R v Kemp [1995] QCA 386

[1995] QCA 386

Court of Appeal (Qld)|1995-08-29|Before: Before Fitzgerald P, Davies J, Shepherdson J, Fitzgerald P

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At a glance

Source facts

Court

Court of Appeal (Qld)

Decision date

1995-08-29

Before

Before Fitzgerald P, Davies J, Shepherdson J, Fitzgerald P

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

For the reasons I have given, the case also required a number of other directions to be given which were not given. First the learned trial Judge, in my view, should have told the jury what use could be made of evidence of sexual conduct other than those particularised in counts 2 to 12. He should have told them that it was admissible on two bases only: the first as evidence of acts which the jury could conclude were offences for the purpose of deciding whether the appellant was guilty of the offence under s.229B; and the second as evidence of similar facts showing the relationship between the appellant and the respondent; S. at 271, 275, 279 and 281. His Honour should have emphasised to the jury that that evidence should not be substituted for the evidence on the specific counts 2 to 12 in order to convict the appellant of any of those specific offences; and he should have told them that that evidence should not be used to convict the appellant in respect of any of the offences of which he was charged on the basis that it showed a general disposition to commit offences of that kind.

[2]

Secondly his Honour should have told the jury that, in order to convict the appellant of the offence under s.229B, they must be satisfied that on three or more occasions the appellant had done an act of the defined kind; that those acts could but need not include one or more of the acts the subject of counts 2 to 12; but that whether they did or not the jury should be agreed upon at least three of the acts as constituting the offences of a sexual nature for the purpose of s.229B whether or not they were acts particularised in the evidence as to dates or exact circumstances.

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Kemp \[1995\] QCA 386

Cases Cited (8)

In O'Neill (C.A. No. 435 of 1994, unreported, judgment delivered 4 August 1995), I discussed, at length, the fundamental right of an accused person not to be tried unfairly. One associated principle is that a trial judge has power to exclude admissible evidence to ensure that a trial is fair to an accused, including evidence made "admissible and probative" by sub-s. 229B(1) of the Code. A variety of circumstances can give rise to the need to exercise that power; for example, that the accused was not adequately informed of part of the case against him in time to challenge and meet it properly, that evidence lacks the necessary specificity to enable the accused to challenge and meet it, or that the prejudicial effect of evidence is disproportionate to its probative value, etc. Further, and more importantly in the present case, when evidence with a potential for unfairness to the accused is received, the trial judge's summing-up to the jury must include whatever directions are necessary to ensure that the accused's trial is fair. There are many recent authorities which bear out these propositions; see, for example, Bradley (1989) 41 A.Crim.R. 297; Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79; S. v. R. [1989] HCA 66; (1989) 168 C.L.R. 266; R. v. Turney (S.A. CCA No. 305 of 1989, unreported, judgment delivered 18.1.90); Podirsky v. R. (1990) 3 W.A.R. 128; R. v. Butun (W.A. CCA No. 191 of 1990, unreported, judgment delivered 15.2.91); R. v. Cooper ( Vic. CCA No. 92 of 1991, unreported, judgment delivered 6.12.91); R. v. Beserick (1993) 30 N.S.W.L.R. 511; R. v. O'Brien (N.S.W. CCA No. 60483 of 1992, unreported, judgment delivered 5.11.93); R. v. Fisher (C.A. No. 439 of 1994, unreported, judgment delivered 12.12.94); G. v. R. (S.A. CCA No. 13 of 1995, unreported, judgment delivered 4.4.1995); R. v. Thorne (Vic. CCA No. 33 of 1995, unreported, judgment delivered 9.6.95): cf. R. v. Hamzy (N.S.W. CCA, unreported, judgment delivered 5.8.94).

Of course, the right of an accused person not to be tried unfairly is not concerned only with the reception of evidence and the trial judge's responsibility in summing-up to the jury. Thus, for example, sub-s. 567(2) of the Code permits the joinder in a single indictment of charges for more than one indictable offence "if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose", and specific provision is made in sub-s. 229B(2) for a single indictment to include charges for an offence against sub-s. 229B(1) and any other offences "of a sexual nature alleged to have been committed by [the accused person] in the course of the relationship in issue in the ... offence ..." against sub-s. 229B(1). (Sub-section 229B(2) also states that an accused "... may be convicted of and punished for all or any of the offences so charged ...", although a proviso limits the sentencing discretion.) However, s. 597A empowers the Court to order separate trials in respect of offences joined in the same indictment if "the accused person may be prejudiced or embarrassed in his defence ... or for any other reason it is desirable ..." that there be separate trials, and the special risk of unfairness to an accused against whom sexual offences are joined in one indictment has been authoritatively recognised: e.g., in De Jesus v. R. [1986] HCA 65; (1986) 61 A.L.J.R. 1; and R. v. B. [1989] 2 Qd.R. 343. Separate trials can be ordered if the evidence which the prosecution proposes to adduce in relation to a count alleging an offence against sub-s. 229B(1) cannot be satisfactorily restricted to prevent unfairness to an accused person in relation to other counts alleging specific sexual offences; often, all the offences will be able to be tried together on the basis that the prosecution will not offer evidence which would make the trial unfair to the accused.

Ultimately, if all offences are tried together and all evidence tendered by the prosecution is received, it remains the trial judge's duty to ensure that the trial is fair to the accused by his or her summing-up to the jury. It is by reference to that consideration that the present matter falls to be decided. Section 229B of the Code does nothing to lessen a trial judge's responsibility in that regard; on the contrary, it commonly places a significantly increased burden on the trial judge. Thus, for example in a case like the present, the summing-up must take account of the difficulties faced by an accused person when charged not only with specific conduct but with such an inherently broad and imprecise concept as a "relationship" of a particular character; as used in this case, s. 229B involves a significant departure from the traditional requirement that an accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act matter or thing alleged as the foundation of the charge": Johnson v. Miller [1937] HCA 77; (1937) 59 C.L.R. 467 at p. 489, per Dixon J.; see also Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at 362, where his Honour said that a person is not to be convicted on "inexact proofs, indefinite testimony, or indirect inferences".

The critical issue for the jury in the present case was the truth and accuracy of the complainant's evidence. Preference for her evidence over that of the appellant, and even positive disbelief of his evidence, did not absolve the jury from the duty to acquit the appellant unless satisfied beyond reasonable doubt of the credibility and accuracy of the complainant's evidence, or the trial judge from the obligation to instruct the jury clearly that that was its duty: see Liberato v. R. [1985] HCA 66; (1985) 159 C.L.R. 507; e.g., per Brennan J. at p. 515 and Deane J. at p. 519.

The generalised evidence which the prosecution led against the accused - generalised allegations of sexual intercourse between the appellant and the complainant and of him penetrating her digitally and otherwise touching her sexually - presented special risks of unfairness to the accused which had to be addressed in the summing-up. The relevance of such evidence in relation to an alleged contravention of sub-s. 229B(1) is clear, and the prosecution submitted that, in any event, the evidence was admissible in relation to all offences alleged against the appellant as evidence of his "guilty passion" for the complainant. Once properly received for any purpose, the evidence was probative of any other matter in relation to which it was also admissible: B. v. R. [1992] HCA 68; (1992) 175 C.L.R. 599.

Further, there are obvious problems associated with evidence of the relationship between a complainant and an accused which alleges the commission of other offences by the accused and hence, because of his criminal conduct or character, his propensity to offend, leading in turn to an inference that he committed the offence or offences with which he is charged. As a matter of principle, it is difficult to perceive why the admissibility of such evidence should not be subject to the test for propensity evidence established in Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292 and Pfennig v. R. [1995] HCA 7; (1995) 127 A.L.R. 99; however, that need not be decided in this case, which is primarily, at least, concerned with the adequacy of the trial judge's summing-up.

Charges of multiple sexual offences by an adult against a young child living in the same household may create difficulties for a fair trial, that is one which is fair not only to the accused but also to the complainant and to the State representing the community concerned to see justice done according to law. Often the trial takes place a considerable time after the commission of the offence, a common reason being the conduct of the offender or at least his relationship with the complainant, involving a position of dominance over the complainant. For that reason and also because of the frequency of offences over a prolonged period, the complainant may be unable to specify, with the particularity which is commonly required in criminal offences, the time, place and circumstances of any specific offence. Yet the failure to particularise to that extent may result in a mistrial: S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266.

(1989) 167 CLR 590