R v FP [2007] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION: R v FP [2007] QCA 97

PARTIES: R / v / FP / (appellant)

FILE NO/S: CA No 336 of 2006 / DC No 112 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Mount Isa

DELIVERED ON: Orders delivered ex tempore on 14 March 2007 / Reasons delivered on 30 March 2007

DELIVERED AT: Brisbane

HEARING DATE: 14 March 2007

JUDGES: Jerrard JA and Muir and Douglas JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the applicant was convicted for unlawfully and indecently dealing with a child under the age of 12 – where the sentencing judge failed to direct on preliminary complaint and on hearsay – whether these misdirections resulted in a miscarriage of justice / Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A / Evidence Act 1977 (Qld), s 93A, Pt 4A / Dhanhoa v The Queen (2003) 217 CLR 1, applied / Jones v The Queen (1997) 143 ALR 52, applied / R v Cox [1986] 2 Qd R 55, applied / RPS v The Queen (2000) 199 CLR 620, applied / TKWJ v The Queen (2002) 212 CLR 124, applied / Weiss v The Queen (2005) 224 CLR 300, applied

COUNSEL: T D Martin SC, with J R Hunt for the appellant / M J Copley for the respondent

SOLICITORS: Anderson Telford Lawyers for the appellant / Director of Public Prosecutions (Qld) for the respondent

JERRARD JA: On 1 December 2006 FP was convicted by a jury on a count alleging that on a date unknown between 31 December 1999 and 1 May 2000 at Cloncurry he unlawfully and indecently dealt with a child then under the age of 12 years. He was sentenced that day to 12 months imprisonment. He appealed against his conviction, alleging it is “unsafe and unsatisfactory”, and asked for an extension of time within which to apply for leave to appeal against sentence, and within which to add further grounds of appeal against his conviction. He was given that leave. Those further grounds of appeal complain that the learned trial judge erred in failing to direct the jury as to the use to be made of preliminary complaint evidence. They also complain that a miscarriage of justice resulted from the wrongful admission of hearsay evidence, concerning the findings of a medical examination of the complainant shortly after the date of the offence.

The complainant was FP’s niece. Her evidence was given by way of a video taped interview with police conducted on 18 April 2004, admitted pursuant s 93A of the Evidence Act 1977 (Qld), and a video tape of the complainant being cross-examined on the contents of that statement, that cross-examination being video recorded on 21 September 2006. It was admitted under Part 4A of the Evidence Act 1977. The only other evidence came from the arresting police officer.

That officer’s evidence was that in 2004, on 17 April, police had attended at the residence where the complainant lived, because of unrelated matters. An officer spoke with the complainant, who was then 14 (she was born on 20 February 1990). The complainant disclosed to the police officer that the complainant wanted to speak about having been sexually assaulted by her uncle, and the interview happened on 18 April 2004.

In that interview the complainant described how when she was aged nine and living in Townsville with her mother, she was staying with her grandmother – apparently in Mount Isa – and went down to Cloncurry for the weekend, to help her aunty paint her house. On the first evening, after painting finished, she was swimming in the above ground pool at the residence, and wearing her bikini and a skirt when: “I just started floating on the thing and you know sort of drifted off to sleep and everything and umm like I don’t know how long I was asleep or anything...and then like when I opened my eyes and that umm my uncle had his hand right up my skirt.”¹

She said she quickly asked where the other children were, and her uncle said that they had gone inside ages ago, and then she left the pool. The next morning she asked her grandmother if they could go back to Mount Isa, and that happened. She continued: “And like I got my periods and that but I was only nine at the time and then the next morning went over to the doctors and they said umm because my Nanna was really worried and that because like I was bleeding a lot and umm like my Nanna umm said oh...she goes oh hurry and get ready and that and we’ll take you to the doctors and everything and we went to the doctors to get me checked out and everything and they said umm oh well something must have happened and that because umm she’s not fully...like wasn’t fully...to get her things yet.”²

She added³ that the doctor said that: “I shouldn’t have gotten my periods that early.”

The description in that interview contained the further detail that when she “woke up”, when floating on the water: “Like he had one hand around my back and the other hand right up my skirt so I woke up because I felt something and it hurt and you know I’ll wake up to anything now.”⁴ She added that at that time her uncle’s hand was touching her “private part”; that was in response to a somewhat leading question.

The evidence that “the doctors” had said: “Well something must have happened” was the inadmissible hearsay about which objection is now taken, although none was taken at the trial. Counsel at the trial (not counsel on the appeal) had suggested to the jury that perhaps an idea was planted in the complainant’s mind that “something must have happened”, because her menstruation began too early. That proposition was not put to the complainant at all.

In answer to questions, the complainant said in that interview that the first person she could recall telling about the incident was her aunt S, to whom she had said that: “[FP] done something to me and I told her you know that he had his hands up my skirt and that.”⁵

She also said, in answer to further questions, that she had told her friend T about it, and her best friend SK. She told SK “what happened”.⁶ She also said that her aunt had asked her: “How come you didn’t tell anybody when it first happened?”, and that she – the complainant – had replied to her aunt that she was: “Scared nobody would believe me which is true and that like I was too scared to tell anyone.”⁷

That piece of self-corroboration as to credit went before the jury without any objection. The prosecution did not call either T, or SK, or the complainant’s aunt S. Evidence was led in chief from the arresting officer that that officer had made no inquiries in relation to the aunt; had spoken to T, who did not recall speaking with the complainant child (presumably, about abuse by the complaint’s uncle); and that SK did not want to speak with police.

The trial was very short. FP did not give evidence, although he now seeks leave to file and read affidavit evidence on this appeal. It is to the effect that he gave a description to a solicitor of an occasion on which he was in the pool with the complainant (apparently the same occasion as described by her), but on his version he left while the children were still in the pool, and nothing at all happened. That affidavit annexes a copy of his instructions, which describe the same occasion as the complainant does, but contains no description of abuse. It does not contain an explicit denial that any offence occurred, and FP’s affidavit asserts that none of his lawyers asked him directly if the offence happened. That is relevant to one of the grounds of complaint now advanced regarding the conviction, that his counsel at the trial had not put the proposition to the complainant that the alleged abuse did not occur; the video taped cross-examination included the quote: “Well, are you sure it happened as you say it happened? - - Yes.”

That was as far as any challenge went.

FP now wants to contend that he was always prepared to give evidence of his innocence, and had expected to, but that he had gone along with his counsel’s advice that this was unnecessary. That concession makes it very difficult for him to succeed now on a complaint on that ground, because the decision not to call his evidence was a forensic choice in which he acquiesced (TKWJ v The Queen (2002) 212 CLR 124 at [16], [27], [74], [97], [107]). Mr T Martin SC argues that it was not a fully informed acquiescence, but it is unnecessary to consider that ground of appeal in any depth, because FP succeeds for other reasons.

The learned judge had supplied counsel with a copy of the summing up in draft form, after the evidence had concluded, and neither counsel asked for any amendment or change. The summing up did not actually describe any of the evidence, and that was understandable. The evidence had finished by midday, and the jury had just heard it and submissions on it. Unfortunately that summing up made no reference to the hearsay nature of the opinion of the doctors, repeated by the complainant in that interview and which was put before the jury, and nor were the jury given any directions on the use of the evidence in the complainant’s interview that she had made complaints to her aunt and to two friends.

No objection was taken to the admission of that evidence, and FP’s counsel made the point in his address that T did not recall the complainant speaking with her about abuse; and further suggested that the complainant had built upon what she had understood a doctor to say. The fact that counsel deliberately sought forensic benefit from the hearsay evidence by the police officer⁸ (that T did not recall speaking with the complainant about abuse), and also sought forensic benefit from the fact of the complainant’s understanding of what the doctor said, makes it very hard for FP to complain now about the admission of any of that evidence. It was admitted without objection because of a perceived benefit – it gave counsel a basis on which to suggest the complainant had let herself be honestly mistaken, and that the jury could not safely accept her account as credible and true.

But there is still the point that whatever benefit counsel attempted to get from what the police officer said that T had said, once the jury had heard, from the complainant, evidence in some detail of her having made a complaint to her aunt and her two friends, it was important that the jurors be directed that the complainant’s account of having made those complaints was not confirmatory proof of the facts which the Crown alleged.⁹ There was no independent evidence of any preliminary complaint¹⁰, only the complainant’s evidence of having made those. Once that evidence went in without objection, there remained the necessity for the trial judge to ensure that the jury realised it was not evidence independently supporting either the complainant’s credibility or of the fact of abuse. The learned judge was not assisted by any requests for directions on this topic by either counsel, but the directions were necessary to assist the jury.

The learned trial judge did warn the jury that it would be dangerous to convict upon the complainant’s testimony alone, unless after scrutinising it with great care, and considering the circumstances relevant to its evaluation, and paying heed to the warning, the jury were satisfied beyond reasonable doubt of its truth and accuracy. The judge had earlier referred to the complainant’s age at the time of the asserted events, the likelihood of error in recollection of events which can be expected to increase with time, and the further possibility that events recalled from childhood might be erroneous and liable to distortion over time. The judge had also reminded the jurors of the opportunities lost to the appellant to explore the pertinent circumstances in detail, an opportunity which would have existed had the complaint been made known to the appellant soon after the alleged events. Those directions focused the jury’s attention on the complainant’s credibility, and that made it all the more important that the evidence of her making complaints to others was not used in an impermissible way. That was a matter which could only be prevented by proper directions. It would also have been appropriate to remind them of the fact that T was said not to recall having received any complaint about abuse.

It should be understood that these reasons do not hold either for or against the proposition that the complainant was entitled to give evidence of complaints that she had made to others, when those others could not recall having received those complaints. Mr Martin SC did not argue that she could not, and confined his argument to the point that directions on the use of her evidence were needed. Mr M Copley, for the Director, suggested that consideration of that matter, which will undoubtedly arise soon enough, be only after full argument.

The jurors should also have been directed that the complainant’s account of what the doctors said was in no way evidence of the accuracy or truth of the statements she attributed to a doctor or doctors. I respectfully consider that the learned judge was obliged, despite the absence of any request, to give a direction to the jury on that matter too; the absence of any directions on the hearsay medical evidence and on the self-serving evidence about preliminary complaints to others were errors of law, resulting in a miscarriage of justice. Those directions should have been given and it is reasonably possible that the failure to direct the jury on those matters may have affected the verdict (Dhanhoa v The Queen (2003) 217 CLR 1 at [38]). The respondent Director concedes that this is not a case in which this Court could be satisfied of the appellant’s guilt beyond a reasonable doubt (Weiss v The Queen (2005) 224 CLR 300 at 316 [41]). This Court ordered on 14 March 2007 that the conviction be set aside, and that there be a re-trial, and undertook to publish these reasons. Whether the Director chooses to re-try the appellant, who has served some time in custody, is a matter for the Director’s discretion.

MUIR J: I agree with the reasons of Jerrard JA and Douglas J, and with the proposed orders of Jerrard JA.

DOUGLAS J: I agree with the reasons of Jerrard JA and the orders proposed by his Honour but wish to say something further about the learned trial judge’s summing up.

The failure of the learned trial judge to describe the evidence recently heard by the jury or to remind them of the arguments of counsel may be explained by the brief nature of the evidence and the failure of counsel to raise any issue after they had been provided with the learned trial judge’s draft summing up. Nonetheless, it is the trial judge’s duty to identify the issues in the case and to relate the law to those issues; see RPS v The Queen (2000) 199 CLR 620, 637 at [41]-[42] and Tully v The Queen (2006) 231 ALR 712, 724 at [49], 730 at [75]. That will require the trial judge to put fairly before the jury the case that the accused makes, normally in the course of reminding the jury of counsel’s arguments.

The real issue, on counsel for the appellant’s address below, was the reliability of the complainant’s evidence. The Longman direction given by his Honour focussed on part of that argument of counsel for the appellant below but the other attacks on the complainant’s credibility arising from the nature of her evidence were not mentioned in the summing up. To that extent the case which the appellant made was not put fairly to the jury by his Honour.

Counsel’s addresses referred to the hearsay medical opinion and the complaints to the complainant’s aunt and friends referred to in Jerrard JA’s judgment but the jury was given no guidance as to how the law required that evidence to be treated. That evidence raised issues that should have been identified and addressed by his Honour, the failure to do so requiring the order for a re-trial.

Footnotes

1. At AR 90. ↩

2. At AR 90. ↩

3. At AR 97. ↩

4. At AR 94. ↩

5. At AR 96. ↩

6. At AR 99. ↩

7. At AR 90-91. ↩

8. But admitted without objection, and so evidence in the case (R v Cox [1986] 2 Qd R 55 at 64 per Thomas J). ↩

9. Jones v The Queen (1997) 143 ALR 52 at 54, per Brennan CJ, Toohey, Gaudron, McHugh and Kirby JJ. ↩

10. This term comes from s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld). ↩