R v L [1996] QCA 316

His appeal against conviction is on three grounds, one of which was added by leave today. This was that the learned trial Judge failed to adequately direct the jury in relation to the elements of the offence of maintaining an unlawful sexual relationship. The other ground asserted that the verdicts were inconsistent and that the verdict on which the appellant was convicted was unsafe and unsatisfactory.

The appellant and his wife married in 1983 and the complainant, S, was born on 8 February 1984. After an early separation the appellant and his wife finally separated on 17 December 1992 although, as will appear from what I say, the appellant continued to stay on occasions at the residence occupied by his wife and the complainant. After the complainant's parents separated she remained living with her mother at First Avenue, until May 1993 when they moved to Murrawong Street. The appellant, after separation, moved to premises at Winston Drive.

According to the complainant's evidence, the appellant engaged in unlawful sexual acts upon her on about 15 occasions over a period of about 18 months from the time when he left the matrimonial home. About five of them occurred at First Avenue and about ten at Winston Drive. They followed a similar pattern, accurately described by the learned trial Judge as simulated intercourse ending in ejaculation followed by a joint shower with further indecencies and, on two occasions, manual manipulation of the complainant by the appellant.

There could have been no doubt that, if the jury substantially accepted the complainant's evidence, the appellant was guilty of maintaining an unlawful sexual relationship with her. It is in this context that it is necessary to consider the appellant's new ground of appeal which complains about the learned trial Judge's direction as to the elements of the offence. The complaint focuses in particular upon the following sentence in the learned trial Judge's directions:

"To establish this charge the Crown have to prove to your satisfaction beyond a reasonable doubt that between the dates set out in the charge the accused as an adult has done an act to constitute an offence of a sexual nature in relation to the child on three or more occasions."

That direction was, in my view, correct. It was necessary, in order to prove the charge, to prove that the appellant committed an offence of a sexual nature upon the complainant on three or more occasions - that is, in effect, what section 229B provides. His Honour did not say, as the appellant, at least in his written submissions, contended he did, that if all that is established the offence was proved and it was unnecessary, in my view, in the factual context of this case to consider that question.

To convict the appellant, the jury had to accept the complainant's evidence. The learned trial Judge told them that the assessment of her evidence would be their most important task and that in order to convict the accused of any of the charges they would have to be satisfied beyond a reasonable doubt that she was both truthful and reliable. It was plain that if they accepted her as a truthful and generally reliable witness, though they might conclude that she was mistaken about dates, they would be satisfied that the appellant had committed sexual offences against her on about 15 occasions over a period of a year and a half. Consequently, no question arose as to whether three or four or even five such offences would have been sufficient to constitute the offence of maintaining an unlawful sexual relationship over that period. The learned trial Judge gave detailed directions to the jury about assessing the truthfulness and reliability of the complainant. There is therefore, in my view, no substance in this ground of appeal.

The inconsistency alleged was between the acquittal on counts 2 and 3 and the conviction on count 1. Mr Rafter accepts, as I think he was bound to, that he had difficulties in establishing this ground. The complainant had difficulties in fixing the dates of the specific counts. Count 2 was alleged to have occurred on 14 August 1993 because that was the date on which it was proved that a movie, "Blue Steel," was broadcast on television.

In one of her statements she identified an occasion on which they were watching that movie as one on which one of the sexual offences occurred. It appears, however, that it had been broadcast in 1992 and 1993 and that the complainant had seen it several times including on video. Moreover, in her earliest statement she referred to "a movie or series or something," though it was not clear whether this was a reference to the same or some other occasion. In short, the jury would have been entitled to doubt whether the date specified in count 2 was the date on which one of the sexual offences occurred. The learned trial Judge had instructed them that they had to be satisfied beyond reasonable doubt as to that date in order to convict on count 2. Their failure to be satisfied also accounts for their acquittal on the circumstance of aggravation on count 1.

There were similar difficulties with respect to count 3, though it specified a date unknown between 24 December 1992 and 1 February 1994. This count was intended to identify an occasion "around Christmas time" when the complainant was at her father's premises, having purchased a book pack for school in the following year. But her evidence did not make it clear whether this was Christmas 1992 or 1993 and whether it was before or after Christmas. It was therefore possible that the incident which she recalled on this occasion occurred around Christmas 1992 but before 24 December 1992. The learned trial Judge warned the jury on this count also to exercise great caution in this respect. Those facts, in my view, would have justified the jury in acquitting on counts 2 and 3 but nevertheless convicting on count 1.

The more general ground that the verdict was unsafe and unsatisfactory relied on inconsistencies in the complainant's various accounts. She had furnished four statements in all: on 18 February 1994, in July 1994, on 20 December 1994 and on 27 May 1995. She was only 11 years of age when she gave the first of these statements. It is not surprising that there are inconsistencies between them.

The learned trial Judge referred to these inconsistencies in his directions to the jury and no complaint is made about his directions in this respect. When these inconsistencies and, in some cases omissions, are looked at more specifically, it can be seen that they were by no means such as would have required a reasonable jury to disbelieve the complainant. The first of them was as to whether, during the course of these acts of simulated intercourse which occurred at First Avenue, the complainant was on top. It appears that sometimes it had been the one, other times the other who was on top. That is over the whole of the period of the commission of these acts. It is not surprising, in my view, that the complainant could not precisely recall who was on top when.

The second specific complaint was that when the complainant first gave a statement in February 1994, she omitted mention of some of the earlier occasions when these offences had occurred. These were the acts at First Avenue about a year before the giving of that statement. There are a number of innocent explanations for this omission. She may have been inhibited when she gave her first statement. She was no doubt apprehensive, apparently being taken out of school to a park across the road where the interview resulting in the statement took place. Moreover, the five offences which occurred at First Avenue appear to have taken place within a fairly short space of time more than a year before this statement was given. I do not see anything suspicious about the complainant's failure to mention them on this occasion when more recent occasions were fresh in her memory.

The next specific complaint was that there were inconsistencies between different versions as to whether the incidents at First Avenue occurred over a couple of months or a couple of weeks. Having regard to the circumstances to which I have already referred, it is not surprising that the complainant could not be accurate as to this. The offences at First Avenue, according to the complainant, occurred on a couch. On one view, the complainant may have been asserting that these occurred up to May 1993 whereas it seems likely, from the complainant's mother's evidence, that the couch was sold in January 1993. This apparent inconsistency was another ground of complaint. However, as the respondent has pointed out in counsel's written outline, while the complainant was not clear as to the dates of the offences at First Avenue, the substance of her evidence was that these events occurred on the couch.

Differences in recollection as to duration of incidents, whether five minutes or five to 10 minutes or 10 to 15 minutes, which were also relied on, could not, in my view, have reflected on the complainant's credibility. Her estimates of time could not have been other than approximate and they were not events which she would have been timing.

Finally, a point was made about the complainant's evidence, that she was watching a particular cartoon on one or more of the occasions when offences occurred. It was true that these cartoons were on week days only and that her mother had agreed in cross-examination that the appellant visited generally on weekends. But her evidence, in my view, was not inconsistent with his being there on week days.

None of these inconsistencies, in my view, was more than one would expect from the evidence of a child recalling unpleasant events consisting of repeated acts of intercourse of a similar kind over a period of a year-and-a-half, many of them a considerable time before she was asked to recall them. The jury, in my opinion, was entitled to accept her evidence.

It was also submitted that the complainant had motivation to make false accusations. Perhaps she did, but this was put to the jury and they nevertheless accepted her. In my opinion, the appeal against conviction should be dismissed.

The appellant also, as I said, sought leave to appeal against his sentence which was one of three years imprisonment. He had no prior criminal history. He was 36 years of age, having been born on 7 July 1960. Mr Rafter, in making submissions for him in this respect, conceded that the sentence of three years imprisonment which was imposed by the learned sentencing Judge was within range, but contended that the learned sentencing Judge should have added a recommendation for parole after nine to 12 months.

Given the circumstances of this case and the trial, that submission, in my view, is a very difficult one to sustain. The matters which were relied on by the learned sentencing Judge in imposing the sentence which he did involved unsurprisingly the serious nature of the conduct, the appellant being the natural father of the complainant, that this was a gross breach of trust, that the child's sexuality will be compromised, that the appellant exhibited no paternal instincts towards the complainant and, in fact, clearly rejects her.

In his favour he took into account the fact that the appellant had been a conscientious member of the armed forces and that since his discharge he had been, apart from a brief period, in constant employment with the Caboolture Shire Council. He also took into account the appellant's unfortunate background which included being placed in a boys' home for about 11 years.

The only matter which could be contended for on his behalf as possibly justifying a recommendation was, however, that the applicant suffered a heart attack which meant that he would be on medication for the rest of his life. However, as Mr Rafter frankly conceded, no medical report was given or evidence given as to the effect that imprisonment might have upon his medical condition, and no evidence was given of any difficulties which he might have in adapting with that condition to prison life.

In those circumstances, in my view, there would have been no justification for a recommendation for early parole and I would refuse the application for leave to appeal against sentence.

PINCUS JA: I agree with the reasons which Mr Justice Davies has given but wish to say something for myself about the additional ground. Mr Rafter, for the appellant, complained of a sentence in the summing-up which he said, in effect, might have given the impression that if the three acts mentioned in that sentence were proved, then the Crown must succeed. The suggestion Mr Rafter made amounted to this: that it would have been better, and indeed was necessary, that the Judge add to that sentence an explanation that the Crown could still fail, having proved the three acts, to establish the unlawful relationship alleged in the indictment. It is my view that, reading the summing-up as a whole, it was clear enough that that was the Crown's position. Having said that, I am inclined to agree with the suggestion which was made, that it would have been better if the sentence itself had been qualified by an immediate addition of that explanation.

In the circumstances of this case, and having regard to the passages in the summing-up to which reference was made during the course of argument, it appears to me that the jury must have clearly understood what they had to consider. I agree with the orders which are proposed by Mr Justice Davies.