R v M [2000] QCA 20

Director of Public Prosecutions (Queensland) for respondent

[1] McMURDO P: I have read the reasons for judgment of Davies JA in which he sets out the relevant facts and issues. I am in general agreement with those reasons but wish to make the following additional comments.

[2] As to the complainant's unclear evidence in her statement to police tendered under s 93A of the Evidence Act 1977 in which she describes the offences but then says that she was asleep at the time the offences occurred, the complainant may well have meant she had been asleep, was awakened by the appellant's conduct, but remained drowsy; the issue was not touched upon in cross-examination. For the reasons given by Davies JA, the complainant's evidence on this point alone or when combined with the other issues raised by the appellant does not demonstrate that the conviction was unsafe and unsatisfactory.

[3] I agree with Davies JA that the learned trial judge was entitled to admit the evidence of fresh complaint. That evidence was able to support the credit of the complainant in respect of all of her evidence, including the s 93A statement. The learned judge gave proper directions as to the use to be made of that evidence pointing out it was not evidence of guilt and leaving it to the jury to conclude whether or not they were satisfied it was evidence which showed consistency of conduct or whether, as the defence submitted, it showed that her conduct was inconsistent. There can be no proper complaint of the admissibility of the evidence or of the directions given to the jury in respect of it.

[4] Despite s 632 of the Criminal Code, a judge is required to warn a jury about the unreliability of the evidence of a witness where the facts of the case require such a warning to avoid a risk of miscarriage of justice, as long as the warning does not suggest that a class of complainants is unreliable: see Robinson v The Queen.[1]

[5] This was a case where different judges may have formed different views as to whether a warning was necessary. Here, the judge directed the jury that the complainant was a child and in assessing her evidence they should consider that a young child may have difficulty understanding or remembering and describing past events and may be prone to imagination and suggestion. The judge also carefully pointed out the specific weaknesses in her evidence relied upon by the defence when summarising the defence case for the jury. After summarising the prosecution case, he added:

"You could not convict of any charge unless you are satisfied beyond reasonable doubt that [the complainant] was speaking the truth about that incident in the interview that she gave on 5 March 1998 to the police officer and when she gave evidence before us."

[6] In these circumstances a further special direction to them to exercise caution before accepting her evidence was not necessary to avoid a risk of miscarriage of justice.

[7] I particularly note my agreement with Davies JA's comments as to the undesirability of the direction that the jury have a number of different duties; although the jury may have a duty to the accused, to the community and to themselves, the duty is the same, namely, to give a true verdict according to the evidence, convicting the accused person only if satisfied on the evidence of the person's guilt beyond reasonable doubt. The direction given may suggest a conflict between these duties when in fact there is none. However, when the summing up is considered as a whole, the jury's duty was made very clear and there is no ensuing risk of a miscarriage of justice.

[8] I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused, and with the orders proposed by Davies JA.

[9] DAVIES JA: The appellant was convicted after a trial in the District Court on 1 June 1999 on 10 counts of indecently dealing with his daughter. He appeals against his convictions and seeks leave to appeal against his sentences which were for an effective term of two and a half years imprisonment.

[10] The counts relate to two separate incidents, one which was alleged to have occurred between 13 and 17 November 1997 and the other which was alleged to have occurred on 31 January 1998. The complainant was born on 17 November 1987. She was therefore about 10 when the offences were alleged to have been committed and about 11½ when she gave evidence at the appellant's trial.

[11] The principal evidence for the prosecution and the only evidence directly implicating the appellant in the offences was that of the complainant. Her evidence consisted of a recorded interview admitted under s 93A of the Evidence Act 1977 and her oral evidence in court. The learned trial judge also admitted into evidence, over objection from the appellant's counsel, statements from the complainant's younger half-sister and from her mother that, on 3 March 1988, the complainant told them of the appellant's offences against her on 31 January.

[12] At the hearing of this appeal the Court allowed the appellant leave to add two grounds of appeal to the one ground contained in the notice of appeal. As amended the three grounds were as follows:

1. That the verdict was unsafe and unsatisfactory in all the circumstances.

2. That the learned trial judge erred in admitting, as evidence of fresh complaint, evidence that the complainant complained on 3 March 1998 to her stepsister [sic] and to her mother, and in directing the jury on the use they could make of that evidence as evidence of fresh complaint.

3. That the learned trial judge erred in directions to the jury on the evidence of the complainant, and in particular in failing to direct the jury to the effect that they should exercise caution before accepting her evidence because of her age and because there was no independent evidence tending to support or confirm her evidence of indecent dealing.

[13] It is convenient to discuss those grounds in that order.

1. That the verdict was unsafe and unsatisfactory in all the circumstances.

[14] Under this ground the appellant's counsel raised three points arising from the evidence of the complainant which, he submitted, together meant that on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[2] Those were the complainant's evidence as to the number of times that she stayed with the appellant, a doubt arising from her evidence as to whether she stayed with him after Christmas 1997 and her evidence that she was asleep at the time she said the offences occurred. Of these by far the greatest reliance was place on the second. The appellant, who gave evidence, agreed that the complainant and her siblings visited him on a number of occasions but denied the commission of any of the offences.

[15] In the statement admitted under s 93A the complainant said that she went to the appellant's house "almost every weekend" although it must be accepted that she was speaking of a limited period during which the appellant lived in close proximity to the residence in which she was staying with her mother and her siblings. It is also unclear whether the complainant, in saying this, was speaking of every occasion upon which she visited the appellant or only those occasions on which she stayed overnight. She agreed in cross-examination that she did not "stay over there" every weekend that he was living there. It was put to her that she stayed at his place about five or six times and she suggested it was about a dozen times. The complainant's mother agreed that it was about five or six times. However nothing seems to turn on this. The dates of the alleged offences were specifically identified and there is, in my view, no reason to doubt the complainant's evidence in respect of those because she may have been mistaken as to the total number of times upon which she stayed overnight at the appellant's house.

[16] The second point concerns the incident particularized as having occurred on or about 31 January 1998. In the s 93A statement, which consisted of an interview which she had with police on 5 March 1998 she identified this occasion as being in February 1998 and as being about a month before the interview. This was confirmed by the evidence of her mother who was quite definite in her evidence that the complainant and her siblings stayed with the appellant overnight on 31 January 1998. However it is true that, in the course of her cross-examination, the complainant appeared to agree that she did not stay overnight at the appellant's house after Christmas 1997. However an examination of that cross-examination leaves room for doubt as to what she was agreeing to. In the first place Christmas is identified in the questioning as the time when the pool filter broke so it is unclear whether her answers are related in timing to her recollection of when the pool filter broke or to Christmas. Secondly, when she was specifically asked whether she agreed that she did not come over after that Christmas period to stay she answered "not for a while". Her evidence was given on 31 May 1999, nearly a year and three months after her police interview which was only a little over a month after the alleged incident of 31 January 1998.

[17] The complainant's sister K was uncertain as to whether they stayed at the appellant's house after Christmas. She was 14 when she gave evidence and 13 when these events occurred. Her brother S, who was 12 when he gave evidence and 11 at the time of the alleged offences said that they did not stay at their father's residence after the Christmas period. The question is whether it was open to the jury to accept the evidence of the complainant in her s 93A statement, corroborated as it was in this respect by that of her mother, that she stayed with the appellant overnight on or about 31 January 1998 or whether, because of the complainant's later answers in cross-examination and the evidence of her brother, the jury ought to have had a reasonable doubt as to this. In my view the jury might reasonably have thought that the most reliable evidence on this question was that of the complainant's mother who appeared to be under no doubt as to this. They might reasonably also have thought that, so far as the complainant's evidence is concerned, her earliest recollection on 5 March would have been the most reliable in this respect. They might also have thought that the other children had no specific reason to recall the date on which the last of the overnight stays occurred.

[18] The complainant's evidence that she was asleep at the time the offences were occurring is, in my view, of little significance. Read in context it is unclear what the complainant was attempting to say in this respect. It may simply have demonstrated a reluctance to answer too many questions about the matter. What is clear is that she demonstrated a clear recollection of what she said the appellant did to her on each of these occasions, which is plainly inconsistent with her having been asleep when the alleged offences occurred.

[19] In my view none of these matters, either separately or together justify a conclusion that the verdict was unsafe or unsatisfactory.

2. That the learned trial judge erred in admitting, as evidence of fresh complaint, evidence that the complainant complained on 3 March 1998 to her stepsister [sic] and to her mother, and in directing the jury on the use they could make of that evidence as evidence of fresh complaint.

[20] The complaint which the complainant first made to her half-sister and then to her mother was made about a month after the incident on 31 January but several months after the November incident. Objection was taken to its admission and the learned trial judge admitted it as evidence of fresh complaint in respect of the 31 January incident but not in respect of the November incident.

[21] In support of this ground Mr Hamlyn-Harris for the appellant made two submissions. The first was that the learned trial judge was wrong in concluding that this was evidence of fresh complaint in respect of the offences alleged to have occurred on 31 January 1998. The second was that, although it is conceded that the learned trial judge gave directions which would ordinarily be appropriate in respect of evidence admitted as evidence of fresh complaint, his Honour was wrong in admitting the evidence or in directing the jury that it could be evidence of fresh complaint in respect of the complainant's evidence given under s 93A because that was evidence which was taken only a few days after the complaint; and it could not have buttressed the credit of the complainant in her evidence given in court because, in that evidence, she did not speak of an incident occurring on 31 January.

[22] Evidence of fresh, or as it is sometimes called recent complaint by a complainant in a sexual offence case is admissible as an exception to the general rule that evidence of previous consistent statements is not admissible.[3] Such a complaint may be cogent proof of consistency with the victim's evidence of commission of the offence thereby making that evidence more credible. It is, however, relevant only to the credibility of the complainant's evidence; it is not evidence of the truth of the facts stated by the complainant.[4]

[23] There are some unsatisfactory aspects of this principle. By far the most important of these, for present purposes, is the doubtful validity, in a case of sexual abuse of a child by a person who has the child's trust and confidence, of the assumption on which it is based, that an innocent victim would complain within a reasonable time after the offence was committed.[5] Scientific opinion and empirical studies[6] as well as common sense suggest many reasons why children would be reluctant to report such sexual abuse and consequently why they might not report it at all or might do so only after considerable delay; love or fear of the offender, a feeling of shame at what has occurred, fear of the consequence for themselves or the family unit, a perception that they would not be believed and a reluctance to talk about sexual matters are some of these.[7]

[24] However accepting, as we must, that, to be admissible, the complaint must be made "at the earliest reasonable opportunity",[8] what is the earliest reasonable opportunity must depend on the circumstances of the particular case which include the age of the child, his or her relationship with the offender, what is alleged to have been said by the offender about non-disclosure, the person to whom the disclosure is first made and whether it was made spontaneously or only after questioning.[9] Moreover, as Gaudron J pointed out in M v The Queen[10] views may differ as to what is reasonable opportunity. Consequently an appellate court should be reluctant to interfere with the conclusion of the trial judge in this respect unless it is plainly wrong.

[25] In the present case there were a number of factors which, in my view, justified his Honour's conclusion that, in the circumstances, the complainant's disclosure to her young half-sister was made at the earliest reasonable opportunity. The complainant loved her father but was also frightened of him. She was also afraid that she would not be believed. And, being reluctant to disclose his conduct to her mother she first told her younger half-sister. All of these facts were considered by the learned trial judge in determining this question, and in my opinion rightly so. In my view they justified his conclusion that, in the context in which the alleged abuser was her father, the complainant's first complaint to her younger sister about a month after the alleged abuse was at the first reasonable opportunity.

[26] Mr Hamlyn-Harris also submitted that the learned trial judge should not have admitted this evidence or should have told the jury that it was of no weight in buttressing the credit of the complainant in her s 93A statement, because that evidence was given only a few days later, and that it failed to buttress the credit of the complainant in her oral evidence because her oral evidence did not depose to the alleged incident of 31 January. In the first place, it should be said, that is to unduly compartmentalise the complainant's evidence for once it is accepted, as the jury were entitled to do, that the complainant was mistaken as to the date of the later offences when giving her oral evidence, they were also entitled to consider her oral evidence of those offences with her evidence in respect of them in her statement tendered under s 93A. And secondly, the use which can be made of the complaint for the purpose of buttressing the complainant's credit depends, not on its proximity in time to the making of the s 93A statement, but on its reasonable proximity in time to the alleged offence, having regard to the factors I have mentioned.[11]

[27] For those reasons, in my view, this ground fails.

3. That the learned trial judge erred in directions to the jury on the evidence of the complainant, and in particular in failing to direct the jury to the effect that they should exercise caution before accepting her evidence because of her age and because there was no independent evidence tending to support or confirm her evidence of indecent dealing.

[28] It must now be accepted that the effect of s 632 of the Criminal Code is that a judge should not tell the jury that the law regards complainants who are children as unreliable witnesses simply because they are children; but that it does not prevent a judge from making comments about the unreliability of the evidence of a witness arising out of the circumstances of the case.[12] Moreover, although the age of a witness, including a complainant, may be relevant to the reliability of that person's evidence, there is no reason to believe that, generally, the evidence of a child of 11 is likely, without more, to be less reliable than that of an adult.[13]

[29] In the present case the learned trial judge, in the course of his directions to the jury, made some general remarks with respect to the evidence of children which he suggested to the jury they should keep firmly in mind when assessing the complainant's evidence. Included amongst those remarks was a remark that young children may be prone to imagination and suggestion. He went on to say that it was for the jury to consider to what extent, if at all, those general considerations applied to the complainant's evidence. It may be that, in the light of current research, those remarks were too favourable to the appellant; but it could not be suggested that they did not go far enough.

[30] Neither the age of the complainant nor the absence of corroboration of her evidence were, without more, sufficient to require a direction that the jury should exercise caution before accepting her evidence. Of course the jury had to be satisfied beyond reasonable doubt but there is no complaint about the learned trial judge's directions in that respect.

[31] The question then is whether there is anything, arising out of the circumstances of this case, other than merely the complainant's age and the lack of corroboration, which required a direction to exercise caution before accepting her evidence. It is true, as has already been mentioned, that there was an inconsistency, in respect of counts six to 10, between, on the one hand, her evidence given pursuant to s 93A and, on the other, her oral evidence and the evidence of her brother, as to whether they could have occurred after Christmas 1997. However his Honour directed the jury's attention specifically to this inconsistency. He said:

"C [the complainant] gave evidence in court and when she was asked said that there was no overnight visit after the Christmas/New Year visit in 1997. S [the complainant's brother] gave similar evidence and K [the complainant's sister] said that she could not recall whether there had been a visit after the Christmas/New Year visit in 1997; that is a visit at which there was an overnight stay."

However his Honour then referred to the evidence of the complainant's mother. He said:

"Mrs O [the complainant's mother] said that she had a very clear recollection. She used the word 'vivid' to describe the state of her memory. She said there was a sleepover and she thought it was on Saturday, 31 January. It was at a point where, I think, two of the children had gone back to school but the older child at high school had not. So, Mrs O... said she had that very clear recollection that there was an overnight stay."

[32] No complaint is made about the accuracy or fairness of that direction. For present purposes it explains why the inconsistency in the complainant's evidence, to which I have referred, did not call for a direction that caution should be exercised in accepting her evidence generally. No other circumstance was identified which might require such a direction.

[33] In support of his submissions on this ground Mr Hamlyn-Harris, for the appellant, referred to a number of passages in the learned trial judge's summing up which, on one view, referred to alleged events as if they had occurred. But Mr Hamlyn-Harris quite properly conceded that these alone could not constitute a misdirection and that he relied on them only if, as he contended, a direction was otherwise required with respect to the reliability of the complainant's evidence. As there were no circumstances which, in my view, required any such direction it is unnecessary to consider these passages further.

[35] During the course of argument one of the members of the Court raised a further matter which, on one view, constituted an error by the learned trial judge in his directions to the jury. Those directions included a statement in which his Honour said:

"When deliberating on your verdict you have a number of different duties. You owe a duty to the accused and that is not to convict unless you are satisfied of his guilt beyond reasonable doubt. You owe a duty to the community from whom you are drawn and, of course, each of you owes a duty to yourself to be true to the oath that you swore to return a true verdict according to the evidence."

[36] It was suggested that the jury had one duty only, to decide according to the evidence.[14] It is no doubt correct to say that that is their duty, giving the accused the benefit of any reasonable doubt. To attempt to explain this further may cause confusion; consequently elaboration of this duty is undesirable. It is apparent from his Honour's following remarks and from his earlier statement that "Both sides are entitled to verdicts on the evidence" that his Honour's direction which I have quoted was an attempted elaboration of that duty. Although, as I have said, such elaboration is undesirable, Mr Hamlyn-Harris quite properly conceded that the quoted direction was balanced and did not prejudice a fair trial for his client. In the circumstances it is unnecessary to consider it further.

[37] The appeal against conviction should be dismissed.

[38] The appellant was sentenced to an effective term of two and a half years imprisonment, that is 18 months imprisonment on each of counts one to five and two and a half years imprisonment in respect of counts six to 10. He is 47 years of age having been born on 2 April 1952. Although he has no prior convictions for offences of a like nature he was convicted in 1986 of stealing and of 14 counts of false pretences and was sentenced to six months imprisonment; and, more importantly, in 1990 he was convicted of unlawful killing and armed robbery and was sentenced to an effective term of six years imprisonment. All of these offences were committed in April 1986.

[39] None of the offences in the present case involved penetration of the complainant or any violence or threats thereof. Nor did it involve any inducements or any coercion. On the other hand there appears to have been a degree of insistence on the appellant's part that, on the occasions when the children came to stay with him, the complainant sleep in his bed.

[40] The offences on each occasion consisted mainly of the appellant requiring the complainant to masturbate him and, more seriously, his rubbing his penis up against her in the vicinity of her anus and touching her vagina. Ejaculation occurred on at least one occasion.

[41] Unsurprisingly the offences have caused the complainant distress for which she has received and is still receiving some counselling. She is still reserved and is having some difficulty in interacting with others.

[42] As already appears from what has been said these matters went to trial. However it should be said in the appellant's favour that the complainant was not subjected to a rigorous cross-examination.

[43] The appellant has been in employment although was unemployed and on a disability pension, due to some medical problems, at the date of trial.

[44] It was contended for the appellant that an appropriate sentence would have been one of 18 months imprisonment. For that contention the appellant relied on Pham [1996] QCA 3; CA No 435 of 1995, 6 February 1996, Trapp CA No 433 of 1995, 8 February 1996, Watson CA No 255 of 1996, 27 August 1996, Kiellerup CA No 168 of 1998, 14 August 1998 and Solway [1995] QCA 374; CA Nos 164 and 187 of 1995, 22 August 1995.

[45] In Pham the applicant was 24 years of age and the proprietor of a shop which the complainant, who was much the same age as the complainant here, entered. As in this case, the matter went to trial. A sentence which had been imposed at trial of two years was reduced by this Court to one year. The factors which caused the Court to reduce that sentence in that way were that this was a single offence by a comparatively young first offender. And unlike the appellant here the applicant there was not in a position of trust. That case is plainly distinguishable because of the maturity of the appellant here, his previous criminal history and the fact that he was the victim's father.

[46] In Trapp the applicant was the child's uncle. The offences were of comparable seriousness to those here and that matter also went to trial. However the applicant had no prior criminal history. A sentence of 15 months imprisonment was not reduced on appeal to this Court. But the absence of prior criminal history and the more distant relationship between the offender and his victim distinguish that case from this. In any event, it is no more than a decision that the sentence imposed was not manifestly excessive.

[47] In Watson this Court again declined to reduce a sentence of 15 months imprisonment for offences of comparable magnitude to those here. However the applicant's prior criminal history was much less serious than that of the appellant here and he was merely a neighbour who had enticed the child into his house to show her word processing on his equipment. This case is also similarly distinguishable.

[48] In Kiellerup this Court refused to reduce a sentence of two years imprisonment for four counts of indecent dealing committed over a three and a half year period two of them involved digital penetration. Again the applicant was convicted after a trial. He was 23 or 24 when the offences occurred, had no prior convictions but had some minor convictions shortly after the commission of these offences. There was no position of trust involved. The offences there appear more serious than in this case. However there were plainly mitigating factors there which are not present here.

[49] Solway is a difficult case from which to draw any comparison because it is an Attorney's appeal which failed but in which two members of this Court plainly thought that the sentence was a low one. It was a sentence of two and a half years imprisonment fully suspended. It does not assist the appellant here.

[50] The cases to which I have referred show in my view that the sentence which was imposed here was rather high but not outside the appropriate range for the circumstances. The sentences relied on by the respondent, Clare CA No 170 of 1994, 1 September 1994, Mansfield CA No 261 of 1997, 6 August 1997 and M [1999] QCA 118; CA No 445 of 1998, 13 April 1999 although none is closely comparable to this, also support a conclusion that the sentence here was not manifestly excessive.

[51] I would therefore refuse the application for leave to appeal against the sentence.

[52] HELMAN J: I agree with the orders proposed by Davies JA and with his reasons, and also with the reasons of McMurdo P.

[1] [1999] HCA 42; (1999) 73 ALJR 1314.

[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; Jones v The Queen (1997) 191 CLR 439 at 450 - 452.

[3] The historical basis of this exception was discussed by this Court in R v Warner [1995] QCA 49; (1995) 78 ACrimR 383 at 384 - 386 and by Gaudron J in M v The Queen supra at 513 - 515.

[4] Kilby v R [1973] HCA 30; (1973) 129 CLR 460 at 472; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 444 - 445; Suresh v R [1998] HCA 23; (1998) 153 ALR 145 at [4]; Warner at 385, 386. I agree, with respect, with the criticism by Pincus JA in R v Schneider [1998] QCA 303; CA No 128 of 1998, 2 October 1998, of the statement made in the joint judgment of the High Court in Jones v The Queen [1997] HCA 12; (1997) 71 ALJR 538 at 539.

[5] M v The Queen at 515; Suresh at [5].

[6] See for example M Sauzier, "Disclosure of Child Sexual Abuse: For Better or Worse" (1989) 12 Psychiatric Clinics of North America, 455; D Glaser and S Frosh, Child Sexual Abuse (2nd edn) The Macmillan Press Ltd, London, 1993 at 11 - 13, 24 - 25; K Bussey, "The Competence of Child Witnesses" in G Calvert et al (eds) The Practice of Child Protection: Australian Approaches Hall & Iremonger, Sydney, 1992, p 69 at 73.

[7] M v The Queen per Gaudron J at 515; Suresh at [5].

[9] M v The Queen at 515; Warner at 386.

[11] There will be cases in which the s 93A statement will be both the first complaint, upon which reliance can be placed for this purpose, and the primary or even the only evidence of the complainant at the trial.

[12] Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314 at [19] and [20].

[13] K Bussey, "Allegations of Child Sexual Abuse: Accurate and Truthful Disclosures, False Allegations and False Denials" (1995) 7 (2) Current Issues in Criminal Justice 176, 183; M Dixon, "The Credibility of Children as Witnesses: Memory, Suggestibility, Fact and Fantasy" (1993) 20 (4) Brief 34; K Bussey, "The Competence of Child Witnesses" in G Calvert et al (eds) The Practice of Child Protection: Australian Approaches, Hal & Iremonger, Sydney, 1992, p 69; G Davies "Children in the Witness Box: Bridging the Credibility Gap" [1993] SydLawRw 24; (1993) 15(3) Sydney Law Review 283, 285.

[14] Jury Act 1995, s 50; Oaths Act 1867, s 22.