R v F [1994] QCA 537

On 21 March 1994 the appellant was interviewed at her school by an officer of police and an officer of the Department of Family Services, a Mr Jeanneret, in the presence of two school teachers. The interview was recorded on two tapes, which were admitted in evidence at the trial as ex. 1. Speaking generally, the effect of what the complainant said in the course of the interview was that, when she was in the bed talking to F in the mornings, he pulled her pants down and put his fingers in her vagina, which she said "happens lots of times a week". Asked to remember the last time she was in the bed talking to F, she said it was "a long time ago" - about "last week" - "about Monday or Tuesday". She said that F was wearing his tartan pyjama shorts; but, she added, "it didn't happen last Monday or Tuesday" The interviewer went on:

"Okay. Nothing happened last Monday or Tuesday, all right. So, can you - can you remember the last time when something happened? --- No.

Was it - the last time something happened, would it have been a school day or a holiday? --- I don't know."

In an attempt to identify "the last time that this might have happened", the interviewer asked her again to remember the "very last time" something happened, and "what F did to you that day". Her answer was "the same thing".

At the time of the interview the complainant was in grade 4 at school. When asked about the first time it had happened, she said it was in grade 3 and she was living in the same house at Forest Glen. It was in the middle of the year because she knew it didn't start at the start of the year, and it was after her birthday, which was 3 April. The complainant was then asked again to think back to the last time something happened. She said it was about three weeks ago, "when he wasn't working ... because it was raining". The appellant is a house painter, and the complainant knew the name of one of his employers, but could not say who it was he was working for at the time something last happened, or whether it was a week day or on a weekend.

After the appellant had been arraigned at his trial, counsel for the defence asked for particulars of the acts constituting the indecent dealing in each count. After some debate, counsel for the Crown, referring to transcripts of the taped interview on 21 March 1994 with the complainant (ex. 1), elected to proceed on the first and last of the occasions on which the complainant had said she had been indecently dealt with. The result was summed up by the trial judge as follows:

HIS HONOUR: They're all the same every time they occurred, so the Crown has said, "Well, we'll select the first occasion which she says was, 'After my birthday last year'. And we'll select the last occasion which was an occasion the accused didn't go to work and was about three or so weeks prior to the recorded interview."

Despite protests from counsel for the defence, evidence was then led in support of the Crown case. In addition to the tapes (ex. 1),and a taped record of the interview with the school friend to whom the complaint had been made, those present at the interview were called and testified at the trial, as did the complainant herself, her mother, her school friend, and a medical practitioner who examined the complainant on 19 April 1994. On inspection he found a posterior healed split in the rim of the hymen, into which he was able to insert the tip of his little finger with minimal discomfort to the complainant. He could say of it only that it had happened more than a month before and that it was consistent with having been caused by finger pressure, but that it could have happened in many innocent ways.

The appellant made no admissions when interviewed by police, and he did not himself give evidence at the trial. For present purposes the only evidence that matters is that given by the complainant herself at the trial. When asked what had happened, she said "F put his fingers into my vagina". The evidence went on:

--- that you're talking about. You say that F put his penis [or fingers] into your vagina. When did that happen? ---- I don't know when it started. Some time last year.

Some time last year. If you think about your birthday, was it before your birthday or after your birthday last year? --- I can't remember.

Can you remember whether it was during grade 3? --- I can't remember.

It was some time during grade 3, was it? And how many times in grade 3 did that happen, do you know? --- No.

Can you say roughly how many times it happened ? --- No.

Can you go to - can you tell us about one time that it happened in grade 3? Where did that happen? --- In the bed.

The complainant then went on to recount that she and J used to go into the bedroom and play games on the bed with her mum and dad and that, when mum went out to make the breakfast and the complainant was under the covers, he would pull her pants down and put his fingers into her vagina.

After reminding her that she had said this had happened during grade 3, the Crown prosecutor asked:

"And do you remember the Christmas holidays, the school holidays? --- Yes

And then you were into grade four then, eh? --- Yes.

Is there any particular day that you can remember, that it happened? --- No.

Can you say how many times it happened, during grade four? --- No.

Did you tell anyone that this was happening? --- Yes."

The verdicts against the appellant were Guilty on each of the two counts. What has been set out above represents the whole of the evidence on which the two counts, particularised by the Crown as the first and the last occasions, could have been based. It is plain from those extracts that, so far as the complainant's oral evidence at the trial was concerned, she was unable to identify either the first or the last occasion on which she had been indecently dealt with. Summarising it, she said that F had put his fingers in her vagina while she was in the bed with him and that he had done so more than five times last year (which was 1993), but she "didn't know when it started" other than that it was "some time last year", but did not know whether it was before or after her birthday on 3 April 1993. It was the date that had been chosen as the beginning of the period (which ended on 31 December 1993) in count 1 during which she was alleged to have been dealt with "on a date unknown". Likewise, although she said "it" had happened more than once during grade 4, she could not remember any particular day on which it had happened. The period covered by count 2 ran from 1 January to 21 March 1994, which was the date on which she was interviewed at the school.

Considering only the complainant's evidence at the trial, the Crown failed to prove that the appellant had indecently dealt with her on either the first occasion or the last occasion particularised. Counsel for the defence submitted that there was no case to go to the jury, but the submission was overruled. The only other evidence was that contained in the taped interview (ex. 1). As to that, it will be recalled that the complainant had identified the first occasion as having been after her birthday on 3 April 1993, and the last as being "about three weeks ago when he wasn't working". Apart from this, the only evidence of substance was to the effect that the acts of indecency had occurred frequently.

The appeal raises in acute form the effect of the decision of the High Court in S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266. There the accused had been charged and convicted in Western Australia of three counts of unlawful carnal knowledge of his teenage daughter on dates unknown. The first count charging a single act of carnal knowledge was alleged to have been committed during the calendar year 1980; the second during the year 1981; the third covered the 12 month period from 8 November 1981 to 8 November 1982. At the trial the complainant gave evidence of the first occasion of sexual intercourse, and also said that further such acts had taken place "every couple of months" in each year for two years until she left home in November 1982. The trial judge refused an application for particulars of the charge to which each count related.

The High Court quashed the convictions. Brennan J. dissented on the ground that there had been no miscarriage of justice within the meaning of the proviso in the equivalent of s.668E of the Code in this State. The other learned justices held, however, that there had been a breach of the fundamental requirements of procedural fairness, which the proviso could not be used to cure. Their Honours' reasons varied to some extent, but there is much common ground. On the authority of Johnstone v. Miller [1937] HCA 77; (1937) 59 C.L.R. 467, 489, Dawson J. (at 274-275) and Toohey J. (at 279-282) held that the prosecution ought to have been required to identify the occasion on which each of the offences charged was alleged to have taken place [1989] HCA 66; (168 C.L.R. 266, 274, 282). Also on the basis of Johnstone v. Miller, Gaudron and McHugh JJ. (at 284-285) were disposed to regard the charges in each count as duplicitous, ambiguous or uncertain; they too considered that the offences alleged ought to have been particularised or identified (at 288). So also, it would appear did Brennan J. (at 271-272), who, however, differed from the other members of the Court concerning the extent of the prejudice that would have resulted to the appellant in conducting his defence at the trial.

In identifying the procedural unfairness arising from lack of specificity, their Honours referred to a variety of factors. One was that the accused would have been precluded from raising specific defences such as alibi [1989] HCA 66; (168 C.L.R. 266, 275, 286); or autrefois acquit or convict (at 276, 280-281, 284-285), although Toohey, Gaudron and McHugh JJ. acknowledged that this factor was less cogent in a State with a provision like s.17 of the Code (W.A. and Qld.). Another matter emphasised was the difficulty for the trial judge of explaining in summing up to the jury the distinction between evidence which directly proved each of the acts charged as offences, and evidence of other similar acts admitted merely to establish the existence of a relationship or "guilty passion" [1989] HCA 66; (168 C.L.R. 266, 275, 279, 289). Their Honours also recognised the risk that, in arriving at their verdict of guilty, different members of the jury might have identified different occasions as constituting the relevant offences; or, more likely, that they had convicted on the basis of what they perceived to be a general disposition on the part of the accused to commit offences of that kind (at 276, 283, 287-288).

The decision in S. v. The Queen was followed in Podirsky v. The Queen (1990) 3 W.A.R. 128, and again in R. v. S. (1992) 58 S.A.S.R. 523. Not all of what was said in any of those three cases is directly applicable here, where the acts alleged to constitute counts 1 and 2 were specifically identified as the first and the last occasions of indecent dealing. Considered in the abstract, it would seldom be helpful to identify an act or event simply as the first or the last in a series. To an accused person who is innocent (as some are, and all are presumed to be), the first occasion or the last occasion would be meaningless. In the present case, however, the identifying particulars given by the prosecution were not provided in such an abstract a form. In the context in which they were furnished shortly after the arraignment, it is clear that prosecuting counsel was relating the two offences charged in the indictment to material in the transcript of the taped interview (ex.1) with the complainant on 21 March 1994. In the case of the second offence he specifically identified the passage by reference to the page and line of that transcript to which he was referring. He did not do so in the case of the first charge, but he referred to it by quoting words from the transcript that could not have left any doubt about the part that was being relied on. The two offences were, as his Honour confirmed after hearing counsel refer to the transcript: (1) the occasion after the complainant's birthday in 1993; and (2) the occasion about three weeks before the recorded interview on 21 March 1994 when the appellant did not go to work because it was raining.

In this respect the present case therefore differs from S. v. The Queen, Podirsky v. The Queen, and R. v. S., where no attempt at all was made to identify the particular offence charged in each count with any event, act, or occasion. In summing up to the jury at the trial, his Honour was careful to isolate the two offences they had to consider. The jury had been given a copy of the two charges in the indictment, and at the beginning of his summing up, the learned judge said:

"Those are the two charges which you are trying. At the outset of this trial, the Crown Prosecutor indicated to the Court that the first count or charge, the one during 1993, related to the first occasion [the complainant] said this occurred. In the interview with the police officer and Jeanneret, she said that was after her birthday. Here, she was unable to say whether it was before or after her birthday, but she said it was during last year, her grade 3 year. The Crown Prosecutor also specified that the second count or charge related to the last occasion this occurred, according to [the complainant]. And in the interview with Jeanneret and the police officer, she spoke of the last occasion being roughly some three weeks or so prior to the interview."

The question remains whether the level of particularisation or identification achieved was sufficient in the circumstances of this case. In respect of the charge in count 1, we do not think it was. The offence it charged was alleged to have occurred within the period extending from 1 January to 31 December 1993, or at least from 3 April 1993, during which indecent dealings were said by the complainant to have taken place "more than five times". None of those five or more occasions was identified or identifiable by reference to any distinguishing fact, matter or event. In referring, in S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266, 286, to evidence which showed a number of acts of carnal knowledge which were said to have been repeated at two-monthly intervals over a period of one year, Gaudron and McHugh JJ. said:

"... the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularised nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance".

The same criticism or complaint may fairly be levelled against the offence charged in count 1 in the present instance. Its designation as "the first occasion" did not enable it to be identified by referring to any objective external fact or event and did nothing to diminish the difficulties apprehended by their Honours in similar circumstances in S. v. The Queen.

The absence of any particularity capable of identifying the acts constituting the offence charged in count 1 did not necessarily extend to the offence charged in count 2. The occasion on which it was alleged to have been committed was identified from the transcript of ex. 1 as being "about three weeks ago" (i.e. before the interview on 21 March 1994), and as having happened at a time when the appellant was not working because it was raining. It is true that the utility of the identification depended at least in part on how long the applicant was off work while it was raining; and that the complainant had said it happened "more than one time" during grade 4. But she also said it was "about three weeks" before the interview on 21 March 1994 that it had last happened, and she was speaking of a morning during the period running from the Christmas holidays, when she was in grade 4. The occasion in question therefore fell within a comparatively recent off-work period during the months of January and February 1994.

To identify the occasion in that way ought to have enabled the appellant to defend himself at the trial against that charge. Permitting the Crown to proceed within those limits in reliance on the evidence in the taped interview fell fairly within the ambit of a proper exercise of the discretion in ordering particulars that is conferred by s.573 of the Criminal Code. Count 2 was therefore sufficiently identified.

That is, however, not necessarily enough to save the conviction on count 2. As has been mentioned, the majority in S. v. The Queen stressed the need for the trial judge to explain to the jury the use to which evidence of similar acts, facts or events might be put in deciding whether the offence was proved. S. v. The Queen (1989) 168 C.L.R. 268, 275, 279, 289. In R. v. Beserick (1993) 30 N.S.W.L.R. 510, 515-516, Hunt C.J. at C.L. referred to the discretion of the trial judge to exclude such evidence in the exercise of discretion where it is of a highly prejudicial nature. His Honour went on (30 N.S.W.L.R. 510, 516):

"If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury ... as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."

Cf. also Podirsky v. The Queen (1990) 3 W.A.R. 128, 136. The use to which evidence of sexual activity other than that charged may be put is discussed in Hoch v. The Queen [1988] HCA 50; (1988) 165 C.L.R. 292.

In the present case no such warning was given, or explanation provided, about the purpose of the evidence concerning the acts of indecent dealing apart from those directly related to the offences charged. All that was said on the subject by the trial judge in the course of his summing up was:

"She said during her evidence that those were not the only two occasions that it occurred, that there were a number of occasions in-between. You will recall her evidence about that. There are no charges relating to any of those other in-between occasions that she spoke of. What the prosecution has done is selected two charges, one of which it says related to the first time this occurred, and the other relates to the last time it occurred, and is charged - only the two charges. There is nothing wrong in that. It is simply a process of selecting two, in this case, representative charges."

On appeal, some criticism was directed to the use of the expression "representative charges" in this passage of the summing up. The English practice with respect to "sample" counts is discussed in (1981) Crim. L.R. 510 and R. v. Cooksley [1982] Qd.R. 405, at 415 et seq. There is nothing of which we are aware that, as a matter of criminal procedure or practice at the trial of an offence or offences, authorises the presentation of a particular charge as being "representative" of other offences of the same kind of which evidence is led. In the absence of a clear direction as to the function of evidence concerning other acts or offences, the use of that expression in the summing up would, we think, have added to the impression that the appellant had committed and was being tried for the same offence on many occasions, and that the Crown had simply chosen two of them to be the subject of formal charges. It would thus have encouraged the jury to reason that, if the appellant engaged in acts of indecent dealing on many unspecified occasions, he must have done so on the two occasions charged, which would involve finding guilt on the basis of propensity. The risk of that occurring in the case of count 2 in the present case was likely to have been increased by the fact that the Crown had not objectively identified the occasion on which the offence charged in count 1 was alleged to have occurred.

The problems confronting the Crown in prosecuting offences of this kind were emphasised in the course of argument before us. The difficulties were acknowledged in S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266, 275, where Dawson J. said that an accused person was nevertheless "not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness". See also observations to similar effect of Gaudron, McHugh JJ., at 288. As was recognised in Podirsky v. The Queen (1990) 3 W.A.R. 128, 136, difficulties of proof increase with the number of acts of sexual intercourse or other abuse involved. The more there are, the more difficult it becomes to establish that any one of a series of multiple offences has been committed. It was no doubt in order to meet problems of that kind that s.229B of the Code was enacted making it an offence to maintain an unlawful relationship of a sexual nature with a child. It will be noted that under that section the Crown must prove that an act was done, on three or more occasions, of such a kind as to constitute an offence of a sexual nature in relation to the child, but the evidence need not "disclose the dates or the exact circumstances of those occasions".

We were pressed with the problems that would arise in a case in which the accused had made a full confession of multiple offences of this nature but there was nothing to enable any of those occasions to be identified. It may be that such a case is one in which the judicial discretion under s.573 of the Code to order particulars might not be exercised in favour of the accused. It is, however, not necessary to resolve the point on this appeal because the appellant made no such admissions here.

It was acknowledged by counsel for the Crown on the appeal that the complainant's evidence was not likely to improve at any future trial. However, that concession was made on the assumption that the occasion of the act charged as count 2 was not sufficiently identified. We have now decided that it was. The complainant's statement concerning that incident given in the course of the taped interview (ex. 1) would be available and admissible at any further trial of the appellant on that charge. In the circumstances we consider that the proper order is that, in respect of count 1 in the indictment, the appeal should be allowed, the conviction set aside, and judgment of acquittal entered on that count. In respect of count 2, the appeal will be allowed and the conviction set aside. A new trial is ordered of the charge in count 2 of the indictment.