Court of Appeal (Qld)|2006-12-22|Before: Williams, Jerrard and Keane JJA, Separate reasons for, judgment of each member of the Court, each concurring as to the orders, made
Williams, Jerrard and Keane JJA, Separate reasons for, judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND
NON-DIRECTION – WHERE GROUNDS FOR INTERFERNCE WITH VERDICT –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION ANDNON-DIRECTION – WHERE GROUNDS FOR INTERFERNCE WITH VERDICT –PARTICULAR CASES – WHERE APPEAL ALLOWED– appellant was convicted bya jury of one count of maintaining a sexual relationship with a child under 16and four countsof unlawfully and indecently dealing with that child –whether the sexual assault counsellor’s sympathetic descriptioninevidence of the distressed and traumatised complainant implicitly conveyed anopinion on the credibility of the complainant –where counsellor’sopinion was not cross-examined on credit – whether the trial judge shouldhave specifically directedthe jury about counsellor’s evidence –where appellant conceded in a telephone conversation with the complainant thathe had done something wrong to the complainant – whether trial judge erredin not specifically directing the jury as to the
need to be satisfied that the
accused had heard and responded to the word “molested” in a phone
call with the complainant,
rather than “mistreated” before they
could draw any adverse conclusion from the confession – whether a
contemporaneous
note alleging abuse written by the complainant that was not
intended to be read by anyone else was a “complaint” of abuse
within
s 4A Criminal Offenders (Sexual Offences) Act 1978 (Qld)
Kilby v R [1973] HCA 30
(1973) 129 CLR 460, cited
R v Doolan
[1962] Qd R 449, cited
R v Duell [1964] Qd R 451,
considered
R v Hart [1979] Qd R 8, cited
R v
Johnson and Edwards [1981] Qd R 440, considered
Tully v R
[2006] HCA 56
B12 of 2006
7 December 2006, considered
Judgment (63 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] WILLIAMS JA: I agree with the reasons of Jerrard JA and with the orders proposed by him.
[3]
[2] JERRARD JA: On 29 August 2006 GX was convicted by a jury of one count of maintaining a sexual relationship with a child under 16, his daughter, and on four counts of unlawfully and indecently dealing with that child. On 30 August 2006 he was sentenced to five years imprisonment for the offence of maintaining a sexual relationship, and to concurrent terms of two and a half years imprisonment on each count of indecent dealing. He has appealed against his convictions, alleging a miscarriage of justice has resulted from a combination of various errors.
[4]
[3] The direct evidence incriminating him was the evidence of the complainant JL, and what the prosecution contended was an admission he made in a telephone conversation with JL. She was born in June 1987 and was 19 when she gave evidence at the trial. Her description of the offences was that they happened when she visited her father on Sundays, as part of contact arrangements made after her parents had separated when she was very young. GX lived at the relevant time on a houseboat not far from her mother's residence, and she would usually spend Sundays from about 9:00 am until about 4:00 pm with her father. He would collect her from her home, on foot, and she said that on most Sundays they would go to his boat.
[5]
[4] The count of maintaining a sexual relationship alleged that the relationship existed between 31 May 1998 and 24 June 2002, namely from just before she turned 11 until just after she turned 15. She described the incident which was count 2 on the indictment as happening on the boat, when she was in grade 6, and in the latter half of the year. She did grade 12 in 2004, so her description was of an event in the latter part of 1998. The count 2 indictment was the first alleged occasion of sexual abuse.
[6]
[5] She said that she was probably wearing shorts and a T-shirt, that being what she usually wore, and just "mucking around" when her father grabbed her and caused her to turn around. She saw that his penis was sticking out of his jeans, and he said words to the effect "This is the biggest one you'll ever see". He then began masturbating himself, and after a little while pulled down her pants and began to "finger me, yep."[1] He then tried to persuade her to "give him oral sex", and when she did not, he got her to masturbate him. She swore that he said "Your mum used to do this so you should too". Eventually he ejaculated onto the floor and he cleaned that up with his shirt.
[7]
[6] She described being sexually abused almost every weekend after that, until she eventually stopped going to see her father, which happened after she told her mother that her father had hurt her and that she did not want to see him anymore. She recalled saying that to her mother in the kitchen of their house, towards the end of her grade 9 year (2001), and before she left on an overseas trip to Europe with her mother and sister. Her mother gave evidence describing an occasion, which the mother thought was sometime in 2002, in which GX had said (in the kitchen) she did not want to go to see her father anymore because he had been "making, like passes at her or something"[2]; and both GX's evidence and her mother's evidence was that her mother had told GX after that conversation in their kitchen that JL would not be going to see her father anymore, and in fact JL did not. Her next contact of any kind with GX was a phone call on Fathers' Day 2005, referred to below.
[8]
[7] JL's account of the other specific occasions charged as offences included a description of an event happening when she was being driven by her father in a borrowed car after a visit to Ipswich to see her aunty and grandmother. She said that as they drove home her father pulled his penis out from his trousers and began masturbating, and then got her to masturbate him. She said he did not ejaculate. That constituted count 3.
[9]
[8] Count 4 was an occasion when they had been boating on the river, either in a kayak or a rowboat, and had a shower on his houseboat. He got into the shower with her, and got her to masturbate him while he "was fingering me".[3] She said that he eventually ejaculated and washed the ejaculate down the sink. She thought that event happened when she was in grade 7 (1999); and count 3 when she was in grade 7 or 8.
[10]
[9] The final discrete offence, count 6, was what she described as the first occasion on which he "gave me oral sex"[4], which she said happened when she was 13 or 14. She would have turned 13 in mid 2000 and 15 in mid 2002. She said that after that first occasion, oral sex occurred from that point on on each occasion when sexual abuse happened.
[11]
[10] The other evidence led, apart from the telephone call, consisted of a considerable body of evidence of complaints or statements she made about sexual abuse, generally in either 2001 or 2002. Exhibit 1 was a letter she typed to her mother, the contents of which show that it was written when she was halfway through year 9, and thus in mid-2001. Her evidence was that she wrote it in grade 6 or 7, but the contents show that she was wrong on that: she said that she just left the letter lying around, apparently for her mother to find, and did not actually give it to her mother.[5] Her mother's evidence was that JL had given it to her when JL was in high school, although her mother could not remember the year, and that JL was angry and upset when she gave it to her mother.[6] Her mother said she asked JL about it, and that "she didn't give me anything to follow up about it, so it was just dropped because she was angry."
[12]
[11] The contents include the statement that "I tried to stop Dad from hurting me and it just gets worse"; that "Dad has hurt me mum," that "It's all your fault he keeps doing it, you always send me down there and now you tell him when I've done something wrong so he does it to me more"; and "Okay I'm glad I told you about the wagging school. And if you tell Dad about it, I'll go to the police and tell them what he has done to me and what he will do again." Judging by the self-description in it, that she was now halfway through grade 9, that letter was possibly her first description of abuse, and the description given appears generally consistent with her evidence. Although it did not specify that the abuse was sexual, criminal conduct was implied.
[13]
[12] JL's evidence included evidence in cross-examination that shortly after she had written that letter her mother had asked her if her father had been doing anything to her, and that she had denied to her mother that her father had.[7] Her mother's evidence was that on an occasion after the receipt of the note, her mother had asked JL whether GX had hurt JL, but her mother could not recall the reply. It was common ground between JL and her mother that her mother contacted the police, not long after JL had first told her mother, when in their kitchen, that she did not want to keep going to see her father on Sundays. JL's evidence was that "a few weeks" after that conversation in the kitchen, her mother had "organised for the police to come over to my house and they came over and just basically told me what was involved in laying a charge and whatever and, yeah, I didn't like the police, so I just didn't do it."[8] JL and the mother each agreed that JL had not made any complaint on that occasion to the police, although her mother did tell the police in JL's hearing that JL had been abused.
[14]
[13] Both JL and her mother gave evidence of an occasion when JL was being driven by her mother in a car to a railway station, at a time when JL was working at the Brisbane Exhibition ground. She had an argument in the car with her mother. JL said she "blamed her (her mother) for everything" in that row,[9] and told her mother that her father had raped her. JL said in evidence that she meant by that statement that her father had abused her.[10] Her mother's recollection was that JL had said, in the car when angry, "and your husband raped me every Sunday."[11] Her mother's evidence was that she was stunned and shocked at the statement, and it was that that caused her to contact the police, but that JL had "just clammed up and wasn't ready to talk about it, didn't want to talk about it. She was just not well, emotionally not well."[12] JL's chronology in evidence was different on that point from her mother's; JL said that conversation in the car was after her mother had called the police to attend, and after JL had said nothing to them. On JL's evidence, those incidents - other than the outburst in the car, which she did not date - were in 2001 when she was in grade 9, whereas her mother placed them in 2002. The complaint of rape, which JL admitted she made in the car, went beyond her evidence.
[15]
[14] Mr P E Smith, counsel for GX on the appeal, argued that the statements JL made to her mother, and those in that letter, ought not to have been admitted, even under the provisions of s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld). That relevantly provides as follows:
[16]
"(2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.
[17]
(3) Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.
[18]
(4) If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.
[19]
(5) Subject to subsection (4), the judge may make any comment to a jury on the complainant's evidence that it is appropriate to make in the interests of justice.
[20]
preliminary complaint means any complaint other than -
[21]
(a) the complainant's first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or
[22]
(b) a complaint made after the complaint mentioned in paragraph (a)."
[23]
[15] Mr Smith's point on the appeal was that JL's statements to her mother, and the letter, were equivocal and not about the alleged commission of the actual offences charged, and therefore were not complaints. I respectfully disagree. The jury were entitled to conclude that JL's spoken and written statements, recounted by her mother and in the letter, were about sexual abuse of her,[13] just as they were understood to be by her mother. It is true that only one was an explicit complaint, that of being raped, which complaint was inconsistent with her later evidence, but that did not make it inadmissible. It was a reasonable construction of the letter that it complained of illegal conduct by GX, which hurt JL. There was no suggestion that JL was seen to be bruised or show other evidence of physical abuse. That made it likely the illegal acts were sexual rather than brutal.
[24]
[16] Mr Smith was on stronger ground in relation to another complaint JL described, one she said she made to a "guy who I was dating,"[14] before she told her mother about any abuse. She swore that she told the person she was then dating "about it", and that he had said that if she did not tell someone, he would; so she told her mother. She named the lad she was dating, but he was not called as a witness, and the submission is quite properly made that JL's evidence of what she said in a general way to that person should not have been received as evidence of a complaint. The transcript reads as if it was led by the prosecution to explain why she spoke to her mother when she did. I do not think it was particularly prejudicial evidence or of any weight, and there was nothing the trial judge could have done to stop that piece of evidence; any direction or comment about it would have done more harm than good.
[25]
[17] Mr Smith accepted that two other complaints were admissible, ones made to school friends of JL. One was to a Ms S, and both JL and Ms S said that when they were walking home together from a cinema, JL told Ms S that "my dad sexually abused me" (JL's evidence)[15] or that JL "has sex with" her father (evidence of Ms S).[16] Ms S said that that happened in grade 9, in 2001.
[26]
[18] The other witness was a Ms E, and JL's evidence was that a group of girls were together at Ms E's house when JL was in grade 9, and she told Ms E that "my dad sexually abused me and that again I blame everything on it".[17] Ms E's recollection was that the conversation was when they were in grade 10, early in the year, and that JL had said (to a group) words to the effect that her father had sexually assaulted her; the other teenagers could see that JL was upset, and Ms E said they did not say much back to her for that reason.[18] The trial judge specifically warned the jury that the evidence of those complaints, like the contents of the letter, were not evidence that the events had happened, and could only be used to assess JL's credibility.
[27]
[19] Other evidence of preliminary complaint, about which complaint is made on the appeal, was given by an experienced social worker working within the Royal Brisbane and Women's Hospital in the Brisbane Sexual Assault Service. JL had four appointments with the social worker, all in August 1995. JL's evidence was that after JL had attempted suicide in 2005 arrangements were made for her to see a counsellor. That evidence by JL, and the nature of the evidence the counsellor gave, shows that the latter had assisted JL in a counselling role, not an investigative one. In the course of that counselling JL had told the counsellor about the abuse of her, and it was after the counselling finished that JL made a complaint to police on 30 August 2005.
[28]
[20] The counsellor was giving JL supportive therapy and counselling, and did not make notes of what JL said to her at the time, although she did make counselling notes straight after each appointment. The counsellor was called, obviously enough, to give evidence of what JL had said to her about the abuse JL described. The counsellor's sympathetic description in evidence of the distressed and traumatised teenager whom she had counselled conveyed, perhaps inevitably, the opinion that the social worker accepted that JL had been traumatised by the abuse JL described to the counsellor. That opinion was conveyed by parts of the counsellor's evidence which were as much, or more, a description of the counselling process and of JL's desperation, as it was a description of what JL said about abuse. The counselling role was a protective one, in which it would have been inappropriate for the counsellor to question or challenge JL's account.
[29]
[21] The counsellor did not ever directly express any opinion on JL's credibility; that simply emerged, almost as a conclusion subliminally conveyed, from her evidence. For example, it reads as follows:
[30]
"She talked to me in general terms about the fact that she experienced child sexual assault across all the appointments and on one of those appointments she told me some details of what had occurred to her by her father.
[31]
What were the details that she told you? - - The details were that - I should say that she - this was very traumatic for JL and it wasn't easy. She didn't just tell me straight out, this, this and this happened. It was a highly traumatising situation."
[32]
"What makes you say that? What gave you that impression? - - That impression was because I still see it in my mind. She was sitting on a couch. We have a room, a comfortable room, with couches and sofa chairs and lots of cushions and we are very used to people - we set it up because it's a very traumatic situation to talk about these things. We use cushions too for self-protection and in JL's case she was cuddled up in the corner of the couch clutching some cushions and sort of, as she told me, talking like this in a self-protective way. We set up a very safe issue. She said she wanted to tell me about it. It wasn't something that I led her into and she said she wanted to tell me and we discussed why this would be helpful in terms of the therapeutic part of her healing and what she was coping with."[19]
[33]
The counsellor then gave a quite detailed description of what JL said to her about the abuse alleged, which was admissible, and which did show that the counsellor had asked some leading or suggestive questions of JL. But while the latter part of that evidence of the counsellor was admissible as a preliminary complaint, the opinions conveyed in the evidence quoted were not.
[34]
[23] The counsellor was the last witness for the prosecution. The jurors would have seen for themselves that JL was a very distressed young woman, who found giving evidence very difficult and traumatic. But the counsellor's evidence offered an explanation for why JL had not made earlier, detailed complaints, namely, that it was traumatic for her to do that; JL's evidence included that she had not told her mother of any actual acts or examples of abuse.[20] JL had not been cross-examined about that, so the counsellor's evidence had the effect of assisting JL's credit on a matter on which it was not challenged.
[35]
[24] Section 4A(4) of the Criminal Law (Sexual Offences) Act made it irrelevant for GX's counsel to cross-examine JL as to why JL had not made any earlier complaints giving specific descriptions of what she alleged had happened. That provision, and a sensible anticipation of what JL would say, undoubtedly led to GX's counsel very much limiting the cross-examination of JL about her lack of detail in what she wrote and said in 2001 or 2002. That meant GX had rebuttal evidence led, on a matter not raised as a challenge. In R v Johnson and Edwards [1981] Qd R 440 the Court of Criminal Appeal held, in respect of evidence in support of the credit of a witness, that it did not become admissible (if at all) until the credit of the witness was attacked. Demack J wrote regarding evidence relevant to the complainant's credit, that:
[36]
"...the fact that the defence may wish to cross-examine upon the matter does not mean that the Crown is entitled to open up the issue in evidence in chief. If such a procedure were followed to its fullest, criminal trials would drag out to intolerable lengths."[21]
[37]
The like prohibition must apply with even more force when there was no attack on credibility on the ground on which evidence is led in support.
[38]
[25] The learned judge directed the jury about the considerable body of preliminary complaint put before them, but did not give any specific directions about the counsellor's evidence. The judge did direct the jurors that that evidence of preliminary complaint could not be used as a substitute for direct evidence that the events described had occurred, and that the evidence could only be used by the jury to assess JL's credibility. The judge did not expressly draw to the jury's attention any inconsistencies in the various complaints JL had made or declined to make, but did remind the jurors of the fact that the defence counsel had submitted JL had told different things to different people.
[39]
[26] GX gave evidence, and denied committing any abuse. His evidence was that towards the end of the contact visits, most of the time was spent off the boat, and that he stopped seeing JL in or about March 2002, because he told her not to come down anymore. He did that because, he told JL, he had had a "gut full of her attitude"[22] and that he was very angry with her. His anger was because she would not bring anybody down to the boat, would not tell him who her friends were, would not invite him up to the house, and he felt excluded.
[40]
[27] At the suggestion of the police JL made a telephone call to her father on 4 September 2005 (Fathers' Day), and recorded it. The transcript reads:
[41]
"JL: Oh yeah, I [indistinct] ask you a question. Okay, a couple of months ago I um tried to kill myself.
[42]
JL: yeah. And part of the reason why was cause of what you did to me and I just want to know sort of why aren't you molestered [sic] me when I was little.
[43]
GX: I didn't realise I had, I really didn't know, [indistinct] pain killers hey. I know I've done something wrong to youse [sic], I've hurt your feelings I know that, hey.
[44]
GX: I thought you didn't know, I know I've done something wrong, I don't know what."[23]
[45]
[28] GX's evidence was that he thought JL had said "mistreated", and had not realised she said "molested"; the audiotape quality is not good, but the word used was "molested", and it may have been clearer on the telephone. However, GX said he had intended to convey that pain killers that he had been taking over time had made him irritable when with JL, and that he was acknowledging in his response having shouted at her (abusively), when he had told her to stop coming.
[46]
[29] The learned trial judge did not specifically direct the jurors as to the need to be satisfied that GX had heard and responded to the "molested" in that phone call, rather than "mistreated", before they could draw any adverse conclusion from the concession that GX knew he had done something wrong to JL. While that was undoubtedly self-evident, and while the learned judge did refer to the fact that both counsel had made submissions about the telephone conversation,[24] Mr Smith complained that the learned judge did not add a reminder of the need to be certain GX had realised he was being accused of molesting JL, before they could possibly take his reply as a confession to some sexual abuse. Some fuller directions about the need for certainty would have assisted the jury more, because neither the question JL asked nor the answers GX gave were explicit. Mr Smith argued that the jury should have been given a direction in the standard terms about a confession, namely the need to be satisfied both that it was made and that it was true. Drawing any inference adverse to GX from the telephone call would have been very unfair unless the jurors were very confident GX knew the accusation was of molesting JL (who was obviously upset), and unless the jury were satisfied he was not simply placating her.
[47]
[30] If the jurors were satisfied that GX had heard the word "molested" and had understood JL was accusing him of molesting her when she was little, than his answers could be taken as an admission of the general truth of the accusation. If that is what it was, then that admission established from his mouth the generally sexual relationship between GX and JL, which was also sought to be demonstrated by the evidence led from her of many other occasions of uncharged sexual abuse, and which formed the basis of count 1. It was potentially very powerful evidence, because it came from him. I agree that the jurors should have been given directions on its use.
[48]
[31] On the appeal Mr M J Copley for the Director of Public Prosecutions argued that that was the only particular of the claimed miscarriage of justice that would concern this Court, and submitted that it was difficult to call what GX said on the phone an admission because, he argued, "What the offender gave with one hand, he took away with the other."[25] He conceded that the jurors should have been directed that if those statements by GX (which his primary submission suggested were perhaps equivocal) were treated by the jury as (as Mr Copley put it) "an acknowledgement of having to some extent done something which fell within the broad description of molesting his daughter," that did not establish guilt on any particular count on the indictment. His primary submission was that because the matter was only referred to in very general terms in the opening by the prosecutor, and because of the very limited reference to it in the summing-up, that it had not assumed a great deal of significance in the case.
[49]
[32] But the evidence did assume significance in GX's cross-examination, in which he was challenged on his statements that he thought his daughter had complained of mistreatment, and on the logic of his response to that latter accusation; including in some questions asked by the learned trial judge. Despite Mr Copley's submissions, it cannot be assumed that the jury regarded the taped call as of little significance. It was led as a confession, and was irrelevant if it was not. The jurors should have been given more guidance on what use they could and could not make of it; if it was as equivocal as is now suggested, it should probably have been excluded (R v Doolan [1962] Qd R 449; R v Hart [1979] Qd R 8).
[50]
[33] Mr Smith also complained of evidence given by JL's younger sister, from whom evidence was led that, on a date not identified in her evidence, she was "snooping" in GX's room and found some "bunched up pieces of paper",[26] on which there was typing, which referred to:
[51]
"Something like 'sex with dad' and then 'I was too young' and kind of just really shocked me and surprised me and I put it away and never told anyone."[27]
[52]
[34] JL's evidence was that she could not remember keeping any notes about the abuse she alleged, although she also said that "...probably just if something went wrong I'd write it down on a piece of paper or something".[28] She was not asked why she would write it down. It does not appear that it was the Crown case that what JL's younger sister saw was the typed letter JL had either left for, or given to, her mother to read, because the prosecution did not put that document (which was Exhibit 1 on the trial) in her younger sister's hands. It therefore seems to have been the prosecution case that her younger sister read some other document, which JL did not recall writing.
[53]
[35] Mr Smith submitted that whatever the younger sister read, it did not answer the description of a "complaint" within s 4A. He submitted that while a complaint included a "disclosure", there was simply no evidence that JL had intended to disclose the assertion of sexual abuse to anybody in whatever document (assuming JL created it) her younger sister found hidden in JL's room. I think that argument is correct; the essence of a complaint is that it is made, no matter how obliquely, to another person. A contemporaneous record alleging abuse, but not intended to be read by anyone else, is not a disclosure or complaint of abuse made to any other person, although it is consistent with a claim, made later, of abuse happening at that earlier time. In the absence of evidence that what the younger sister read was what JL had written for her mother to read, the jury could not safely conclude it was written by JL for someone else to read. She did not say it was; although that was an obvious inference, no-one asked, and it was not the only inference. It therefore should not have been put forward as a preliminary complaint.
[54]
[36] Mr Smith made the same submission about the undisclosed contents of the statements to the young man whose response prompted JL to tell her mother about GX's abuse. That submission was based on the failure to call that other person as a witness. He argued, correctly, that the decision in R v Duell [1964] Qd R 451, that a complaint made to a third person who cannot remember the complaint being made, is admissible, depended on a view of the admissibility of a fresh complaint overturned in Kilby v R [1973] HCA 30; (1973) 129 CLR 460. But that evidence - of the undisclosed complaint - had little weight.
[55]
[37] The learned trial judge directed the jury with care on the importance of their assessment of JL's truthfulness and credibility, which the judge described as the central issue in the case. The judge directed the jury that unless they were satisfied JL was truthful and reliable, the jurors had to acquit, and later directed them that it would be dangerous to convict on the basis of JL's evidence alone, unless, after scrutinising it with great care and considering all the surrounding circumstances on the evidence which related to the evaluation of her evidence, and taking into account the judge's warning, they were satisfied beyond reasonable doubt that she was both truthful and accurate.[29] It follows that the judge gave a stronger direction than even that suggested in the minority judgments in Tully v R [2006] HCA 56,[30] and a direction favourable to GX. The judge also directed the jurors that they must limit their use of the evidence of the uncharged sexual acts to the count of maintaining a sexual relationship, to which it was relevant; and explained that it placed in proper context the four specific offences with which GX was charged. The directions given also warned the jurors they could not use that evidence in relation to those four specific counts, and to be very careful not to engage in propensity reasoning.[31] There is no complaint about those directions.
[56]
[38] GX's counsel did not object to any of the evidence from the counsellor or JL's sister, or the telephone call, or ask for any further or other directions from the learned trial judge. The learned trial judge therefore gave GX every advantage the judge properly could, and was not asked to do anything differently. Despite that, I was persuaded by Mr Smith that the trial resulted in a miscarriage of justice to GX. That was because of the evidence led from JL's younger sister, which was inadmissible, the evidence given by the counsellor as to why she thought JL found it traumatising to describe what happened to her, and the lack of direction on how the jurors might use the telephone call or not use it. GX has had a trial in which some inadmissible and prejudicial evidence went before the jury, who were not sufficiently directed on the use its members could make or not make of other evidence. There was no forensic benefit in not objecting to the sister's evidence, or in not asking for proper directions on the phone call. Neither defence counsel or the judge could realistically do anything about the counsellor's evidence. I do not think the case is an appropriate one for the application of the proviso.
[57]
[39] The telephone call may be admissible, if the Crown persuade another trial judge that it is not equivocal, as was suggested by the Crown on the hearing of the appeal, but that still leaves the evidence of the sister. On a further trial it may be that other evidence results in the sister's evidence being admissible, as an intentional complaint made to some person JL hoped would read what she wrote; but on the trial that was actually held, it was not admissible. Whether GX was guilty depended on JL's credibility, and the jurors may have relied on matters not available to them when believing her. It is impossible to conclude that the evidence of JL's younger sister, and the telephone call, had no significance in determining the verdicts that were returned by the trial jury. Accordingly, I would allow the appeal and order a new trial on all counts.
[58]
[40] KEANE JA: I agree with the reasons of Jerrard JA and with the orders proposed by his Honour.
[59]
[13] See R v Braye-Jones[1966] Qd R 295, discussed in R v Whinfield (unreported, Queensland Court of Criminal Appeal, CA No 132 of 1986, 16 September 1986), at pp 9-11.