose, for a criminal proceeding an affected child’s evidence is to be pre-recorded in the presence of a judicial officer, but in advance of the hearing of the criminal proceeding. For a committal proceeding, the child’s evidence in chief is to be given only by way of a statement and, ordinarily, the child is not to be called as a witness for cross-examination. Generally speaking, s 21AM within Division 4A has the effect that a video-taped pre-recording of an affected child’s evidence is as admissible as if it were given orally in the proceeding, and unless otherwise ordered, is admissible in any re-hearing or re-trial, or appeal from, the proceeding. Provision is made in s 21AN for orders that an affected child, who has been excused from further attendance, give further evidence (also to be pre-recorded) at another preliminary hearing, or else attend at the proceeding itself to give further evidence; orders of that sort must not be made unless the court is satisfied both that the child could be recalled to give further evidence if giving evidence before a court in the ordinary way, and also that it would be in the interest of justice to make the order for the child giving further evidence. Provision is also made in s 21AO for an order that a child’s evidence not be taken by video-taping under Division 4A; the courts may make such an order for good reason, having regards to the child’s wishes and the purposes of this Division. A statutory example provided in the legislation is if facilities for video-taping are not likely to be available within a reasonable time.

Both T and J were interviewed by the police on 23 July 2002, and a written statement of T’s evidence was prepared by the police, and signed by her. No written statement was extracted from the interview with J. J was interviewed by the police again on 27 August 2003, in respect of the complaint by her of an earlier occasion of abuse. Then there was the committal proceeding, and finally the pre-recording of J’s evidence on 11 November 2004 pursuant to Part 4A, and of T’s on 18 January 2005. At DM’s trial in September 2005 the jurors saw the video recording of the interview with T, recorded on 23 July 2003, and put before the jury by reason of s 93A of the Evidence Act 1977, and the Crown likewise put the signed statement of T dated 23 July 2003 before the jury, as Exhibit 2. It was also admitted pursuant s 93A. The jurors then saw and heard the video-taped pre-recording of the evidence in chief and cross-examination of T, which became Exhibit A. A transcript appears in the appeal record of pre-trial proceedings.

The jurors saw the video recorded interview between J and the police on 23 July 2003 (Exhibit 2 at the trial) and the video interview on 27 August 2003 (Exhibit 4), and the video-taped recording of her evidence made on 11 November 2004 (Exhibit B at the trial); a transcript appears in the record of pre-trial proceedings. Those video recordings were admissible pursuant to the provisions of the Evidence Act 1977 cited above.

The evidence of both girls taken before a (different) District Court Judge pursuant to Part 4A of the Evidence Act 1977 was generally clearer in the description given of events and their sequence, than had been the case in the respective interviews of each girl with the police. Mr Copley accepted that a clearer account had been given in the evidence in chief, largely adhered to in cross-examination, by both complainants than appeared in the account elicited in the police interviews.

DM gave evidence on oath denying any indecent or abusive behaviour as alleged, and medical examination of J performed the next day did not disclose any observable injury. The case was therefore one in which the jurors had the evidence of each complainant, supported by the evidence of the other, in accusation, and the evidence of DM in denial. His wife’s evidence supported the girl’s account, in that she could recount their promptly made complaints the next morning, but her account of those complaints included at least one highly improbable detail that both girls denied describing. The complainants, particularly J, were also cross-examined to some effect about the lighting in the room, compared to the evidence about that topic given by DM’s wife, and about differences in their various accounts, particularly as to whether or not T had actually seen DM or not on either of the two occasions on which he was alleged to have been in the room molesting her.

The error of law in the summing up means that the convictions can only stand if this Court is satisfied that no substantial miscarriage of justice occurred because of the failure to direct in accordance with s 21AW. That direction is intended to assist jurors when evaluating pre-recorded evidence and to protect both the prosecution and defendants against unfair assumptions and possible prejudice. It is dangerous to assume that, in any individual case in the absence of the statutory reminder, there was no actual need for it. If judges comply with the statutory requirements as reminded in the Queensland Supreme Court and District Court Benchbook, then this Court and the community will be able to rely with more confidence on the unanimous verdict of a jury, whether for conviction or acquittal.

The High Court has recently reminded intermediate appellate courts in Australia that in determining whether no substantial miscarriage of justice has happened, appellate courts must make their own independent assessment of the evidence and determine whether a particular appellant had been proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty, albeit after a misdirection.³ In these matters there was no independent evidence corroborating or making more likely or probably true the girls’ accusations, denied on oath. The three judges of this Court could, like the jury, spend close to two days watching the video recordings of the interviews with the police and the pre-recorded evidence of the complainant, but could only read DM’s evidence. In a case where the cross-examination did raise matters relevant to the credibility of the accusation (such as whether T ever saw the appellant in the room at all⁴, the general sequence of events including when the girls went to the toilet and whether further offending occurred after that), I am not able to determine that DM was proved beyond reasonable doubt to be guilty of any of the offences. That is a matter for determination after seeing and hearing both the complainants, and DM (if he is called on a re-trial).

Accordingly, I would set aside all convictions, and order a re-trial on those counts. The evidence is capable of supporting a conviction on each, although a genuine question mark exists regarding Count 8. That is because J was ultimately uncertain in cross-examination whether or not DM actually entered the room a fifth time. It will be a matter for the director whether or not it is appropriate to prosecute DM again, in light of the period in custody already served.

McMURDO J: In September 2005 the appellant was tried upon eight charges. He was acquitted on one charge of indecent treatment of a child under 16 and he was convicted upon three further charges of that offence and four charges of rape.

He appeals against each of those convictions upon the same grounds. The first is that a guilty verdict was not open to the jury. The second is that, he says, a certain juror was perverse which contaminated the jury’s determinations. The third is that the trial judge did not give the directions said to have been necessary in relation to the medical evidence. The fourth is that the trial judge did not direct the jury as was required by s 21AW(2) of the Evidence Act 1977 (Qld).

The omission to direct the jury at all in respect of s 21AW is conceded by the respondent. Indeed it was the respondent’s counsel, Mr M J Copley, who quite properly drew the court’s attention to the point. But he argued that the convictions should stand through the operation of the proviso in s 668E(1A) of the Criminal Code 1899 (Qld).

I have concluded that the only ground which is made out is that which is admitted: the s 21AW ground. I have also concluded that the proviso should not be applied, so that the convictions should be quashed and a re-trial ordered. However, because other grounds, particularly the first ground, would warrant an acquittal if it were established, it is necessary to consider them before returning to s 21AW.

Were the verdicts open?

There were two complainants. One was T, who was the appellant’s step-daughter and who was aged 12 on the night in question, 22 July 2003. The other was her friend J, who was two years younger. The first count on the indictment alleged the indecent treatment of J on a certain occasion when she was staying overnight in the house where the appellant lived. The jury acquitted on that charge. The other charges were alleged to have been committed subsequently but in the course of the one night, in that same house when again, J was staying overnight. Two of those counts (numbered 4 and 5 on the indictment) involved the indecent treatment of T. The others, being four counts of rape (numbered 3, 6, 7 and 8 on the indictment), and a count of indecent treatment (count 2) involved J.

In this house lived the appellant, T’s mother, T’s sister and brother and a man aged 82. The prosecution case was that the appellant committed these offences in the course of five visits to the room in which the girls had been sleeping, in the same bed. The first visit was the subject of count 2. J said that whilst T remained asleep, the appellant kissed her, inserting his tongue into her mouth, and then touched her in the area of her vagina. He then left the room after which J woke T.

The next visit was the subject of counts 3 and 4. The appellant was said to have pulled down J’s pants and put his finger in her vagina. This is the first of the rape convictions. Before he had left the room he was alleged to have committed count 4, the indecent treatment of T, by placing his hand on her buttock and rubbing it inside her track pants. He then left the room.

He was then said to have come back on a third visit and to have committed counts 5 and 6. Count 5 involved his rubbing T’s buttock and then sliding his hand under her shirt and rubbing her breast. Count 6 was another alleged instance of his placing his hand under J’s clothing and inserting a finger into her vagina.

Counts 7 and 8 involved two further visits to the room, in each of which he again inserted his finger into J’s vagina.

T was interviewed by police on the next day, 23 July 2003. The video-tape of that interview was tendered under s 93A of the Evidence Act 1977. T also made a written statement on the same day. J was interviewed by police on 24 July and 27 August 2003, and the video-tape of each interview was tendered under s 93A. The evidence of each complainant was pre-recorded at preliminary hearings conducted pursuant to Part 2 Division 4A of the Evidence Act 1977. T’s evidence-in-chief and cross-examination took place on 18 January 2005 when she was aged 13. J’s evidence was pre-recorded on 11 November 2004, when she was aged 11.

The other prosecution witnesses were T’s mother (the appellant’s wife), J’s mother, an investigating police officer and a doctor who produced some notes of a colleague of that doctor’s examination of J. The appellant elected to give evidence. He denied that he went into the girls’ room at all.

The complainants were not cross-examined to the effect that they could have mistaken someone else for the appellant. Nor does it appear that the jury was asked to consider that possibility by the appellant’s counsel: the summing up does not refer to it and there is no complaint in that respect.

The appellant refers to a number of features of the prosecution case which he argues, at least considered cumulatively if not individually, make each of the guilty verdicts one which was not open.

The first relates particularly to count 8. When interviewed by police, J said that there were five occasions on which the appellant entered the room and on which she was subjected to the conduct which I have described. When cross-examined (on 11 November 2004) she said that she could not remember whether the appellant came into the room four or five times. In effect, the jury had to conclude that there were five visits before they could convict of the fourth count of rape, count 8. But it was open to them to find that there were five visits, by preferring the evidence which J gave soon after the event, when speaking to police, to that given late in the following year, in the preliminary hearing.

The next point concerns J’s evidence that in the girls’ bedroom there was a reflection of light “off the fire place” because the fire “was going” that night. This was contradicted by the evidence of T’s mother who said that there was a fire place but no fire on that night. This is said to be an inaccuracy in J’s evidence. But could also have been a mistake in T’s mother’s evidence. And if J was wrong, it would not of itself, or taken together with the other matters argued, show that the jury should have rejected the substance of her evidence.

Then there is the difference between some evidence of T and some evidence of her mother, as to what the girls had told her on the morning after. T’s mother gave this evidence:

“(T) told me that M (the appellant) had gone into the room and that he had touched her backside and her boob. She also told me at one point that she thought (J) was out of the bed and laying on the floor. (The appellant) had played with her on the floor and I asked her did she hear it, did she see anything and she said, “No”. (J) also told me that (the appellant) had pashed her and I asked her what a pash was. She explained, “you know what it is”. I said, “No, tell me”. She explained that (the appellant) put his tongue in her mouth and that it was yuck and (J) also told me that she had heard something banging on the floor and she thought it was his thing back banging on the floor, as he was sitting on the floor with his legs under the bed.”

When cross-examined at the preliminary hearing, J disagreed with much of that and she said that she did not “go into any detail with Mum about what happened”. But again, the jury might have rejected the adult’s evidence on the point and accepted that of the child.

Next there is the medical evidence which, as I have mentioned, is also the subject of what is said to be a further ground. A Doctor Mahoney was called to produce some notes taken by another doctor, Doctor Cadzow, who had examined J. She had conducted a genital examination and an examination of the anus. Each examination was noted as normal. Doctor Mahoney was then asked by the prosecutor:

“Can I ask you from your – from the notes you’ve read and from your own experience, can you comment on the consistency or the inconsistency of the observations noted by Dr Cadzow?”

Objection was taken and after some argument in the absence of the jury, Doctor Mahoney was then further examined by the prosecutor in the jury’s presence. He was asked some questions about his experience of patients, particularly children, who were victims of sexual assault, before being asked “whether he felt that he had a sufficient expertise to comment upon the records that you have presently been asked to comment upon.” His answer was:

“Just basically shows that this examination is a normal examination and so it’s not helpful one way or the other in resolving this matter.”

There was then a further debate in the absence of the jury, this time at the prosecutor’s request. After the jury returned, the prosecutor asked Doctor Mahoney whether an observation of “normal” in the context of the examinations which had been undertaken, was “consistent or inconsistent with an allegation of digital penetration approximately seven days earlier?” The response from Doctor Mahoney was that it depended upon a number of things, such as the size of the penetrating object, the amount of the force used, the state of the local tissues and the frequency of the assault. He then said that in the absence of any noted abnormality in this case neither confirmed nor negated the alleged assaults.

The appellant’s counsel did not cross-examine. But the trial judge then asked some questions of Doctor Mahoney. His Honour referred to the allegation that there was digital penetration “five times in the course possibly of half an hour maybe”, before asking whether “the frequency of the penetration increases the likelihood that there would be evidence left of the assault?” Doctor Mahoney answered “yes” to that, which effectively repeated what he had said in answer to the prosecutor.

When summing up, the trial judge summarised this evidence and commented that there was nothing in it which “in any way advanced the Crown case”. After the jury retired, the prosecutor queried that comment but sought no redirection. The jury had retired at 12.43 p.m. and by 5.18 p.m. they raised this query:

“Do we have to take the medical evidence of (Doctor Mahoney) into any merit (sic) being that it neither supports nor disproves the rape allegation and also confirm your directions to us in relation to the medical evidence.”

When the jury returned at 5.30 p.m. his Honour again redirected that the medical evidence did not advance the Crown case at all. He then added:

“The defence, of course, submit to you that it is an important factor which you may take into account which may indeed raise a doubt in your mind as to whether (J) can be believed when she says she was penetrated on four separate occasions within a short time of one another on this particular night.”

He then read from the transcript of Doctor Mahoney’s evidence, before telling the jury that there was nothing in this evidence which confirmed J’s evidence and (again) reminded them of the defence argument that the absence of any findings by the examining doctor was something which might raise a doubt.

This medical evidence is relevant then to two grounds of appeal. First it is said that it at least furthers the argument that guilty verdicts were not open. The submission is that this evidence not only failed to support the prosecution case but it diminished it. In the trial judge’s questions of Doctor Mahoney, and in his further direction on this evidence, there is some indication that his Honour thought that the prosecution case was diminished by it. Be that as it may, the evidence neither supported nor diminished the prosecution case. It does not support the present argument that the verdicts were not open.

There is what is said to be an alternative ground of appeal, which to the extent that it is distinct from the unreasonable verdicts ground, seems to offer some faint criticism of the summing up and redirection upon Doctor Mahoney’s evidence. But there was no disadvantage to the defence case in anything his Honour said on this subject. The ground or grounds of appeal, insofar as they rely upon the medical evidence, are not established.

The next point in support of the first ground of appeal concerns the evidence as to the lighting in the room. As already mentioned, there was no issue about identification. The issue was whether these things happened, not whether if they happened, they involved the appellant. T’s mother said that there would have been very little light. J said that although the room was “fairly dark” nevertheless “… in the dark you can just see things”. There was a light from a CD player as well as the light she said was coming from the fireplace. In the context of this case, any difference between the witnesses on this subject was not significant.

Next the appellant suggests some discrepancy between the evidence of T and her mother as to the events of the following morning, in respect of T’s sister. T suggested that she was with T and J before T’s mother awoke. T’s mother said that the sister was with her when T and J came into her room. Again, the difference need not have been regarded as significant.

The appellant then points to some discrepancy between the respective accounts of the complainants as to whether the appellant said anything in the course of his visits. T said that she did not know who had entered the room. She said that when she was touched she was lying face down. She did recall another occasion in which the appellant came into the room and asked what was wrong when she told the appellant that she had had a bad dream. According to J’s evidence, the appellant was saying things to her as he committed count 4, which was on the same visit as count 3 committed against T.

T said that at one point the appellant entered the room and turned on the light and asked why they were crying, offering to get them a glass of water. She said that she and the appellant went to the kitchen where he poured some water. This was at odds with the evidence of J who said that the appellant left the room and brought water back to them.

Next the appellant points to the difference between T’s evidence that a person came into the room twice, and J’s evidence that the appellant came in on five or perhaps four occasions. This is related to the evidence of whether the girls stayed awake for some time after the visits and when they each went to the toilet. T said that after she had her drink of water, and after J had been to the toilet, she went to the toilet and J then came with her. On their way back to their bedroom they passed the appellant who was in the kitchen doing some housework. T said they then went back to bed and stayed awake until 1.30 a.m. the following morning. So on this version, the toilet visits and the drinks of water were after the last of the offences was committed. On one view of J’s evidence, these things took place between the visit the subject of counts 5 and 6 and the visit the subject of count 7. However, at another point J had said the toilet visits were after all of the acts in question.

The fact that T recalled two visits, and J four or five visits did not undermine the prosecution case. Some visits might have occurred whilst T was asleep. As to the points in relation to drinks of water and toilet visits, these were matters which were relevant for the jury, but they do not strongly suggest that the jury should have rejected the evidence of each complainant as to what was done to her.

In all of this there was some apparent inconsistency then between the respective accounts of the complainants. But it is not at the level which must have caused the jury to have been left in doubt. It is not unlikely, the jury might have thought, that one or both girls was not completely correct in her evidence, although each was truthful and reliable in all essential respects.

So far I have discussed the points advanced in the appellant’s extensive written submissions, some of which were also the subject of oral argument. But then there were some other matters advanced by the appellant going to this first ground of appeal. One is that the fact that the complainants woke up the next day and began to play with T’s sister was said to be inconsistent with their having suffered these acts upon them on the night before. Secondly, reference was made to something which occurred in the cross-examination of J on 11 November 2004, in which J said to counsel cross-examining her that a particular question was “a good one” and asked him “where did you get that?”. It is said that that is inconsistent with what would be expected of a young girl who had been assaulted in this way. (This was, of course, well over a year from the night in question and after the complainant had already given extensive and recorded accounts).

Then it was said that the demeanour of the complainants, when interviewed by police, was too calm for children who had undergone what they had claimed. This argument seems to be that the court could, by looking at the video recording of the police interviews of the complainants, judge by their demeanour that a guilty verdict was not open. This was not because seeing the video recording would show that the witness was not intending her evidence to be taken seriously. Rather it was simply that this court could not fail to be impressed, as the jury should have been, that neither girl was in a traumatised state which, it is said, must have been manifest had these things occurred. For a tribunal of fact, the demeanour of a witness may or may not provide a useful indication of credibility or reliability in a particular case. In some cases demeanour may have no part to play. In others a juror could be reasonably affected by it. In some cases, different jurors might be impressed differently by a witness’ demeanour: possibly one juror might see it as indicating something quite different from that perceived by another juror. In such matters of impression, reasonable minds could differ as to whether an apparent calmness belied what the child was saying. So whilst demeanour can be important, and the particular demeanour of the complainants on these occasions could have been important to this jury, it is another thing to say that in this case, the jury had to be impressed by the complainants’ demeanour, and in a way which left them unpersuaded of the prosecution case.

The jury acquitted on count 1. But that is not inconsistent with an acceptance of J’s evidence on the other counts. Count 1 involved quite a different occasion and was not the subject of any timeous complaint. The appellant also sought to rely upon a series of letters written to him, after he was convicted but before he was sentenced, by T. These are in friendly terms but they do not recant her evidence.

The various matters raised by the appellant, even when considered together, do not make this prosecution case one which the jury had to reject. It was open to the jury to accept the substance of each girl’s evidence which was that she was dealt with in particular ways by the man who entered their room on that night. I have mentioned the inconsistencies raised by the appellant. But more generally the evidence of each complainant was internally consistent and largely consistent with the evidence of the other. In my conclusion, each of these verdicts was open to the jury.

Grounds 2 and 3

The jury retired at 12.43 p.m. At about 5 p.m. the trial judge received a note from a juror, asking that he be discharged because he wanted to attend his own engagement party that evening. In the absence of the jury this note was discussed with counsel. The appellant’s counsel submitted that s 56 of the Jury Act 1995 (Qld) did not empower the judge to discharge the juror in these circumstances. The prosecutor seemed to agree with that submission. The trial judge agreed and decided not to discharge the juror. He said that no sufficient reason for the juror’s discharge had been shown “at this stage”. It seems that the judge’s decision was left to be communicated to the juror by the bailiff.

At 5.30 p.m., the jury returned for some redirections, including that in relation to medical evidence. From 7.47 p.m. to 8.47 p.m. they received further directions and it was not until 10.04 p.m. that the court convened to receive the verdicts. Accordingly some five hours at least passed from the time of the juror’s request until they concluded their deliberations.

From these events the appellant submits that the juror who made the request could have been so affected by his wanting to attend his own engagement party that he did not apply himself diligently and moreover, that he affected the deliberations of other jurors. It is suggested that this may have resulted in some compromised verdicts, represented by the acquittal on count 1 and the convictions on other counts.

As I have said, the different verdicts have another and obvious explanation. The time which expired between the juror’s request and the verdicts, together with the jury’s request for extensive redirections within that period, indicate that the jurors did apply themselves diligently and that the result was not affected as the appellant suggests. In my view this ground has no merit. In any case it would warrant a retrial, not an acquittal.

Section 21AW

Division 4A of Part 2 of the Evidence Act 1977 provides for evidence to be given by a child who is not a defendant in the proceeding. Within that regime is Subdivision 3 which provides for the pre-recording of a child’s evidence as occurred in the case of each of these complainants. It was by s 21AK that their evidence was taken and video-taped at a preliminary hearing presided over by a District Court judge. It was by s 21AM that the video-tape recording of the preliminary hearings became admissible in the trial before the jury, as if the evidence had been given orally in their presence.

Section 21AW provides as follows:

“21AW****Instructions to be given to jury

(1)This section applies to a proceeding on indictment if any of the following measures is taken—

(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;

(b)a person is excluded under section 21AU while an affected child gives evidence;

(c)an affected child has a support person under section 21AV while the child gives evidence.

(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lesser weight because of the measure.”

The children’s evidence was taken in a way provided for under Subdivision 3, by a video recorded preliminary hearing. For that reason the trial judge was required to instruct the jury according to s 21AW(2). But none of those instructions was given. In this case there is no argument by the prosecution that such directions, as were given, did meet the purpose of s 21AW. It seems that neither trial counsel nor the trial judge adverted to the requirements of this provision, notwithstanding the reference to it in the Queensland Supreme and District Courts Benchbook.⁵ In certain cases it may be appropriate for a trial judge to expand upon the clear words of the section. But in this case what was required were simply directions in its terms.

In consequence the proceeding was affected by an apparently serious irregularity. The jury had to assess the evidence of the complainants without the benefit of directions which the law prescribes as necessary for that exercise. As counsel for the respondent rightly accepted, the question then becomes one of the application or otherwise of the proviso. The irregularity is such that the appeal should be allowed unless this court is satisfied that no substantial miscarriage of justice has actually occurred and that the appeal should be dismissed.⁶

The proviso

The operation of the proviso is the subject of the High Court’s recent judgment in Weiss v The Queen.⁷ It was there held that where the proviso falls for consideration, because an appellate court has decided that there was some irregularity at the trial, the appellate court is not to attempt to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. The court’s task is to decide whether a substantial miscarriage of justice has actually occurred.⁸ That task is to be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict.⁹

The High Court said that no single universally applicable description of what constitutes “no substantial miscarriage of justice” could be given, but one negative proposition could be stated:

“It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.”¹⁰

It is then incumbent upon the prosecution to persuade this Court, beyond reasonable doubt, that the appellant was guilty. Whilst this Court must consider the whole of the record of the trial including the fact of the guilty verdicts, it is for this Court to be satisfied not that the appellant could have been found guilty, but that he is guilty (upon the evidence properly adduced at the trial).

Whilst regard is to be had to the fact that the jury returned guilty verdicts, the weight to be given in this case to the verdicts is relatively slight. This is because the verdicts were given without the directions which the law regards as necessary for the proper evaluation of evidence which is given as the complainants’ evidence was in this case.

The evidence to be considered at this point is not simply that given by the complainants. It includes that given by other witnesses and most importantly for the present question, by the appellant himself. The disadvantage for this court in making its own assessment of the evidence is that whilst it has the video recorded evidence of the complainants, it has merely a written record of the evidence of the appellant and other witnesses. For reasons which will appear from the earlier part of this judgment, the evidence of T’s mother is important because of the respects in which it differed from that of one or both of the complainants. The jury were not obliged to accept it when it conflicted with the evidence of T or J. But this court would have to consider that issue without seeing T’s mother’s evidence being given, where the appellant would say that her evidence is preferable and discredits the complainants’ accounts. Most importantly, this court is at a disadvantage in not having seen the appellant give evidence. That is not to say that his demeanour would or would not be persuasive. Rather it is that for all this Court knows, it might have influenced this Court in his favour.

There is a disadvantage then in the assessment by this court of the evidence of the appellant and at least one other witness. A disadvantage of this kind was anticipated in Weiss where the court said:¹¹

“The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.”

I have not viewed the video recordings of the complainants’ evidence. If I did so, I might have an impression from them that the prosecution case was stronger than appears from the transcripts. But to then conclude that the appellant was guilty, without having the same (possible) assistance in the assessment of the appellant’s evidence, would be unjust. And it is not argued that in this case, the defendant’s version is so inherently unbelievable, or from other evidence so demonstrably false, that it can be safely rejected from reading of the written record.

Ultimately, this case is an example of where the natural limitations of the appellate proceeding prevent the appellate court from reaching the necessary degree of satisfaction of the appellant’s guilt. It cannot be concluded that there is no substantial miscarriage of justice which has occurred.

I would allow the appeal, quash each of the convictions and order a re-trial.

Footnotes

1. Mr Copley cited R v TN (2005) 153 A Crim R 129 per Keane JA at [87]. ↩

2. Evidence (Protection of Children) Amendment Act 2003 (Qld), s 60. ↩

3. Weiss v The Queen [2005] HCA 81 at [39] and [41]. ↩

4. See page 186 lines 10-20 and 203 line 20 of the record of pre-trial proceedings. ↩

5. Direction No 10.2 ↩

6. Section 668E(1A) of the Criminal Code ↩

7. [2005] HCA 81 ↩

8. [2005] HCA 81 at [35] ↩

9. [2005] HCA 81 at [43] ↩

10. [2005] HCA 81 at [44] ↩

11. [2005] HCA 81 at [41] ↩