R v HAU [2009] QCA 165

Judgment (113 paragraphs)

[1]

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESSES AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED - where appellant convicted of indecent treatment and unlawful carnal knowledge of a child under 16 years of age and was the guardian of that child - where the prosecution failed to disclose the victim impact statement and attached doctor's letter - where the victim impact statement presented different account of events by complainant - where defence should have been afforded the opportunity to cross-examine the complainant with respect to those different accounts - whether defence suffered forensic disadvantage by

[2]

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85, cited

[3]

Easterday v The Queen (2003) 143 A Crim R 154; [2003] WASCA 69, cited

[4]

R v Beesley [2008] QCA 240, cited

[5]

R v Bryer [1994] QCA 547; (1994) 75 A Crim R 456, cited

[6]

R v C [2000] 2 Qd R 54; [1999] QCA 246, cited

[7]

R v H [1999] 2 Qd R 283; [1998] QCA 348, cited

[8]

R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, cited

[9]

R v T; ex parte Attorney-General of Queensland [2002] QCA 132, cited

[10]

R v Waerea; ex parte A-G (Qld) [2003] QCA 20, cited

[11]

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

[12]

Director of Public Prosecutions (Queensland) for the respondent

[13]

[1] KEANE JA: On 19 March 2009 the appellant was convicted upon the verdict of a jury of one count of indecent treatment of a child under 16 years of age, and six counts of having unlawful carnal knowledge with a girl under the age of 16 years. Each count on the indictment alleged as a circumstance of aggravation that the appellant was the guardian of the complainant.

[14]

[2] On 20 March 2009 the appellant was sentenced to 18 months imprisonment in respect of the indecent dealing offence and four years imprisonment in respect of each of the unlawful carnal knowledge offences. The learned sentencing judge declared that five days of pre-sentence custody was to be treated as time served under the sentence.

[15]

[3] The appellant seeks to appeal against his convictions on a number of grounds each of which are concerned with the conduct of the trial. They are best discussed after a brief summary of the evidence at trial.

[16]

[4] The appellant also seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

[17]

[5] The Crown case against the appellant was that between 14 December 2007 and

[18]

2 February 2008 the appellant engaged in seven acts of sexual activity with the complainant who was 14 years of age at the time.

[19]

[6] The complainant's mother gave evidence that she and the appellant were living in a de facto relationship which had commenced in September 2007. The appellant moved in with the complainant's family shortly after the relationship commenced. The household moved to Moranbah in December 2007.

[20]

[7] On the night of 24 January 2008 the complainant, her sister, S, and Mrs G's daughter, SG, had consumed some alcohol after which the complainant told the other girls that the appellant had had sex with her. On the following morning, S and SG told Mrs G what the complainant had told them. Mrs G then informed the complainant's mother of what she had been told.

[21]

[8] The complainant's mother gave evidence that on 25 January 2008, her friend,

[22]

Mrs G, told her something which led her to confront the complainant who initially denied that anything untoward had occurred between her and the appellant.

[23]

[9] Later on 25 January 2008, the complainant's mother and Mrs G spoke to the complainant again at which time she confirmed that she had had sex with the appellant and gestured with her hand to indicate where in the house this had taken place.

[24]

[10] On 1 February 2008 the complainant approached the police, and gave them a

[25]

video-recorded statement. Later that evening a second video-recorded statement was taken. Their statements stood as the complainant's evidence in chief pursuant to s 93A of the Evidence Act 1997 (Qld). Prior to the second video-recorded statement, the police interviewed the appellant. He denied that any sexual activity had occurred between himself and the complainant.

[26]

[11] On 17 February 2009, the complainant's cross-examination and re-examination were recorded pursuant to the provisions of Div 4A of the Evidence Act.

[27]

[12] The complainant's evidence of the incidents the subject of the charges against the appellant may be summarised as follows:

[28]

Count 1: The complainant told police that she gave the appellant a massage and that "he fingered me and um gave me oral. He done that twice, both them things twice, consecutive, one after the other." It was said to have happened in the main bedroom.

[29]

Count 2: The complainant said that there was a second occasion where the appellant was being given a massage by her. It happened in the main bedroom. The complainant was giving the appellant a back massage when he came home from work one day when her mother was at work and her younger sisters were downstairs, and he asked the complainant to have sex with him. She said that she did not want to hurt her mother, and the appellant said: "... [what your] mum doesn't know won't ever hurt her". She then said: "Yeah." They kissed for a while and then they started having sexual intercourse but were interrupted by a noise coming from a door. The complainant hid in a closet and the appellant walked down the hallway to the lounge room.

[30]

Count 3: The complainant said that she was drying the dishes when she went to get a fresh tea towel from the bathroom. The appellant followed her into the bathroom and began to kiss her. She was wearing a pair of loose black shorts, which were pulled to the side by the appellant. He put her on the bathroom bench. He had sexual intercourse with her but did not ejaculate.

[31]

Count 4: The complainant said that she was helping the appellant to shift boxes to a shed. While in the shed the appellant picked her up and sat her on a work bench, after he had kissed her. The appellant then had sexual intercourse with her.

[32]

Count 5: The complainant said that the appellant was downstairs cooking a barbeque. The appellant kissed and fondled her in that area of the house. He then sat her down in a chair in that area, where they had sexual intercourse.

[33]

Count 6: The complainant said that she was in the downstairs area of the house on the computer. The appellant entered the area and turned off the light. He kissed and fondled her before helping remove her pants. The complainant said that the appellant had sexual intercourse with the complainant while she was lying back in the chair, near the computer.

[34]

Count 7: The complainant said that the appellant picked her up from work and told her he had a present for her. The present turned out to be a container of lubricant. Later that day they were in the shed together when the appellant showed her a clear container containing lubricant. He began to kiss her before putting her on the work bench. A cloth was put beneath her so her skirt did not get dirty. The appellant, using his fingers, put the lubricant on the complainant and they had sexual intercourse. He wiped his penis on a rag after they had had sexual intercourse. DNA in spermatozoa matching the appellant's was found by police on a rag in the shed.

[35]

[13] Mrs G gave evidence that she saw the complainant touching the appellant in an affectionate way on several occasions. She said that "it was almost like a new couple together".

[36]

[14] The complainant's sister, S, gave evidence that the complainant followed the appellant around "most of the time". This evidence was in contrast to the evidence of the complainant which was to the effect that she tried to avoid him.

[37]

[15] In the complainant's cross-examination, it was put to her that she had complained of the attention which her mother paid to the appellant to the exclusion of the complainant and her sisters. She agreed that she had made complaints to that effect, but she denied that she had previously said, "I'll get Mum for this." She also said in cross-examination that she did not "fully agree" to having sex with the appellant.

[38]

[16] It is fair to say that it was apparent at trial that the complainant is a troubled young woman. Her mother gave evidence that before the complainant acknowledged the truth of what she had told her sister and SG, she said "No, S must be lying." When the complainant was cross-examined about this she said initially: "I said that first because I didn't want to wreck anything with my mother because of ... ." Later in her cross-examination, she denied that she had said that S was lying. It may be noted here that, when the learned trial judge summed up to the jury, counsel for the appellant asked his Honour to remind the jury of this evidence, but his Honour declined. It is now said that his Honour's decision in this regard meant that his Honour's directions to the jury did not maintain a fair balance between prosecution and defence.

[39]

[17] The appellant gave evidence at trial. He denied that any sexual activity occurred between himself and the complainant. In his interview with the police and in his evidence the appellant said that his sperm came to be on the rag in the shed because he wiped himself with the rag after masturbating. It was suggested that the complainant knew of the presence of sperm on the rag because she had surreptitiously watched him masturbate.

[40]

[18] The grounds of appeal against the convictions are that:

[41]

(a) the learned trial judge erred in failing to remind the jury of the

[42]

cross-examination and re-examination of the complainant when redirecting the jury;

[43]

(b) the learned trial judge erred in failing to remind the jury of portions of the cross-examination of the complainant in the course of summing-up; and

[44]

(c) the appellant was denied a fair trial as a result of the failure of the Director of Public Prosecutions to disclose the victim impact statement and the attachment to the victim impact statement prior to the pre-recording of the complainant's evidence.

[45]

The learned trial judge failed to remind the jury of the cross-examination and re-examination of the complainant when redirecting the jury

[46]

[20] On retiring to consider their verdict, the jury asked that the video-recording of the complainant's statements to the police on 1 February 2008 be replayed to them. The video-recording was replayed in court and the appellant's counsel asked that the learned trial judge remind the jury of the cross-examination and re-examination of the complainant. His Honour declined to give the jury any further direction on this aspect.

[47]

[21] The replaying of the video-recording of the complainant's statements to police occupied one and a half hours. The learned trial judge did not offer any comment on that evidence which the jury had specifically asked to see again. It is in these circumstances that the question arises as to whether, in order to ensure fairness to the appellant, the trial judge should have reminded the jury of the balance of her evidence in the pre-recorded cross-examination and re-examination.

[48]

[22] This Court has recognised that, while a trial judge who has the conduct of a criminal trial "is best placed to ensure fairness and balance",[1] where the complainant's evidence in chief is replayed for the jury, care should be taken after the tape has been replayed to remind the jury of the complainant's cross-examination and

[49]

re-examination. Sometimes fairness may require that that be done by reading from the transcript containing that evidence given in court, but in other cases it may be sufficient simply to remind the jury of salient aspects of the cross-examination or re-examination of the complainant or of other contrary aspects of the evidence.

[50]

[23] In the present case, it would have been a simple matter for the learned trial judge to remind the jury that the complainant's evidence did not consist solely of her statements to the police, and that they should bear in mind her evidence in

[51]

[24] It was clearly desirable that such a comment be made in the interests of preserving balance by ensuring that the jury were not focused solely upon the complainant's evidence in chief to the exclusion of the balance of her evidence and, indeed, of the rest of the evidence in the case. There seems to be no good reason why such a comment was not made. On the other hand, in the circumstances of this case, it is difficult to see that the appellant was materially disadvantaged. Because of the view I take in relation to the third ground of appeal, it is not necessary for me to come to a definitive view on this point. I should say, however, that I am inclined to the view that the learned trial judge erred in the exercise of his discretion, but if this point were the only error affecting the trial, I would not be disposed to conclude that there had been any resultant miscarriage of justice.

[52]

The learned trial judge erred in failing to remind the jury of portions of the cross-examination of the complainant in the course of summing up

[53]

[25] In the course of summing up to the jury, the learned trial judge said:

[54]

"She had after all told her sister, [S], and [SG] and her mother and [Mrs G] and [her employer] about the allegations before going to the police. There were separate, in other words, renditions to different people about the same subject matter."

[55]

[26] Counsel for the appellant raised these observations with the learned trial judge in the following exchange:

[56]

"MR GREGGERY: Yes. Your Honour, the only other issue in terms of evidence that I raise, is that your Honour referred specifically to the conversation between [the complainant] and her mother and

[57]

[Mrs G] where she pointed and indicated a number of places. It seems that on the same day preceding that, when asked by her mother, [the complainant] denied the truth of it and indicated that

[58]

[S] had been lying, and I was just wondering if your Honour would be prepared to remind the jury of that?

[59]

HIS HONOUR: Wasn't - there was a contrast between what they said had been said there; wasn't there, between those two witnesses

[60]

HIS HONOUR: -----between [Mrs G] and - this is - I thought that [Mrs G's] evidence was that she'd not only indicated by direction, but she'd said that it had happened all over the place, or words to that effect-----

[61]

HIS HONOUR: -----and her mother - her mother didn't say that she said - she said she said nothing; just pointed.

[62]

MR GREGGERY: Yes. And they were talking about the same thing

[63]

HIS HONOUR: I mean, I could highlight it more, but I wouldn't have thought it'd be to your advantage. You can ask me if you want - want me to.

[64]

MR GREGGERY: No, I'm talking about that event being contrasted with an earlier one where the mother spoke to [the complainant] and [the complainant] indicated that it didn't happen and '[S] must be lying'-----

[65]

HIS HONOUR: So, what you're really suggesting is, I-----

[66]

MR GREGGERY: Prior to indicating it did happen, she'd told the mother that [S] denied it and [S] - said '[S] must be lying.'

[67]

HIS HONOUR: Yes. I'm not sure if that's something you addressed on at all; is it?

[68]

HIS HONOUR: Mmm. Look, I don't think I gave it any imbalance, Mr Greggery, but your client's protected if someone takes a different view."

[69]

[27] I am of the opinion that, considered alone, the learned trial judge's refusal to remind the jury of what was an obvious aspect of the evidence was quite unlikely to enure to the appellant's disadvantage in the deliberations of the jury.

[70]

The failure of the prosecution to disclose information

[71]

[29] It is common ground that at trial the prosecution was in possession of two pieces of information which should have been disclosed to the defence pursuant to s 590AB of the Criminal Code 1899 (Qld) but were not. These items were a letter from a doctor who was treating the complainant for depression and the victim impact statement of the complainant.

[72]

[30] The letter from the complainant's doctor was in the following terms:

[73]

"This is to confirm that [the complainant] is suffering from depression and has been started on anti-depressents [sic] (Zoloft) and also she receives psycotherapy. She also suffers from sleep deprivation and has nightmares too."

[74]

[31] The victim impact statement was relevantly in the following terms:

[75]

"I am [the complainant], I am 15 years of age I am single and have no children. Currently I have no job because I am still at school ... I am the victim of sexual assault of [the appellant]. This offence occurred in January and February 2008 as this occurred several times. All of these offences happened at the house we lived in at ... When this first occurred I hated it I couldn't believe that it was happening I did not know what my mum would think. I was so embarrassed about the whole situation because it was my mum's boyfriend. It hurt when he had sexual intercourse with me I was trying to push him off but he said that 'He would go slower.' But I still wanted him to stop. Then he heard the screen door close it was one of my sister's. That is when he hopped off of me but they didn't see anything. It hurt to walk, bend over and due to the job I had ... I would work at the Check outs and in my spare time I would open boxes price all the objects inside then have to carry the boxes up to the isle [sic] that that certain product belonged. This certain job I couldn't do without being in pain. After the sexual assault occurred I felt like I have been over ruled and it was then going to happen all the time but I tried to stop that by not going anywhere by myself in the house. I also felt embarrassed and like a piece of dirt and someone been used. This occurrence did change my family and friends lives they couldn't think that anything like this could happen to someone that they thought was a very happy person. I didn't want to tell anyone this because I didn't want our lives to change and anyone to look at me different. From this occurrence I have sleep depravation [sic], nightmares and when going over friends houses I am always scared that it is going to happen again. I have not got a good relationship with my mum and I miss her terribly and want her to come back but we have not talked for a while know [sic] and the last time I spoke to her was when we had a fight. I have a personality built up with strengths of organized, determined, loyal, different and outgoing I still have some of these qualities but I am more shy and scared to say or show what I feel." (emphasis added)

[76]

[32] On the appellant's behalf, it is contended that "[t]he document plainly alleges rape". While that contention may be overstating the effect of the victim impact statement, it is nevertheless true to say that there are aspects which are inconsistent with aspects of the account given by the complainant at trial. In the victim impact statement, she said that she "hated it" and "couldn't believe it was happening", that it "hurt", that she tried to "push him off", that she felt like she had been "overruled". The relevance of these inconsistencies can be illustrated most poignantly by reference to the following comment by the trial judge on the address of the Crown Prosecutor:

[77]

"She had not suggested here that she was forced into sexual activity. She didn't allege violence. She didn't allege that she was threatened in any way if she told her mother about such things. And submitted to you that through your consideration, that if she had the capacity to parade all of this story and the false story as to different particulars, that you might have expected that she might have added both bits of embellishment to her account if she was making - make up false allegations.

[78]

He submitted that that would give you some assistance as to determining where the truth lies. ..."

[79]

[33] The passages of the victim impact statement which I have emphasised do suggest that the complainant was overborne - at least to some extent - by the appellant and that he used a measure of force to have his way with her.

[80]

[34] That having been said, it may be argued that cross-examination of the complainant by reference to the terms of the victim impact statement and the complainant's doctor's evidence would have served to do no more than confirm to the jury that the complainant is a troubled young woman who was placed in an intolerable situation by the appellant, which may also help to explain her initial reluctance to adhere to her complaint against the appellant. It must also be borne in mind that the absence of consent on her part was not an element of any of the offences with which the appellant was charged, and that just because she is a difficult child does not mean that she is a dishonest one. Symptoms of depression on her part may suggest that she was troubled rather than untruthful.

[81]

[35] Mr Greggery of counsel, who appeared for the appellant, acknowledged, with admirable frankness, that the Crown's case against the appellant at trial was a strong one and that the undisclosed material is a double-edged sword. He argued, however, that the failure by the prosecution to disclose these documents was a serious defect in the trial, and that this Court is not in a position to apply s 668E(1A) of the Criminal Code to dismiss the appeal on the basis that "no substantial miscarriage of justice has actually occurred" by reason of the conviction of the appellant. That is said to be because this case falls within the category of cases described by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen[2] as:

[82]

"cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of this kind."

[83]

[36] In Alister v The Queen, Brennan J, as his Honour was, said that a trial in which the right of an accused to access to relevant documentation in the possession of the prosecution is denied "cannot be ... a trial according to law".[3] The resolution of the issue raised by this ground of appeal must be approached on the footing that the obligations of the prosecution under s 590AB of the Criminal Code are of fundamental importance to a fair trial of a charge on indictment.[4]

[84]

[37] The view has been taken in Queensland that non-compliance by the prosecution with its obligations of disclosure is "such a serious breach of the presuppositions of the trial as to deny the application of the ... proviso",[5] at least where the material not disclosed "might well have influenced the result of the trial".[6]

[85]

[38] In R v Spizzirri Pincus JA, with whom de Jersey CJ and White J agreed, said that "[u]se of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose".[7]

[86]

[39] In this case, as in R v Spizzirri, the defence should have been afforded the opportunity to raise with the complainant in cross-examination the differences in her accounts of events. Whether or not that opportunity should be availed of was, as Pincus JA said in R v Spizzirri,[8] a matter for decision by "counsel for the defence". Pincus JA went on to say:

[87]

"The real difficulty in acceding to the argument that the verdict should be set aside is that there is absolutely no reason to doubt that the appellant's knife pierced the complainant's abdomen, causing grievous bodily harm, and the appellant's evidence about the way in which this happened is implausible. Nevertheless, it seems to me impossible to conclude that access to and cross-examination on the subpoenaed documents could not have made a difference to the verdict."

[88]

[40] As the decision in R v Spizzirri shows, where documents are not disclosed in breach of this obligation, this Court cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure. It is enough that the opportunity which the defence was denied "could have made a difference to the verdict".

[89]

[41] There is a real possibility that the appellant suffered some forensic disadvantage in the present case. Some of the assertions in the victim impact statement were the very kind of thing which the Crown Prosecutor had argued to the jury could have damaged the complainant's credibility. In these circumstances, it seems to me that the Crown cannot be heard to say that this material could not have made a difference to the verdict.

[90]

[42] In summary in relation to this ground, I am unable to say that the loss of the opportunity to cross-examine the complainant was not a material disadvantage to the appellant. The loss of this opportunity because of the failure of the prosecution to perform its obligations of disclosure goes to the root of the fairness of the trial. The opportunity in question was not illusory. In such a case, there is no room for the application of s 668E(1A) of the Criminal Code.[9]

[91]

[43] Accordingly, I would uphold this ground of appeal.

[92]

[44] The sentence imposed on the appellant was within the range of sentences indicated by the decision of this Court in R v Waerea; ex parte A-G (Qld)[10] and R v T;

[93]

ex parte Attorney-General of Queensland.[11]

[94]

[45] In this case, the appellant was convicted after a trial. He showed no remorse for his serious breach of trust to initiate sexual relations with the complainant. There was a substantial disparity in their ages. He was 39 years old at the time of the offences and the complainant was 14 years of age.

[95]

[46] On the appellant's behalf, it is said that the decision of this Court in R v Beesley[12] suggests that the sentence imposed in this case was excessive. In R v Beesley the offender pleaded guilty to offences of maintaining an unlawful sexual relationship, three counts of indecent treatment, and two counts of unlawful carnal knowledge. He was in a position of trust which he abused. He also provided the complainant, who was aged 14 to 15 years at the time, with alcohol. She was a virgin. His appeal was allowed and this Court imposed a sentence of four years imprisonment with release after serving 12 months. On the appellant's behalf it is said that the offending in R v Beesley was more serious than in the present case. It must be borne in mind, however, that there was not as serious a breach of trust involved in

[96]

R v Beesley, and that the offender had the benefit of a plea of guilty.

[97]

[47] I am unable to accept the submission made on the appellant's behalf that a sentence of four years imprisonment in respect of unlawful carnal knowledge committed in circumstances of deliberate breach of trust and where there was such a significant disparity in age between complainant and offender is outside the range of a sound exercise of the sentencing discretion.

[98]

[48] Because I have come to the conclusion that the appeal against conviction must be allowed because of the non-disclosure of relevant information by the prosecution, it is unnecessary to determine the application for leave to appeal against sentence. That having been said, I should say for the sake of completeness that I would not have been disposed to interfere with the sentence imposed in this case.

[99]

[49] I would allow the appeal against conviction, set aside the convictions and order that there be a retrial on all counts.

[100]

[50] CULLINANE J: I agree, for the reasons given by Keane JA that the appeal should be allowed, the convictions set aside and new trials ordered.

[101]

[51] JONES J: I have read the reasons prepared by Keane JA. I respectfully agree with those reasons and the orders proposed. The appeal should be allowed, the convictions set aside and new trials ordered.

[102]

[1] R v C [1999] QCA 246; [2000] 2 Qd R 54 at [32]; R v H [1999] 2 Qd R 283, see also 293 - 294.

[103]

[2] [2005] HCA 81; (2005) 224 CLR 300 at 317 [45].

[104]

[3] [1984] HCA 85; (1984) 154 CLR 404 at 451.

[105]

[4] R v Bryer [1994] QCA 547; (1994) 75 A Crim R 456 at 478; Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 at 189.

[106]

[5] Cf Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 318 [46].

[107]

[6] R v Bryer [1994] QCA 547; (1994) 75 A Crim R 456 at 478.