R v Irlam; ex parte A-G [2002] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION: R v Irlam; ex parte A-G [2002] QCA 235

PARTIES: R / v / IRLAM, Irvan David / (appellant) / R / v / IRLAM, Irvan David / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)

FILE NO/S: CA No 157 of 2002 / CA No 173 of 2002 / DC No 16 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against convictions; / Sentence appeal by A-G (Qld)

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 28 June 2002

DELIVERED AT: Brisbane

HEARING DATE: 26 June 2002

JUDGES: de Jersey CJ, Davies and Williams JJA / Judgment of the Court

ORDER: In Appeal No 157 of 2002: Appeal against convictions dismissed.In Appeal No 173 of 2002: Attorney-General’s appeal against sentence allowed; on count five (rape), set aside the penalty imposed, and in lieu thereof, order that the respondent be imprisoned for seven years, with a recommendation that he be considered eligible for post prison community based release after serving two years of that term.In Appeal No 173 of 2002: Order that a warrant issue for the arrest of the respondent.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where appellant convicted of multiple counts of indecent dealing and one of rape – where sentenced to five years’ imprisonment – where appellant appeals against conviction / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE – GENERAL PRINCIPLES – whether trial judge erred in taking too much account of the respondent’s characteristics at the time of sentencing – where respondent wheelchair bound after suffering strokes – where offences occurred over 30 years ago – whether disproportionate attention was given to his age, state of heath and the circumstance that his medical condition necessitated incarceration in southern Queensland away from his family – whether the sentencing discretion of the trial judge miscarried to the point where the sentence imposed is manifestly inadequate / EVIDENCE – BURDEN OF PROOF PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE –CORROBORATION – WHAT CONSTITUTES – whether trial judge erred in admitting evidence of two witnesses in respect of 4 of the counts – where the two witnesses could not remember the date of the offences – where the witnesses noted that the sexual impropriety occurred “regularly” – where the witnesses’ evidence was potentially corrobative – whether this evidence was of more than merely slight probative value and left to the jury notwithstanding its prejudicial effect / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where it was contended that the jury's verdicts were inconsistent – where three counts occurred on the same day but the jury acquitted on the third count – whether the trial judge had given directions as to the selective acceptance and rejection of a witness’s evidence, in whole or part, and as to the possibility of differential verdicts – whether a reasonable jury could have acquitted on the third count / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether the verdict was unsafe and unsatisfactory based upon the differential nature of the verdicts and the age of the alleged events – whether the trial judge appropriately warned the jury as to the potential risk of convicting on evidence of events which occurred long ago – where, having reviewed the evidence, the convictions were safe and satisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERARTION OF SUMMING UP AS A WHOLE – where the jury was directed on the standard of proof – whether direction was adequate – whether the trial judge had added explanatory gloss to the classical formulation of proof beyond reasonable doubt – where there was elaboration but it was insufficient to invalidate the summing up / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether trial judge erred in finding that there was sufficient particularization of the occasions of the counts / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether the trial judge erred in admitting evidence of the appellant having improperly dealt with the complainant on occasions other than those the subject of the counts charged – whether the direction to the jury was adequate – where the evidence was properly admitted / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent school teacher charged with nine counts of indecent dealing and one count of rape of a female student – where respondent convicted of five counts of indecent dealing and one count of rape – where sentence of five years’ imprisonment imposed for rape conviction – where sentence to be suspended after 12 months – whether sentence manifestly inadequate / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE –OFFENCES AGAINST THE PERSON – whether sentence manifestly inadequate – whether too much weight was given to respondent’s ill health and other mitigating factors in sentencing – where mitigating factors need to be weighed against the gravity of the offences committed - whether sentencing judge erred in giving inadequate weight to mitigating factors / Dawson v R (1961) 106 CLR 1, applied / Green v R (1971) 126 CLR 28, applied / Holman v R [1997] 1 Qd R 373, applied / Ketchup v R [1982] Qd R 732, applied / KRM v R (2001) 75 ALJR 550, applied / MacKenzie v R (1996) 190 CLR 348, applied / R v C [2002] QCA 82, considered / R v C CA 262 of 1991, considered / R v D’Arcy [2001] QCA 325, considered / R v F CA 418 of 1996, considered / R v M [1995] 1 Qd R 213, applied / R v M [1997] 1 Qd R 404, applied / R v Parsons CA 298 of 2000, considered / R v S [2000] 1 Qd R 445, applied / R v Sakail [1993] 1 Qd R 312, applied

COUNSEL: S G Durward SC for the appellant in Appeal No 157 of 2002 / M J Copley for the Director of Public Prosecutions (Queensland) in Appeal No 157 of 2002 / M J Copley for the Attorney-General (Qld) in Appeal No 173 of 2002 / S Durward SC for the respondent in Appeal No 173 of 2002

SOLICITORS: Giudes & Elliott (Townsville) for the appellant in Appeal No 157 of 2002 and for the respondent in Appeal No 173 of 2002 / Director of Public Prosecutions (Queensland) for the respondent in Appeal No 157 of 2002 and for the appellant in Appeal No 173 of 2002

THE COURT: The appellant, I D Irlam, appeals against his conviction (on 11 May 2002) on six counts of sexual offending. For the most serious offence, rape, he was sentenced to five years’ imprisonment, to be suspended after 12 months. The Honourable the Attorney-General separately appeals against sentence.

The convictions relate to three counts of indecent dealing with a girl under 12 years of age, on dates unknown between 1 April 1969 and 31 December 1969; one count of rape committed on a date unknown between 31 December 1969 and 1 January 1971; and two counts of indecent dealing with a girl under 17, committed on dates unknown between 31 December 1970 and 1 September 1971. The appellant was acquitted on four counts: one of indecent dealing with a girl under 12 years of age, on a date unknown between 1 April 1969 and 31 December 1969; and three of indecent dealing with a girl under 16 years, between 31 December 1970 and 1 September 1971. The complainant was, in respect of all counts, the same person.

Before dealing with the grounds of appeal, it is necessary that we set out some detail of the case as presented before the jury. The appellant was, at relevant times, the head teacher of a two-teacher school in North Queensland. The complainant, born in 1959, attended that school, and was taught by the appellant in grades five, six and seven, while she was aged 10 years to 12 years. We turn to the counts on which the appellant was tried.

Count one (indecent dealing – not guilty)

The appellant was acquitted on the first of the counts, which on the complainant’s evidence concerned events which occurred in 1969 in the classroom. It was an allegation of indecent dealing. The complainant gave evidence that she took her story about Anzac Day to the teacher’s desk so that he could give it a “good work” stamp. Having done so, the appellant put his hand up the back of her dress, inside her underpants, and rested his fingers on her vagina. This was the first incident of indecent dealing of which the complainant complained. Her evidence was that she froze. She surmised, looking at the class, that no one else had seen it – although conceding that she first expressed that point at the trial.

The complainant said that this activity became a regular occurrence, happening “perhaps almost daily”. Of the other witnesses, two called by the prosecution, Prossliner and Clayton, students at the school during parts of the period 1969-1971, were not questioned about whether they witnessed conduct of that character; whereas former students called by the defence (Bates, a student until 1970, the appellant’s daughter Thomassen who was there until 1970, and Trail – until 1972) all said that they never saw the appellant with his hand under the complainant’s dress.

Count two (indecent dealing – guilty)

Not long after the incident giving rise to count one, the complainant was given the task of maintaining in tidy condition the storeroom adjacent to the classroom. One day, in 1969, the complainant asked the appellant the meaning of a reference in a story to a “womb”. The complainant was later in the storeroom. The appellant entered the room and told her that he would show her where her womb was. He put his hand under her dress and inside her underpants, and put fingers in her vagina.

Count three (indecent dealing – guilty)

On another occasion in 1969, the appellant and the complainant were both present in the storeroom. The appellant was seated on a chair, with his pants off and his penis erect. He locked his legs around her waist and pulled her into him, telling her that as she was ten, she was old enough to do something. He put her hand on his penis and moved it up and down, saying “it’s just like milking cows”. He removed his hand, with the complainant continuing until the appellant ejaculated.

Count four (indecent dealing – guilty)

On this occasion, which the complainant thought was in 1969, she and the appellant were both present in the storeroom. The appellant said to her: “Come to daddy.” His trousers were off. After asking her if she liked lollypops, he said that she was “getting good at this and we’ll try some new things”. He then caused her to perform oral sex on him. The complainant recalled that she was crying, with her tears falling onto his shoes.

When cross-examined, the complainant accepted that although at the trial she said she thought this offence occurred in 1969, she had previously said that the offences involved in counts three and four could have occurred in 1970 or 1971.

The complainant’s position was that she had “vague recollections of other incidents” – other, that is, than those involved in counts one to four, but was not able to give evidence about them with sufficient precision.

Count five (rape – guilty)

The complainant gave evidence that on an occasion in 1970 in the storeroom, while she was in grade six, the appellant was seated on a chair with his pants off. He told her that he was the “spider”, he turned her so that her back faced him, and with the complainant straddling the appellant’s legs, the appellant’s penis entered her vagina. She later noticed blood on her panties, something which had not happened before. She said that she could recall other things but not in sufficient detail to give evidence about them.

The appellant, who gave evidence at the trial, denied having sexually abused the complainant in the storeroom. He said that if he went there, it was “mainly” with his daughter and “not particularly with (the complainant)”.

Other witnesses gave evidence bearing on the prospect of the complainant’s being present in the storeroom with the appellant. The appellant’s daughter said she could not recall the complainant’s having gone to the storeroom any more than any other student with a job to do in there. She left the school at the end of 1970.

Prossliner, at the school until 1970 or 1971, gave evidence of seeing the appellant on “different occasions” pressing himself against the complainant in the storeroom while she was against a wall. Prossliner regularly saw the appellant with his hands around the complainant’s hips, breasts and shoulders. She could not recall if either party reacted when they saw her. She said that she would go to the storeroom to see what she was supposed to do in the classroom, and to “have a look”.

In his summing up, the learned trial Judge pointed out that on Prossliner’s evidence, the incidents of illicit contact between the appellant and the complainant which she saw occurred in 1970 and thereafter, not going back to 1969 as alleged by the complainant; and reminded the jury that in relation to Prossliner’s claims of seeing the complainant and the appellant together, the complainant had no recollection of being observed. The Judge informed the jury that Prossliner’s evidence was “capable of constituting some support for what the complainant says in placing her in that storeroom with Mr Irlam, something that otherwise (the jury) might find hard to accept as having happened”.

Clayton recalled the appellant informing the complainant that they were to tidy the storeroom, whereupon he and the complainant would walk to that end of the building. Clayton said this occurred one to three times per week, involving their absence from the classroom for about 20 minutes.

Trail had no recollection of the complainant’s being told on a regular basis by the appellant to go to the storeroom, and then his following her out.

Count six (indecent dealing – guilty)

This offence occurred in 1971, when the complainant was in grade seven. She became sick at school. The appellant told her to go to the sick bed, located in the library. Later that day, the appellant came into the library, sat beside her on the bed, pulled her head up into his lap and put his penis into her mouth. He could not achieve an erection, became angry and left.

Count seven (indecent dealing – guilty)

Later that same day, the appellant returned. His pants were off and he knelt over the complainant who was on the bed. He tried to put his penis into her mouth. She turned away. He rubbed his penis against the side of her face until he ejaculated in her hair. He then left. The ejaculate stayed in her hair until she got home and showered. She was picked up from school that day by her mother.

Count eight (indecent dealing – not guilty)

On the complainant’s evidence, which was brief, this offence – of apparently fleeting scope – occurred later that same day. She said: “He came back later and sat on the side of the bed and put his hand inside my pants and put his fingers in my vagina”. She was asked: “Are you able to recall how long this happened for?” Her response was: “No. I was too sick. I didn’t care.”

Count nine (indecent dealing – not guilty)

In July 1971, not long after the incident in relation to the sick bed, the complainant’s parents moved to Townsville. The complainant was sent to live with the appellant and his family, until the end of the term.

This allegation of indecent dealing concerned an evening following a bus trip to an athletics carnival in Townsville. On the complainant’s evidence, the appellant woke her up. He was sitting on her bed. He pulled her head up into his lap and put his penis into her mouth, then pushed her down onto the bed, got into the bed and lay on top of her. He tried to have sexual relations with her, but for want of an erection, became angry and left.

The complainant shared the bedroom with one of the appellant’s daughters. They slept in single beds. The appellant said in his evidence that the complainant on no occasion stayed over at the house, and his daughters also gave evidence to similar effect. This was notwithstanding the complainant’s father’s evidence, which was to the effect that the complainant did stay at the appellant’s house for several weeks after the rest of the family moved to Townsville.

The complainant gave evidence of other occasions of impropriety in the appellant’s house, but because she had only “half memories” of them, could offer no detail.

Count ten (indecent dealing – not guilty)

The complainant’s evidence was that while staying at the appellant’s house, she accompanied the appellant, his wife and daughters on a car trip to Cardwell. She was sitting in the front seat between the adults. At one stage, the appellant’s wife left the vehicle. His daughters remained sitting in the back seat. At this point, the appellant put his hand under the complainant’s underpants and put his fingers in her vagina.

At the committal hearing, the complainant had said that she had no recollection of anything untoward having happened on that trip. Her evidence at the trial was that she remembered the incident some five or so months after the committal hearing.

On the other hand, the appellant and his daughters all asserted that the appellant’s wife did not go on that trip. Photographs in relation to the trip were tendered. Neither of them included a photograph of the wife. The appellant’s daughters asserted the complainant had simply been invited along for a day out. Both daughters said that it was the older daughter who sat in front, not the complainant.

We turn now to the grounds of appeal.

Ground one: Evidence of Prossliner and Clayton

The terms of this ground are:

“The Trial Judge erred in admitting the evidence of one, Prossliner and one Clayton:

generally in respect of Counts 2, 3, 4 and 5; and

as supporting evidence in respect of the allegations in Counts 2, 3 and 4 of sexual misconduct:

in a storeroom (Prossliner);

antecedent to the events described by the Complainant as having taken place in a storeroom (Clayton): and

in circumstances where:

the evidence of Prossliner given in testimony before the jury referred (at the least, by implication) to an event in 1971; and

such testimony was admitted, against objection, as evidence of an event having occurred in 1969, 1970 or 1971 (Counts 2, 3 and 4 having been particularized as occurring in 1969); and

Prossliner in a statement to police and in sworn testimony at the committal proceedings, had stated that she ‘mainly remembered Debbie’ (another person) and ‘thought that she remembered (the Complainant)’, although such evidence was not adduced (and could not be adduced) in testimony before the jury.”

As this ground was developed, counsel for the appellant emphasized the circumstance that Prossliner spoke of seeing the appellant and the complainant together in the storeroom, not in 1969, and seemingly not earlier than 1971, whereas the “storeroom counts” (numbers one to five) cover the period 1969-1970. There is, however, no reason to confine Prossliner’s evidence to 1971. She said that she was at the school in grades six and seven, which she initially thought covered the years 1969 and 1970. Later she said that she could not remember if she spent grade seven in 1970 or 1971. But on any view, she was at the school in 1970, which embraces count five (rape). (The learned Judge observed to the jury that the evidence of Prossliner “doesn’t seem to go back as early as 1969”.) Prossliner’s evidence was that she saw the appellant handling the complainant “regularly”.

The appellant conceded that the complainant may have gone to the storeroom, but denied acts of sexual impropriety with her there (or anywhere).

Prossliner’s evidence could have been regarded by the jury as evidencing sexually improper behavior on the part of the appellant towards the complainant, in the storeroom. While it did not confirm the particular conduct constituting the charged offences, it was potentially relevant in placing the appellant in a sexually compromising position with the complainant in the storeroom (in circumstances in which he denied any such behavior), and in placing the complainant in that storeroom – where whether she went there, if so how often, and whether in the presence of the appellant, were matters in issue.

The learned Judge put the matter additionally, and more broadly, on the basis that the evidence may be relevant to dispel a possible, natural reluctance on the part of the jury to believe the complainant’s claims of having been with the appellant in the storeroom, as being inherently improbable claims, in that they related to events during school hours with other children and another teacher about.

The evidence of both Prossliner and Clayton was potentially corroborative because a jury could regard it as “increasing the probability that the complainant’s entire testimony was truthful” (R v M [1995] 1 Qd R 213, 221 per Davies JA). The Prossliner evidence of events, even if only from 1970, was potentially corroborative in relation to both the rape allegation concerning that year, count five, and the counts of indecent dealing in 1969, on the basis discussed in R v M [1997] 1 Qd R 404, 409-410 (per McPherson JA and Demack J) and R v Sakail [1993] 1 Qd R 312, 319 (per Macrossan CJ). The evidence was of more than merely slight probative value, and rightly left to the jury notwithstanding its prejudicial effect.

As to any “firming up” in the recollection of Prossliner as between the time of committal and the time of trial, a matter known to the court but not to the jury, in that at the committal she said she only “thought” that she recalled the complainant being in the storeroom, that circumstance did not necessitate the exclusion of the evidence at the trial, the credibility of that evidence falling to be tested in the usual way – as did indeed occur.

Ground two: inconsistency of verdicts

This ground contends:

“The verdicts in respect of Counts 6 and 7 are unsustainable in circumstances where:

a verdict of not guilty was returned in respect of Count 8; and

Counts 6, 7 and 8 referred to allegations of sexual misconduct in a library on the same day; and

the Complainant’s evidence must have been rejected.”

(We have deleted from (c) words not relied on at the hearing of the appeal.)

The appellant’s contention is that because the three incidents involving counts six, seven (in respect of which he was convicted) and eight (in respect of which he was acquitted) occurred on the same day in the sick room, there being no potentially corroborative evidence, with the applicant denying all three allegations, there was no rational basis upon which the jury might have returned differential verdicts. The appellant submitted that the jury could not have accepted the complainant’s credibility in respect of counts two to seven while rejecting it in relation to counts one and eight-ten.

There is particular reason why, accepting the basic credibility of the complainant, the jury could have been especially disposed to convict on counts two to five. That rests in the potentially corroborative evidence of Prossliner and Clayton, not available in relation to the counts on which the jury acquitted the appellant.

As to counts one, nine and ten, on which the appellant was acquitted, there was in each case evidence other than the complainant’s (or the appellant’s), on which the jury could rationally have relied in determining that guilt had not been established beyond reasonable doubt.

This ground of appeal focuses on counts six and seven, in respect of which the appellant was convicted, and count eight, which resulted in acquittal. The jury was given orthodox directions as to the selective acceptance and rejection of a witness’s evidence, in whole or part, and as to the possibility of differential verdicts. Is their conviction on counts six and seven, though acquitting on eight, “an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty” (MacKenzie v R (1996) 190 CLR 348, 368)? We believe not, for reasons to do with the apparent quality and scope of the evidence.

In our brief recitation above of the circumstances of the respective counts, we set out the words given in evidence by the complainant in relation to count eight, when she was asked: “Are you able to recall how long this happened for?”, to which she responded: “No. I was too sick, I didn’t care.” It may well be that the jury felt that response condemned her recollection of this incident, an incident of apparently very brief duration and not particularly notable in her recollection. It was an incident which, furthermore, was not marked by particularly distinctive features as was the case in relation to counts six and seven. Count six, for example, was distinctive for the appellant’s having become angry at his inability to achieve an erection, and count seven was distinctive for the circumstance of his ejaculating into the complainant’s hair, the ejaculate staying there until she showered at home. The jury may have felt, in the context of claimed regular misconduct of one form or another, that the complainant’s recollection of this comparatively non-distinctive instance was not reliable. We consider this to be a rational possible explanation for the differing verdicts, sufficient for the purposes of appeal.

We have in mind also these observations of Gaudron, Gummow and Kirby JJ in MacKenzie, pp 367-8:

“Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.”

The ground was not established.

Ground three – unsafe and unsatisfactory

The terms of this ground are:

“3.The verdicts of guilty are, in all the circumstances, unsafe and unsatisfactory, for reasons that include:

(a)the rejection of the evidence of the Complainant on Counts 1, 8, 9 and 10 where, despite the very significant passage of time, the accused was able to produce evidence from surrounding circumstances capable of contradicting the Complainant’s evidence on Counts 1, 8, 9 and 10 and was found not guilty by the jury; and

(b)the accused being unable to produce objective evidence from surrounding circumstances or otherwise that was capable of contradicting the Complainant’s evidence on the remaining Counts.”

The ground obliges the court to review the case in order independently to determine whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant (R v M (1994) 181 CLR 487, 493). The particulars of the ground deal with the differential nature of the verdicts, and the age of the alleged events.

As mentioned in relation to ground two, the acquittal on counts one, nine and ten is explicable on the basis that the evidence of persons other than the appellant was sufficient to create a reasonable doubt in the mind of the jury. There was rational basis of a different character for the acquittal in relation to count eight.

In addition, the jury may well have considered the allegations involved in counts one, nine and ten to be inherently implausible for their utter brazenness: fondling in front of a class, molestation in a bedroom not merely adjacent to the appellant’s wife’s but also occupied by one of his daughters, and digital penetration in a car while the appellant’s daughters were present on the back seat.

On the other hand, counts two to seven, which resulted in conviction, concern events alleged to have occurred when the appellant was alone with the complainant, and therefore the better able to exert his will. Additionally, the convictions on counts two to five gain support from potentially corroborative evidence.

The jury had the benefit of seeing and hearing from both the complainant and the appellant. It is clear that the jury rejected the evidence of the appellant, whereas they accepted the complainant’s save in relation to count eight, there being a rational explanation for that degree of selectivity. In not accepting the credibility of the complainant on court eight, the jury should not reasonably have been obliged to reject her credibility on all counts.

The learned Judge warned the jury appropriately as to the potential risk of convicting on evidence of events which occurred long ago, because of the difficulty of comprehensively testing or countering the evidence should it happen to be false.

Having reviewed the evidence, we do not consider that the convictions are unsafe and unsatisfactory on the basis particularized by the appellant.

Direction on standard of proof

There is an aspect of the summing up which, while not the subject of a ground of appeal, warrants mention in this context. That is the learned Judge’s direction to the jury on the standard of proof. His Honour said this:

“Before you can convict the defendant on the count you consider for the moment you must be satisfied that the prosecution has proved every element of that particular offence beyond reasonable doubt.

As you have heard from counsel, legal people are not able to help jurors with explanations of what is a reasonable doubt although sometimes juries ask for assistance. Reasonable doubt is an ordinary English expression. The words mean what they say. They refer to a doubt that is based on reason and commonsense. They do not extend to something fanciful or imaginary that I suppose could always be thought up for the purpose of doing the unpleasant duty of pronouncing a fellow citizen guilty of a criminal offence.

A doubt is reasonable and an insuperable barrier in the way of a conviction on the count you are looking at for the moment if you think it is reasonable. There may be doubts that are suggested to you by counsel for your consideration or that you think of in the jury room to be considered which, in the end, you reject as something less than reasonable and not standing in the way of a conviction.

If the stage is reached on a particular count where you are satisfied beyond reasonable doubt that the prosecution has proved the existence of every element of the offence in question your oath requires you to acknowledge that by returning a guilty verdict.

On the other hand, if there is, in your mind, a doubt which you think is reasonable about the proof by the prosecution of just one of the various things that it has to prove to establish a particular count then the defendant’s right is to be pronounced not guilty in relation to that one. There is no legal test of what is a reasonable doubt. You do not have to imagine that you are lawyers or professors of logic or philosophers; it is community standards represented by the juror standards which are applied in determining what is a reasonable doubt. And remember, you cannot convict on a particular account unless you are so sure of the defendant’s guilt that you can say, “There’s no reasonable doubt about it.”

Appellate courts have said many times that trial Judges must resist the temptation of adding explanatory glosses to the classical formulation of proof beyond reasonable doubt, whether in the summing-up or in response to a jury’s request for further assistance (cf. Green v R (1971) 126 CLR 28; Dawson v R (1961) 106 CLR 1, 18; Ketchup v R [1982] Qd R 732, 737; Holman v R [1997] 1 Qd R 373, 380).

The Supreme and District Courts of Queensland Benchbook sets out this orthodox direction:

“For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict you must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will explain these elements later.

It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence. If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict: that is, to find the defendant guilty.”

The Benchbook also suggests that in response to any request from a jury for further assistance, the Judge should say no more than this:

“A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable. If at the end of your deliberations, you, as reasonable persons, are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt.”

The first passage in the summing-up which attracts particular attention is:

“The words mean what they say. They refer to a doubt that is based on reason and commonsense. They do not extend to something fanciful or imaginary that I suppose could always be thought up for the purpose of doing the unpleasant duty of pronouncing a fellow citizen guilty of a criminal offence.”

Presumably the learned Judge meant to say, and maybe said, “for the purpose of (avoiding) doing the unpleasant duty…”

In Green supra, p 33 the High Court strongly deprecated reference to “doubt founded on reason”. By using that expression and others, the trial Judge in Green was regarded as having invited the jury to analyse unduly “their own mental processes”. This summing-up lacks the many additional confusing and erroneous elaborations which caused the High Court to condemn the summing-up in Green. But that said, we use the occasion to emphasize yet again the undesirability and potential danger of a trial Judge’s engaging in any elaboration beyond the time-hallowed terms. Desirably, the passage reproduced in para [56] above should not have been included in the summing-up. We make it clear, however, that read as a whole, His Honour’s direction to the jury on this aspect did not invalidate the summing-up.

We additionally query His Honour’s statement: “It is community standards represented by the juror standards which are applied in determining what is a reasonable doubt.” As put in Green (p 33):

“A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstance.”

A juror faced with this direction may conceivably have felt he or she had to seek to discern “community standards” and then apply them, though he or she may not personally support them. The reference to community standards in this context was unnecessary, and potentially confusing and better avoided. But this likewise did not invalidate the summing-up.

Ground four

The terms of this ground are:

“4.The verdicts of guilty are:

(a)against the weight of the evidence; and

(b)contrary to the rejection of the Complainant’s evidence in respect of the Counts upon which the accused was found not guilty.”

The ground adds nothing of relevance to ground three, and is likewise not sustainable.

Ground five – inadequate particularization

This ground asserts:

“5.The Trial Judge erred in finding that there was sufficient particularisation of the occasions or specific events, the subject of the Counts.”

It is obviously necessary to address only the counts which resulted in conviction. Counts six and seven were clearly particularized because of this combination of alleged features: each occurred on the same day in 1971, the complainant being in grade seven, in the sick room, the complainant being sick, and shortly before the complainant’s parents moved to Townsville – which the complainant’s father put as mid-year 1971. The appellant was therefore in a position to comprehend the allegations to the point where he could test them, and if he saw fit, respond to them.

The particulars in relation to counts two to five were substantially less specific. The complainant put counts two to four as having occurred in 1969, in the storeroom, and count five likewise in the storeroom, at some time in 1970. Does lack of further particularity imperil the convictions?

In R v S [2000] 1 Qd R 445, 456 Mackenzie J, with whose reasons the other members of the court agreed, said that “where the question is whether, because of the absence of particularization, some injustice has been done to the appellant whereby he has been prejudiced, it has to be considered with the benefit of hindsight as to what the appellant’s case was at trial.” The appellant’s was that he mainly went to the storeroom with his daughter. He denied there was ever an occasion of impropriety in the storeroom. In such circumstances, in the words again of Mackenzie J in R v S, “it seems no more than a theoretical possibility that had a date been particularized (the appellant) would have given evidence of alibi or evidence differing from a denial of all improper conduct” (p 456).

This ground should not be upheld.

Ground six – evidence of uncharged acts

This ground is in these terms:

“6.The Trial Judge erred in admitting evidence of uncharged acts:

(a)generally in respect of Counts 1 to 4 and 9; and

(b)specifically in respect of the allegations about the storeroom (Counts 2 to 4), in circumstances where the jury returned verdicts of not guilty in relation to Counts 1 and 9.”

The relevant evidence concerned the appellant’s having improperly dealt with the complainant on occasions other than those the subject of the counts charged. The jury was appropriately warned about the limited use it could make of this evidence, the Judge emphasizing that the jury needed to be satisfied on evidence of the conduct particularly alleged in relation to the respective counts, with the other evidence “available…only for a limited purpose of setting a context”. The evidence was admissible to explain the nature of the relationship between the appellant and the complainant (KRM v R (2001) 75 ALJR 550, 556, 557, 576). Vagueness in aspects of the evidence did not necessitate its exclusion. No application for redirections was made in relation to this part of the learned Judge’s summing up. The ground should not be upheld.

The appeal against conviction should accordingly be dismissed.

We turn to the Attorney-General’s appeal against sentence.

Sentence

In respect of the convictions for indecent dealing, the learned Judge imposed the (then) applicable maximum penalties, and for the rape, which he said “came nowhere near the top of the range” in seriousness, five years’ imprisonment. He suspended the sentences after 12 months, apparently mainly because of the additional burden of incarceration in light of the respondent’s poor health, and the necessity of his being imprisoned in Brisbane, which meant that he would probably be largely denied the company of his family, who reside in North Queensland. He was substantially influenced by the approach in R v D’Arcy [2001] QCA 325. The prosecutor had submitted imprisonment for seven years as appropriate.

There certainly were features of D’Arcy, where 10 years’ imprisonment applies, putting it into a much more serious category: three rapes as opposed to one, offences against four different complainants, difference in age (D’Arcy 61, this respondent 75) and health, this respondent being in a much more parlous situation, substantially wheelchair bound and requiring continual care. Such care, we should say, could be provided at a correctional centre in Brisbane. (Like D’Arcy, this respondent had no prior criminal history.)

A particularly serious aspect of this case was the respondent’s breach of the trust of the complainant and her parents, and that of the community generally. He took advantage of his authority over the complainant and subjected her to abuse on a number of occasions over a period of nearly two and half years, when she was aged only 10 to 12 years, and he was substantially older – in his mid-40’s. The persistence of his offending is a matter of gravity, as obviously is the effect on his vulnerable very young victim.

Broadly relevant prior cases would suggest the penalty imposed here was markedly lenient.

(a) In R v C [2002] QCA 82, the court on appeal upheld a sentence of six years’ imprisonment, imposed after trial, in relation one count of rape committed on a 15 year old girl (this complainant was 11 or 12.) This offence occurred in 1999 so the complaint was prompt. However, the 61 year old offender was in a position of trust: he and his wife had held themselves out as carers for wayward or displaced children. The complainant had left home and was raped shortly after arrival at the offender’s house. The offender was in remission from chronic lymphatic leukemia; there was a possibility he might die in prison.

In R v Parsons CA 298 of 2000, the court upheld a sentence of eight years’ imprisonment for one instance of rape occurring in 1983 in relation to a 12½ year old stepdaughter. The case involved a threat of violence were the girl to complain. There was no suggestion the offender suffered ill health. The rape occurred when the offender was looking after the girl, her mother being absent.

In R v C CA 262 of 1991, a sentence of eight years with parole after two was sustained in circumstances where the offender had pleaded guilty to one count of rape committed on his nine year old stepdaughter. Again, however, there was no suggestion of ill health on the prisoner’s part.

In R v F CA 418 of 1996, the offender was sentenced to eight and a half years’ imprisonment for one count of rape, with lesser terms for six counts of indecent dealing, all committed upon the 13 year old daughter of his de facto wife. He had an insignificant prior history. The offending behavior persisted over seven months, and continued notwithstanding the mother’s intervention. The court considered the sentence to be at the higher end of the range, but dismissed the appeal.

The objectively serious features of this respondent’s behavior were given insufficient weight, with disproportionate attention given to his age, state of health and the circumstance that his medical condition necessitated incarceration in southern Queensland. The learned sentencing Judge recorded his “anxiety” to ameliorate that “significant feature”: it appears to us, with respect, to have forestalled proper allowance for the important aspects of punishment and, more significantly, general deterrence. Those in charge of children should be left under no misapprehension as to the severity of likely penalty should they offend in this way.

While an offender’s ill health is a mitigating factor in circumstances where imprisonment will lead to additional burdens beyond those experienced by others, that feature must not be allowed to overwhelm appropriate reflection of the grave nature of offences like these.

The sentencing discretion miscarried to the point where the sentence imposed is unsustainably lenient. As it stands, it may regrettably be taken to suggest a reprehensible serious offender may escape appropriately salutary punishment because of serious subsequent ill-health. Where the correctional system can accommodate him, he should serve a sufficient term: the community, and especially his victim, would fairly expect that.

There being no realistic prospect of the respondent’s reoffending, the respondent would – while this rape sentence stands – be seen as incarcerated for 12 months for, while a school head teacher in his mid-40’s, raping an 11 year old student, in the context of other regular and substantial additional sexual mis-handling. Even after allowing for the parlous state of his health, and the considerable age of the events, the leniency of that penalty is patently unacceptable. The state of his health should not substantially limit incarceration for the reason that the system can appropriately accommodate him. That being so, he should serve an ordinarily expected term, moderated to some extent to reflect his being a north Queenslander to be jailed in the south, and to some extent to recognize additional difficulty for him while in jail because of his state of health. But beyond that, natural compassion should not be allowed to nullify reasonable community expectations as to the due punishment of those who seriously prey upon vulnerable young children.

Working from the 10 year term imposed in D’Arcy, imprisonment for seven years is appropriate for this offence of rape.

Ordinarily, the matter having gone to trial, that penalty would not attract any post prison community based release recommendation. But in view of the respondent’s parlous health, the consequent added burden of incarceration, his age, and likely restriction on contact with his North Queensland family, there is special reason to recommend eligibility for post prison community based release at a stage earlier than after three and a half years. A recommendation of eligibility after two years should be made.

The psychiatric evidence before the court suggests intellectual impairment following strokes. We express the hope that resultant difficulty in the respondent’s completing courses usually regarded as pre-requisite for such release will not prevent its being granted.

The orders are:

appeal against convictions dismissed.

Attorney-General’s appeal against sentence allowed; on count five (rape), set aside the penalty imposed, and in lieu thereof, order that the respondent be imprisoned for seven years, with a recommendation that he be considered eligible for post prison community based release serving two years of that term; and

order that a warrant issue for the arrest of the respondent.